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State of Punjab Vs. Sardar Sewa Singh Gill & Others | that the land or any part thereof not required by the proposed Company shall revert to the Patiala State, who shall pay therefore a price equivalent to the original value of the land within 12 months less such reasonable compensation as may be assessed by the Minister in charge Development for damages done to the said land by the proposed Company in consequence of the removal of machinery, buildings, materials etc.Provided fourthly, that if, as soon as the Company is free to hand over the possession of such land, the same is not delivered by, the proposed Company to the Patiala State within reasonable time after it is no longer required for the said purpose, and there shall remain in or upon the said land any machinery, plant, building, structure stores and other works, erections and conveniences, the same shall, if not removed by the proposed Company within 24 calendar months, after notice in writing requiring their removal be given to the proposed Company by the Minister in charge Development be deemed to become the property of the Patiala State, and may be sold or disposed of for the benefit of the Patiala State, in such manner as they shall deem fit without liability. to pay any compensation or to account to the proposed company in respect thereof. Provided, however, that the said period of 24 months may be extension is necessary."State, in case they are satisfied that such an extention is necessary."3. On February 12, 1947 Messrs Sewa Santokh Brothers was incorporated and on May 27, 1948 the Company was incorporated. On April 20, 1948 prospectus of the Company as filed with the Registrar of Joint Stock Company, Patiala and on July 21, 1948 certificate for the commencement of business was granted to the Company. Admittedly the Company never went into production or ever erected the factory. On December 24, 1951 a petition for the winding up of the Company was filed by S. Sewa Singh Gill in the name of the Company. On February 26, 1952 two provisional liquidators of the Company were appointed namely S. Kartar Singh Kawatra and R. N. Sanghi. This petition was, however, dismissed on October 13, 1952 on the ground that it was not competent. On October 28, 1954 13 shareholders filed a petition for compulsory winding up of the Company and on 21st October 1955 an order for the compulsory winding up of the Company was passed by the PEPSU High Court. On the passing of this order the voluntary liquidators resigned and the Bank of Patiala was appointed as the Official Liquidator. The Bank of Patiala took over possession of the property of the Company and on August 13, 1959 auctioned its machinery. Various claim petitions were filed including L.M. 106 of 1957 and L.M. 32 of 1952 wherein, respondent no. 1 claimed various sums on account of expenses incurred including the land at Doraha. The petitions were heard by Mahajan, J. who by his order dated May 26, 1962 disallowed the claim of respondent no. 1 to the land but held that the land remained vested in the respondent Company till such time as State exercised its rights under the agreement of February 4, 1947.4. Against the judgment of the learned Single Judge the State of Punjab filed L.P.A. 304 of 1962 and respondent no. 1 filed L.P.A. 230 of 1962. The appeals were heard by Dulat and Pandit, JJ. who on May 8, 1964 allowed the appeal of the State to the extent that the land in dispute belonged to the State but its possession would remain with the Company till a valid notice was given by the State.In support of this appeal it was contended on behalf of the State of Punjab that the High Court was in error in holding that the first notice given by the Director of Industries to the provisional liquidators was not legally sufficient and the respondent no. 2 was not bound to give possession to the State unless a fresh notice was given. In our opinion the argument put forward on behalf of the appellant is well founded and must be accepted as correct. In the first place it is obvious that the title to the land has already vested in the State Government under the third proviso to cl. 6(a) of the Agreement because of the order of winding up of the Company made by the High Court. There is nothing in the agreement to suggest that the Company was entitled to be in possession of the property even after its title had vested in the State Government. The 4th proviso only states that if the Company does not deliver possession within reasonable time and if any machinery, plant, buildings or structures remain on the land the title to these also will vest in the State Government if the Company does not remove the structures or the machinery within 24 months from date of the notice. In the circumstances of the case we are of opinion that the respondents were given sufficient notice by the letter of the Director of Industries dated August 14, 1952. That notice satisfies the requirements of the fourth proviso of cl. 6(a) of the Agreement and the State is entitled to take possession of the land and other properties located therein within two years from date of that notice. It is necessary to state that according to P.W. 4 Jaswant Singh the buildings on the site are in an area of one bigha, the structure was pucca but temporary. It is the admitted case that the machinery has been sold by auction more than seven years back and only grass grows on the land. The evidence of Tarachand R. W. 1 also shows that a greater part of the land is barren and the machinery and other valuable properties had already been removed. Counsel on behalf of respondent no. 2 prayed that some further time may be given before the State takes possession of the properties. | 1[ds]In our opinion the argument put forward on behalf of the appellant is well founded and must be accepted as correct. In the first place it is obvious that the title to the land has already vested in the State Government under the third proviso to cl. 6(a) of the Agreement because of the order of winding up of the Company made by the High Court. There is nothing in the agreement to suggest that the Company was entitled to be in possession of the property even after its title had vested in the State Government. The 4th proviso only states that if the Company does not deliver possession within reasonable time and if any machinery, plant, buildings or structures remain on the land the title to these also will vest in the State Government if the Company does not remove the structures or the machinery within 24 months from date of the notice. In the circumstances of the case we are of opinion that the respondents were given sufficient notice by the letter of the Director of Industries dated August 14, 1952. That notice satisfies the requirements of the fourth proviso of cl. 6(a) of the Agreement and the State is entitled to take possession of the land and other properties located therein within two years from date of that notice. It is necessary to state that according to P.W. 4 Jaswant Singh the buildings on the site are in an area of one bigha, the structure was pucca but temporary. It is the admitted case that the machinery has been sold by auction more than seven years back and only grass grows on the land. The evidence of Tarachand R. W. 1 also shows that a greater part of the land is barren and the machinery and other valuable properties had already been removed | 1 | 1,626 | 331 | ### Instruction:
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that the land or any part thereof not required by the proposed Company shall revert to the Patiala State, who shall pay therefore a price equivalent to the original value of the land within 12 months less such reasonable compensation as may be assessed by the Minister in charge Development for damages done to the said land by the proposed Company in consequence of the removal of machinery, buildings, materials etc.Provided fourthly, that if, as soon as the Company is free to hand over the possession of such land, the same is not delivered by, the proposed Company to the Patiala State within reasonable time after it is no longer required for the said purpose, and there shall remain in or upon the said land any machinery, plant, building, structure stores and other works, erections and conveniences, the same shall, if not removed by the proposed Company within 24 calendar months, after notice in writing requiring their removal be given to the proposed Company by the Minister in charge Development be deemed to become the property of the Patiala State, and may be sold or disposed of for the benefit of the Patiala State, in such manner as they shall deem fit without liability. to pay any compensation or to account to the proposed company in respect thereof. Provided, however, that the said period of 24 months may be extension is necessary."State, in case they are satisfied that such an extention is necessary."3. On February 12, 1947 Messrs Sewa Santokh Brothers was incorporated and on May 27, 1948 the Company was incorporated. On April 20, 1948 prospectus of the Company as filed with the Registrar of Joint Stock Company, Patiala and on July 21, 1948 certificate for the commencement of business was granted to the Company. Admittedly the Company never went into production or ever erected the factory. On December 24, 1951 a petition for the winding up of the Company was filed by S. Sewa Singh Gill in the name of the Company. On February 26, 1952 two provisional liquidators of the Company were appointed namely S. Kartar Singh Kawatra and R. N. Sanghi. This petition was, however, dismissed on October 13, 1952 on the ground that it was not competent. On October 28, 1954 13 shareholders filed a petition for compulsory winding up of the Company and on 21st October 1955 an order for the compulsory winding up of the Company was passed by the PEPSU High Court. On the passing of this order the voluntary liquidators resigned and the Bank of Patiala was appointed as the Official Liquidator. The Bank of Patiala took over possession of the property of the Company and on August 13, 1959 auctioned its machinery. Various claim petitions were filed including L.M. 106 of 1957 and L.M. 32 of 1952 wherein, respondent no. 1 claimed various sums on account of expenses incurred including the land at Doraha. The petitions were heard by Mahajan, J. who by his order dated May 26, 1962 disallowed the claim of respondent no. 1 to the land but held that the land remained vested in the respondent Company till such time as State exercised its rights under the agreement of February 4, 1947.4. Against the judgment of the learned Single Judge the State of Punjab filed L.P.A. 304 of 1962 and respondent no. 1 filed L.P.A. 230 of 1962. The appeals were heard by Dulat and Pandit, JJ. who on May 8, 1964 allowed the appeal of the State to the extent that the land in dispute belonged to the State but its possession would remain with the Company till a valid notice was given by the State.In support of this appeal it was contended on behalf of the State of Punjab that the High Court was in error in holding that the first notice given by the Director of Industries to the provisional liquidators was not legally sufficient and the respondent no. 2 was not bound to give possession to the State unless a fresh notice was given. In our opinion the argument put forward on behalf of the appellant is well founded and must be accepted as correct. In the first place it is obvious that the title to the land has already vested in the State Government under the third proviso to cl. 6(a) of the Agreement because of the order of winding up of the Company made by the High Court. There is nothing in the agreement to suggest that the Company was entitled to be in possession of the property even after its title had vested in the State Government. The 4th proviso only states that if the Company does not deliver possession within reasonable time and if any machinery, plant, buildings or structures remain on the land the title to these also will vest in the State Government if the Company does not remove the structures or the machinery within 24 months from date of the notice. In the circumstances of the case we are of opinion that the respondents were given sufficient notice by the letter of the Director of Industries dated August 14, 1952. That notice satisfies the requirements of the fourth proviso of cl. 6(a) of the Agreement and the State is entitled to take possession of the land and other properties located therein within two years from date of that notice. It is necessary to state that according to P.W. 4 Jaswant Singh the buildings on the site are in an area of one bigha, the structure was pucca but temporary. It is the admitted case that the machinery has been sold by auction more than seven years back and only grass grows on the land. The evidence of Tarachand R. W. 1 also shows that a greater part of the land is barren and the machinery and other valuable properties had already been removed. Counsel on behalf of respondent no. 2 prayed that some further time may be given before the State takes possession of the properties.
### Response:
1
### Explanation:
In our opinion the argument put forward on behalf of the appellant is well founded and must be accepted as correct. In the first place it is obvious that the title to the land has already vested in the State Government under the third proviso to cl. 6(a) of the Agreement because of the order of winding up of the Company made by the High Court. There is nothing in the agreement to suggest that the Company was entitled to be in possession of the property even after its title had vested in the State Government. The 4th proviso only states that if the Company does not deliver possession within reasonable time and if any machinery, plant, buildings or structures remain on the land the title to these also will vest in the State Government if the Company does not remove the structures or the machinery within 24 months from date of the notice. In the circumstances of the case we are of opinion that the respondents were given sufficient notice by the letter of the Director of Industries dated August 14, 1952. That notice satisfies the requirements of the fourth proviso of cl. 6(a) of the Agreement and the State is entitled to take possession of the land and other properties located therein within two years from date of that notice. It is necessary to state that according to P.W. 4 Jaswant Singh the buildings on the site are in an area of one bigha, the structure was pucca but temporary. It is the admitted case that the machinery has been sold by auction more than seven years back and only grass grows on the land. The evidence of Tarachand R. W. 1 also shows that a greater part of the land is barren and the machinery and other valuable properties had already been removed
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KAMLESH Vs. SHRIRAM GENERAL INSURANCE COMPANY LTD | the policy by not immediately giving information to the Insurance Company. The State Commission has not given any importance to this delay and has allowed the insurance claim for full IDV of the vehicle. Clearly, the delay in giving intimation to the Insurance Company is an important factor, which should be taken into consideration while deciding the insurance claim. As observed above, the accident of the vehicle and consequently the vehicle catching fire are the proved facts, respondent/complainant is entitled to insurance claim. Honble Supreme Court in Amalendu Sahu vs. Oriental Insurance Co. Ltd. II(2010) C.P.J. 9 (S.C.), has observed: 14. In this connection reference may be made to a decision of National Commission in the case of New India Assurance Company Limited v. Narayan Prasad Appaprasad Pathak, reported in (2006) CPJ 144 (NC). In that case also the question was, whether the insurance company can repudiate the claims in a case where the vehicle carrying passengers and the driver did not have a proper driving licence and met with an accident. While granting claim on non-standard basis the National Commission set out in its judgment the guidelines issued by the Insurance Company about settling all such non-standard claims. The said guidelines are set out below:- table 9. Relying upon the above guidelines given by the Honble Supreme Court, it is seen that in the present matter one of the policy conditions has been clearly violated and that being an important condition, I deem it appropriate to allow the insurance claim @ 60% of the IDV of the vehicle. 10. On the basis of the above discussion, the first appeal No.797 of 2015 is partly allowed and the order of the State Commission is modified to the extent that instead of full IDV Rs.13,50,000/-, the appellant Company shall be liable to pay 60% of the IDV i.e. Rs.8,10,000/- (rupees eight lakh ten thousand only). This amount shall be paid by the Insurance Company along with 7% p.a. interest from the date of filing of the complaint. The litigation expenses of Rs.10,000/- awarded by the State Commission is maintained. The appellant is directed to comply with the order within 45 days from the date of service/receipt of this order. 7. In this appeal questioning the correctness of the decision of the National Commission, Mr. Ajay Kumar, learned advocate for the appellant submitted that the intimation was given as early as possible and there was no delay on part of the appellant; that reliance on the decision in Amalendu Sahu was not quite correct; and that the National Commission ought not to have reduced the claim amount. Ms. Meenakshi Midha, learned advocate appearing for the respondent supported the decision of the National Commission and submitted that there was delay in intimating the Insurance Company and as such there was breach of warranty/condition of Policy. She also submitted that the intimation to Police was given only on 6.6.2009 and therefore, the National Commission was justified in reducing the claim amount. 8. We have gone through the policy in question. Under the caption conditions which are part of the Policy, the relevant condition states:- 1. Notice shall be given in writing to the Company immediately upon the occurrence of any accidental loss or damage in the event of any claim and thereafter the insured shall give all such information and assistance as the Company shall require. Every letter claim writ summons and/or process or copy thereof shall be forwarded to the Company immediately on receipt by the Insured. Notice shall also be given in writing to the Company immediately the Insured shall have knowledge of any impending prosecution, inquest or fatal inquiry in respect of any occurrence which may give rise to a claim under this Policy. In case of theft or criminal act which may be the subject of a claim under this Policy the Insured shall give immediate notice to the police and co-operate with the Company in securing the conviction of the offender. 9. The aforesaid condition has two limbs:- i) Notice shall be given in writing to the Company immediately upon the occurrence of any accidental loss or damage; and ii) In case of theft or criminal act which may be the subject of a claim under this Policy, the Insured shall give immediate notice to the police. The second limb contemplates issuance of immediate notice to the police only in cases of theft or criminal act. In the event of an occurrence of any accidental loss or damage, the condition does not contemplate issuance of any notice to the police. 10. The case that the appellant came up with was of an accidental loss, and, therefore, if no immediate notice was issued to the police, there was no infraction on part of the appellant. The accident had occurred during the night of 1 st and 2 nd June, 2009 and the intimation was given to the respondent on 3 rd of June, 2009. In our view, the notice was not delayed on any count and did satisfy the requirements contemplated by the conditions in the policy. 11. The decision of this Court in Amalendu Sahoo (supra) had dealt with fact situation where, in violation of the terms of the policy, the vehicle in question was being used for hire and, therefore, the guidelines, as set out in para 8 of the order impugned herein were referred to and relied upon. As there was no violation on part of the appellant, the principle on the basis of which the admissible claim could be reduced, does not apply. 12. In our view, there was thus no reason for the National Commission to hold that there was any violation of the requisite conditions on part of the appellant and there was no justification to reduce the claim to the extent of 60% of the IDV of the vehicle. The conclusions drawn and the directions issued by the State Commission, in our view, were quite correct and did not call for any interference. | 1[ds]9. The aforesaid condition has two limbs:i) Notice shall be given in writing to the Company immediately upon the occurrence of any accidental loss or damage; andii) In case of theft or criminal act which may be the subject of a claim under this Policy, the Insured shall give immediate notice to the policeThe second limb contemplates issuance of immediate notice to the police only in cases of theft or criminal act. In the event of an occurrence of any accidental loss or damage, the condition does not contemplate issuance of any notice to the police12. In our view, there was thus no reason for the National Commission to hold that there was any violation of the requisite conditions on part of the appellant and there was no justification to reduce the claim to the extent of 60% of the IDV of the vehicle. The conclusions drawn and the directions issued by the State Commission, in our view, were quite correct and did not call for any interference. | 1 | 2,260 | 188 | ### Instruction:
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the policy by not immediately giving information to the Insurance Company. The State Commission has not given any importance to this delay and has allowed the insurance claim for full IDV of the vehicle. Clearly, the delay in giving intimation to the Insurance Company is an important factor, which should be taken into consideration while deciding the insurance claim. As observed above, the accident of the vehicle and consequently the vehicle catching fire are the proved facts, respondent/complainant is entitled to insurance claim. Honble Supreme Court in Amalendu Sahu vs. Oriental Insurance Co. Ltd. II(2010) C.P.J. 9 (S.C.), has observed: 14. In this connection reference may be made to a decision of National Commission in the case of New India Assurance Company Limited v. Narayan Prasad Appaprasad Pathak, reported in (2006) CPJ 144 (NC). In that case also the question was, whether the insurance company can repudiate the claims in a case where the vehicle carrying passengers and the driver did not have a proper driving licence and met with an accident. While granting claim on non-standard basis the National Commission set out in its judgment the guidelines issued by the Insurance Company about settling all such non-standard claims. The said guidelines are set out below:- table 9. Relying upon the above guidelines given by the Honble Supreme Court, it is seen that in the present matter one of the policy conditions has been clearly violated and that being an important condition, I deem it appropriate to allow the insurance claim @ 60% of the IDV of the vehicle. 10. On the basis of the above discussion, the first appeal No.797 of 2015 is partly allowed and the order of the State Commission is modified to the extent that instead of full IDV Rs.13,50,000/-, the appellant Company shall be liable to pay 60% of the IDV i.e. Rs.8,10,000/- (rupees eight lakh ten thousand only). This amount shall be paid by the Insurance Company along with 7% p.a. interest from the date of filing of the complaint. The litigation expenses of Rs.10,000/- awarded by the State Commission is maintained. The appellant is directed to comply with the order within 45 days from the date of service/receipt of this order. 7. In this appeal questioning the correctness of the decision of the National Commission, Mr. Ajay Kumar, learned advocate for the appellant submitted that the intimation was given as early as possible and there was no delay on part of the appellant; that reliance on the decision in Amalendu Sahu was not quite correct; and that the National Commission ought not to have reduced the claim amount. Ms. Meenakshi Midha, learned advocate appearing for the respondent supported the decision of the National Commission and submitted that there was delay in intimating the Insurance Company and as such there was breach of warranty/condition of Policy. She also submitted that the intimation to Police was given only on 6.6.2009 and therefore, the National Commission was justified in reducing the claim amount. 8. We have gone through the policy in question. Under the caption conditions which are part of the Policy, the relevant condition states:- 1. Notice shall be given in writing to the Company immediately upon the occurrence of any accidental loss or damage in the event of any claim and thereafter the insured shall give all such information and assistance as the Company shall require. Every letter claim writ summons and/or process or copy thereof shall be forwarded to the Company immediately on receipt by the Insured. Notice shall also be given in writing to the Company immediately the Insured shall have knowledge of any impending prosecution, inquest or fatal inquiry in respect of any occurrence which may give rise to a claim under this Policy. In case of theft or criminal act which may be the subject of a claim under this Policy the Insured shall give immediate notice to the police and co-operate with the Company in securing the conviction of the offender. 9. The aforesaid condition has two limbs:- i) Notice shall be given in writing to the Company immediately upon the occurrence of any accidental loss or damage; and ii) In case of theft or criminal act which may be the subject of a claim under this Policy, the Insured shall give immediate notice to the police. The second limb contemplates issuance of immediate notice to the police only in cases of theft or criminal act. In the event of an occurrence of any accidental loss or damage, the condition does not contemplate issuance of any notice to the police. 10. The case that the appellant came up with was of an accidental loss, and, therefore, if no immediate notice was issued to the police, there was no infraction on part of the appellant. The accident had occurred during the night of 1 st and 2 nd June, 2009 and the intimation was given to the respondent on 3 rd of June, 2009. In our view, the notice was not delayed on any count and did satisfy the requirements contemplated by the conditions in the policy. 11. The decision of this Court in Amalendu Sahoo (supra) had dealt with fact situation where, in violation of the terms of the policy, the vehicle in question was being used for hire and, therefore, the guidelines, as set out in para 8 of the order impugned herein were referred to and relied upon. As there was no violation on part of the appellant, the principle on the basis of which the admissible claim could be reduced, does not apply. 12. In our view, there was thus no reason for the National Commission to hold that there was any violation of the requisite conditions on part of the appellant and there was no justification to reduce the claim to the extent of 60% of the IDV of the vehicle. The conclusions drawn and the directions issued by the State Commission, in our view, were quite correct and did not call for any interference.
### Response:
1
### Explanation:
9. The aforesaid condition has two limbs:i) Notice shall be given in writing to the Company immediately upon the occurrence of any accidental loss or damage; andii) In case of theft or criminal act which may be the subject of a claim under this Policy, the Insured shall give immediate notice to the policeThe second limb contemplates issuance of immediate notice to the police only in cases of theft or criminal act. In the event of an occurrence of any accidental loss or damage, the condition does not contemplate issuance of any notice to the police12. In our view, there was thus no reason for the National Commission to hold that there was any violation of the requisite conditions on part of the appellant and there was no justification to reduce the claim to the extent of 60% of the IDV of the vehicle. The conclusions drawn and the directions issued by the State Commission, in our view, were quite correct and did not call for any interference.
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Bihar State Housing Board Vs. State Of Bihar | computing any of the periods referred to in the first proviso, the period during which any action or proceeding to be taken in pursuance of the notification issued under Section 4, sub-section (1), is stayed by an order of a court shall be excluded.Explanation 2 - Where the compensation to be awarded for such property is to paid out of the funds of a corporation owned of controlled by the State, such compensation shall be deemed to be compensation paid out of public revenue.(2) Every declaration shall be published in the official Gazette, and in two daily newspapers circulating in the locality in which the land is situate of which at least one shall be in the regional language, and the Collector shall cause public notice of the substance of such declaration to be given at convenient places in the said locality (the last of the dates of such publication and the giving of such public notice, being hereinafter referred to as the date of the publication of the declaration), and such declaration shall state the district or other territorial division in which the land is situate, the purpose for which it is needed, its approximate area, and, where a plan shall have been made of the land, the place where such plan may be inspected. (Emphasis supplied)* * *11A. Period within which an award shall be made (1) The Collector shall make an award under Section 11 within a period of two years from the date of the publication of the declaration and if no award is made within that period, the entire proceedings for the acquisition of the and shall lapse:Provided that in a case where the said declaration has been published before the commencement of the Land Acquisition (Amendment) Act, 1984, the award shall be made within a period of two years from such commencement.Explanation - In computing the period of two years referred to in this section, the period during which any action or proceeding to be taken in pursuance of the said declaration is stayed by an order of a court shall be excluded." 7. The crucial words in Section 11A "within a period of two years from the date of publication of the declaration". Section 6(2) deals with the various modes of publication, as enjoined by the legislature and what is envisaged by the Statute is a conjoint publication, by all such methods. Various modes as prescribed in the provision itself are (a) publication in the official gazette, (b) publication in two daily newspapers circulating in the locality in which the land is situate of which at least one shall be in the regional language and (c) public notice of substance of such declaration at convenient places in the locality. There is no option left with any one to given up or waive any one or other of the modes and all such modes have to be strictly resorted to. Sub-section (2) of Section 6 therefore necessarily makes it abundantly clear that the last of the dates of the publication and giving of such public notice shall "hereinafter" be referred to as the date of publication of the declaration. Therefore, the expression "date of publication of declaration" appearing in Section 11A a stage subsequent to Section 6, answering the situation "hereinafter" has to be the last of the dates out of the three modes of publication ordained by the statute. In substance the triumvirate modes are cumulative and inseparable in the sense that unless all the three modes are resorted to and completed, there is no scope for the limitation period of two years beginning to run or for the penal consequence envisaged ensuing therefrom. 8. In Krishi Utpadan Mandi Samiti and Anr. vs. Makrand Singh and others (1995(2) SCC 497) while considering the various provisions (in which only the period of limitation was changed by amending Act 68 of 1984) it was noted that there are there modes of publication and the three steps are as indicated supra. 9. If one takes note of the parenthesis appearing in Sub-Section (2) of Section 6, t is clear that reference to the subsequent provisions of the Act to the date of publication of declaration has to be determined as the last of the dates of the publication and the giving of public notice. As the date of publication by local publication was the last at that point of time i.e. on 15.3.1991 the award on 25.3.1992 was not beyond the prescribed period of limitation. 10. The decision in Kaliyappans case (supra) was on different aspect of the problem raised in the factual position presented in that case, and did not deal with the question of the nature involved in the present appeal. Even in that case, this Court observed that under Section 11A, the Collector is empowered to make an award within two years from the date of publication of the declaration meaning thereby that it will be till the expiry of the last date of the period of two years. The further question as to how the said period is to be computed did not arise in that case, as in the present case. Therefore, no assistance is available to the respondent-land owner from that decision. On the contrary, the decision in Eugenio Misquita and others vs. State of Goa and others (1997 (8) SCC 47 ) was rendered on identical legal set up after advertising to the relevant distinctions in computing the period of limitation for making the declaration under Section 6 in contrast to the one for computing the period of limitation stipulated for making the award under Section 11A of the Act, in the special context of the mandate contained in Sub-section (2) of Section 6 of the act. We are in respectful agreement with the principles laid down therein and the same squarely governs this case, in favour of the stand taken for the appellant, the limitation having necessarily to be computed from the last of the publication viz., 15.3.1991. | 1[ds]10. The decision in Kaliyappans case (supra) was on different aspect of the problem raised in the factual position presented in that case, and did not deal with the question of the nature involved in the present appeal. Even in that case, this Court observed that under Section 11A, the Collector is empowered to make an award within two years from the date of publication of the declaration meaning thereby that it will be till the expiry of the last date of the period of two years. The further question as to how the said period is to be computed did not arise in that case, as in the present case. Therefore, no assistance is available to the respondent-land owner from that decision. On the contrary, the decision in Eugenio Misquita and others vs. State of Goa and others (1997 (8) SCC 47 ) was rendered on identical legal set up after advertising to the relevant distinctions in computing the period of limitation for making the declaration under Section 6 in contrast to the one for computing the period of limitation stipulated for making the award under Section 11A of the Act, in the special context of the mandate contained in Sub-section (2) of Section 6 of the act. We are in respectful agreement with the principles laid down therein and the same squarely governs this case, in favour of the stand taken for the appellant, the limitation having necessarily to be computed from the last of the publication viz., 15.3.1991. | 1 | 2,094 | 279 | ### Instruction:
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### Input:
computing any of the periods referred to in the first proviso, the period during which any action or proceeding to be taken in pursuance of the notification issued under Section 4, sub-section (1), is stayed by an order of a court shall be excluded.Explanation 2 - Where the compensation to be awarded for such property is to paid out of the funds of a corporation owned of controlled by the State, such compensation shall be deemed to be compensation paid out of public revenue.(2) Every declaration shall be published in the official Gazette, and in two daily newspapers circulating in the locality in which the land is situate of which at least one shall be in the regional language, and the Collector shall cause public notice of the substance of such declaration to be given at convenient places in the said locality (the last of the dates of such publication and the giving of such public notice, being hereinafter referred to as the date of the publication of the declaration), and such declaration shall state the district or other territorial division in which the land is situate, the purpose for which it is needed, its approximate area, and, where a plan shall have been made of the land, the place where such plan may be inspected. (Emphasis supplied)* * *11A. Period within which an award shall be made (1) The Collector shall make an award under Section 11 within a period of two years from the date of the publication of the declaration and if no award is made within that period, the entire proceedings for the acquisition of the and shall lapse:Provided that in a case where the said declaration has been published before the commencement of the Land Acquisition (Amendment) Act, 1984, the award shall be made within a period of two years from such commencement.Explanation - In computing the period of two years referred to in this section, the period during which any action or proceeding to be taken in pursuance of the said declaration is stayed by an order of a court shall be excluded." 7. The crucial words in Section 11A "within a period of two years from the date of publication of the declaration". Section 6(2) deals with the various modes of publication, as enjoined by the legislature and what is envisaged by the Statute is a conjoint publication, by all such methods. Various modes as prescribed in the provision itself are (a) publication in the official gazette, (b) publication in two daily newspapers circulating in the locality in which the land is situate of which at least one shall be in the regional language and (c) public notice of substance of such declaration at convenient places in the locality. There is no option left with any one to given up or waive any one or other of the modes and all such modes have to be strictly resorted to. Sub-section (2) of Section 6 therefore necessarily makes it abundantly clear that the last of the dates of the publication and giving of such public notice shall "hereinafter" be referred to as the date of publication of the declaration. Therefore, the expression "date of publication of declaration" appearing in Section 11A a stage subsequent to Section 6, answering the situation "hereinafter" has to be the last of the dates out of the three modes of publication ordained by the statute. In substance the triumvirate modes are cumulative and inseparable in the sense that unless all the three modes are resorted to and completed, there is no scope for the limitation period of two years beginning to run or for the penal consequence envisaged ensuing therefrom. 8. In Krishi Utpadan Mandi Samiti and Anr. vs. Makrand Singh and others (1995(2) SCC 497) while considering the various provisions (in which only the period of limitation was changed by amending Act 68 of 1984) it was noted that there are there modes of publication and the three steps are as indicated supra. 9. If one takes note of the parenthesis appearing in Sub-Section (2) of Section 6, t is clear that reference to the subsequent provisions of the Act to the date of publication of declaration has to be determined as the last of the dates of the publication and the giving of public notice. As the date of publication by local publication was the last at that point of time i.e. on 15.3.1991 the award on 25.3.1992 was not beyond the prescribed period of limitation. 10. The decision in Kaliyappans case (supra) was on different aspect of the problem raised in the factual position presented in that case, and did not deal with the question of the nature involved in the present appeal. Even in that case, this Court observed that under Section 11A, the Collector is empowered to make an award within two years from the date of publication of the declaration meaning thereby that it will be till the expiry of the last date of the period of two years. The further question as to how the said period is to be computed did not arise in that case, as in the present case. Therefore, no assistance is available to the respondent-land owner from that decision. On the contrary, the decision in Eugenio Misquita and others vs. State of Goa and others (1997 (8) SCC 47 ) was rendered on identical legal set up after advertising to the relevant distinctions in computing the period of limitation for making the declaration under Section 6 in contrast to the one for computing the period of limitation stipulated for making the award under Section 11A of the Act, in the special context of the mandate contained in Sub-section (2) of Section 6 of the act. We are in respectful agreement with the principles laid down therein and the same squarely governs this case, in favour of the stand taken for the appellant, the limitation having necessarily to be computed from the last of the publication viz., 15.3.1991.
### Response:
1
### Explanation:
10. The decision in Kaliyappans case (supra) was on different aspect of the problem raised in the factual position presented in that case, and did not deal with the question of the nature involved in the present appeal. Even in that case, this Court observed that under Section 11A, the Collector is empowered to make an award within two years from the date of publication of the declaration meaning thereby that it will be till the expiry of the last date of the period of two years. The further question as to how the said period is to be computed did not arise in that case, as in the present case. Therefore, no assistance is available to the respondent-land owner from that decision. On the contrary, the decision in Eugenio Misquita and others vs. State of Goa and others (1997 (8) SCC 47 ) was rendered on identical legal set up after advertising to the relevant distinctions in computing the period of limitation for making the declaration under Section 6 in contrast to the one for computing the period of limitation stipulated for making the award under Section 11A of the Act, in the special context of the mandate contained in Sub-section (2) of Section 6 of the act. We are in respectful agreement with the principles laid down therein and the same squarely governs this case, in favour of the stand taken for the appellant, the limitation having necessarily to be computed from the last of the publication viz., 15.3.1991.
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M/s. Universal Cylinders Limited Vs. The Commercial Taxes Officer | any sum charged for anything done by the dealer in respect of the goods at the time of or before the delivery thereof."9. Reference may also be made to Section 2(44) of the Rajasthan Sales Tax Act, 1994 which defines turnover as under:"2(44) "turnover" means the aggregate amount received or receivable by a dealer for sales as referred to in clause (38) including the purchase price of the goods which are subject to purchase tax under section 11 of the Act;Explanation : Tax charged or collected and shown separately in the sale bill/cash memorandum or in the accounts shall not form part of turnover."10. The High Court held that since the words paid, payable, amount received and or receivable have been used in the aforesaid two sections, the assessee was entitled to receive the amount of Rs.682/per cylinder and if he has given any discount, he cannot claim refund of the same and the price of the cylinder cannot be said to be Rs.645/per cylinder. The High Court also held that the goods were delivered at Rs.682/per cylinder and this amount was collected and therefore, no amount should be refunded.11. We have heard learned counsel for the parties and a number of decisions have been cited.12. In IFB Industries Limited v. State of Kerala (2012) 4 SCC 618 ), the issue was with regard to the definition of turnover. This court held that to take the benefit of trade discount and to make it eligible for exemption, all that the assessee is required to prove was that the purchaser had paid only the sum originally charged less the discount and that this should be a regular practice in the trade.13. Reliance has also been placed on the judgment of the Gujarat High Court in ONGC v. State of Gujarat (2014 SCC Online Guj 15385 (Tax Appeal No. 50 of 2014), wherein in similar circumstances, it was held that the discount does not form part of the sale price. A similar view was taken by the Madhya Pradesh High Court in Gail India Ltd. v. State of M.P. (2014) 72, VST 161). The facts of this case were that the petitioner company GAIL, a Public Sector Undertaking, was doing business of supply of various petroleum products including LPG. The price of LPG and kerosene was regulated and controlled by the Public Planning and Analysis Cell (PPAC). The assessee supplied LPG to the oil companies on the basis of provisional price and final bill invoice was issued after the price was settled by the PPAC and credit note or debit note was issued. The High Court after referring to the judgment of this Court in IFB Industries Ltd. (supra), held that both the provisional price and the final price are controlled by the PPAC. The change in sale price is due to the direction by the PPAC and is not within the control of the assessee. It held that even though the credit note may have been issued on the basis of the provisional price, the price to be taken into consideration for calculating the turnover and the sale price must be the actual price received by the assessee.14. Learned counsel for the respondent has relied upon a judgment of this Court in the case of MRF Ltd. v. Collector of Central Excise, Madras (1997) 5 SCC 104). We are of the opinion that this judgment has no relevance to this case since it is a judgment arising out of the Excise Act where the tax is attracted the moment the goods are removed from the factory gate.15. In our view, a bare reading of Section 2(39) of the Rajasthan Sales Tax Act, which defines "sale price" clearly indicates that it is the price which is either paid or payable to a dealer as consideration for the sale. The definition itself makes it clear that any sum by way of any discount or rebate according to the practice normally prevailing in the trade shall be deducted and shall not be included in the sale price. The definition of turnover means the aggregate amount received or receivable by a dealer.16. In the instant case, when the orders were placed with the assessee, the price was not finalized by the MoP & NG. There was a clear cut stipulation in the purchase order that the price of Rs.682/is only a provisional price subject to review and it was clearly understood by the parties that the final price applicable after 01.07.1999 will be the price as approved by the MoP & NG. Therefore, though the assessee may have received Rs.682/per cylinder, it was under a legal obligation only to receive that price which was fixed by the MoP & NG. This price could have been higher than Rs.682/per cylinder, in which event the assessee would have had to collect and deposit with the Rajasthan Sales Tax Department sales tax on the excess amount. However, since the price of the cylinder has been reduced, the assessee cannot charge more than the price fixed, is bound to refund the excess amount collected and is therefore legally entitled to get refund of the tax paid on the excess amount.17. We may also note that it is undisputed that the assessee had to refund the amount of Rs.37/per cylinder to the oil companies. Therefore, what it has actually received is only Rs.645/per cylinder. What was legally receivable by it was the amount to be finally fixed by the MoP & NG i.e. Rs. 645/per cylinder. In the supply order only a provisional price was fixed. We have also taken into consideration the fact that the price fixation is not in the hands of the assessee. It is not even in the hands of the oil companies. The price is fixed by the MoP & NG and in such an eventuality, the amount actually payable is the amount to be fixed by the MoP & NG and that is also the amount which the assessee is legally entitled to receive. | 1[ds]14. Learned counsel for the respondent has relied upon a judgment of this Court in the case of MRF Ltd. v. Collector of Central Excise, Madras (1997) 5 SCC 104). We are of the opinion that this judgment has no relevance to this case since it is a judgment arising out of the Excise Act where the tax is attracted the moment the goods are removed from the factory gate.15. In our view, a bare reading of Section 2(39) of the Rajasthan Sales Tax Act, which defines "sale price" clearly indicates that it is the price which is either paid or payable to a dealer as consideration for the sale. The definition itself makes it clear that any sum by way of any discount or rebate according to the practice normally prevailing in the trade shall be deducted and shall not be included in the sale price. The definition of turnover means the aggregate amount received or receivable by a dealer.16. In the instant case, when the orders were placed with the assessee, the price was not finalized by the MoP & NG. There was a clear cut stipulation in the purchase order that the price of Rs.682/is only a provisional price subject to review and it was clearly understood by the parties that the final price applicable after 01.07.1999 will be the price as approved by the MoP & NG. Therefore, though the assessee may have received Rs.682/per cylinder, it was under a legal obligation only to receive that price which was fixed by the MoP & NG. This price could have been higher than Rs.682/per cylinder, in which event the assessee would have had to collect and deposit with the Rajasthan Sales Tax Department sales tax on the excess amount. However, since the price of the cylinder has been reduced, the assessee cannot charge more than the price fixed, is bound to refund the excess amount collected and is therefore legally entitled to get refund of the tax paid on the excess amount.17. We may also note that it is undisputed that the assessee had to refund the amount of Rs.37/per cylinder to the oil companies. Therefore, what it has actually received is only Rs.645/per cylinder. What was legally receivable by it was the amount to be finally fixed by the MoP & NG i.e. Rs. 645/per cylinder. In the supply order only a provisional price was fixed. We have also taken into consideration the fact that the price fixation is not in the hands of the assessee. It is not even in the hands of the oil companies. The price is fixed by the MoP & NG and in such an eventuality, the amount actually payable is the amount to be fixed by the MoP & NG and that is also the amount which the assessee is legally entitled to receive. | 1 | 1,804 | 520 | ### 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:
any sum charged for anything done by the dealer in respect of the goods at the time of or before the delivery thereof."9. Reference may also be made to Section 2(44) of the Rajasthan Sales Tax Act, 1994 which defines turnover as under:"2(44) "turnover" means the aggregate amount received or receivable by a dealer for sales as referred to in clause (38) including the purchase price of the goods which are subject to purchase tax under section 11 of the Act;Explanation : Tax charged or collected and shown separately in the sale bill/cash memorandum or in the accounts shall not form part of turnover."10. The High Court held that since the words paid, payable, amount received and or receivable have been used in the aforesaid two sections, the assessee was entitled to receive the amount of Rs.682/per cylinder and if he has given any discount, he cannot claim refund of the same and the price of the cylinder cannot be said to be Rs.645/per cylinder. The High Court also held that the goods were delivered at Rs.682/per cylinder and this amount was collected and therefore, no amount should be refunded.11. We have heard learned counsel for the parties and a number of decisions have been cited.12. In IFB Industries Limited v. State of Kerala (2012) 4 SCC 618 ), the issue was with regard to the definition of turnover. This court held that to take the benefit of trade discount and to make it eligible for exemption, all that the assessee is required to prove was that the purchaser had paid only the sum originally charged less the discount and that this should be a regular practice in the trade.13. Reliance has also been placed on the judgment of the Gujarat High Court in ONGC v. State of Gujarat (2014 SCC Online Guj 15385 (Tax Appeal No. 50 of 2014), wherein in similar circumstances, it was held that the discount does not form part of the sale price. A similar view was taken by the Madhya Pradesh High Court in Gail India Ltd. v. State of M.P. (2014) 72, VST 161). The facts of this case were that the petitioner company GAIL, a Public Sector Undertaking, was doing business of supply of various petroleum products including LPG. The price of LPG and kerosene was regulated and controlled by the Public Planning and Analysis Cell (PPAC). The assessee supplied LPG to the oil companies on the basis of provisional price and final bill invoice was issued after the price was settled by the PPAC and credit note or debit note was issued. The High Court after referring to the judgment of this Court in IFB Industries Ltd. (supra), held that both the provisional price and the final price are controlled by the PPAC. The change in sale price is due to the direction by the PPAC and is not within the control of the assessee. It held that even though the credit note may have been issued on the basis of the provisional price, the price to be taken into consideration for calculating the turnover and the sale price must be the actual price received by the assessee.14. Learned counsel for the respondent has relied upon a judgment of this Court in the case of MRF Ltd. v. Collector of Central Excise, Madras (1997) 5 SCC 104). We are of the opinion that this judgment has no relevance to this case since it is a judgment arising out of the Excise Act where the tax is attracted the moment the goods are removed from the factory gate.15. In our view, a bare reading of Section 2(39) of the Rajasthan Sales Tax Act, which defines "sale price" clearly indicates that it is the price which is either paid or payable to a dealer as consideration for the sale. The definition itself makes it clear that any sum by way of any discount or rebate according to the practice normally prevailing in the trade shall be deducted and shall not be included in the sale price. The definition of turnover means the aggregate amount received or receivable by a dealer.16. In the instant case, when the orders were placed with the assessee, the price was not finalized by the MoP & NG. There was a clear cut stipulation in the purchase order that the price of Rs.682/is only a provisional price subject to review and it was clearly understood by the parties that the final price applicable after 01.07.1999 will be the price as approved by the MoP & NG. Therefore, though the assessee may have received Rs.682/per cylinder, it was under a legal obligation only to receive that price which was fixed by the MoP & NG. This price could have been higher than Rs.682/per cylinder, in which event the assessee would have had to collect and deposit with the Rajasthan Sales Tax Department sales tax on the excess amount. However, since the price of the cylinder has been reduced, the assessee cannot charge more than the price fixed, is bound to refund the excess amount collected and is therefore legally entitled to get refund of the tax paid on the excess amount.17. We may also note that it is undisputed that the assessee had to refund the amount of Rs.37/per cylinder to the oil companies. Therefore, what it has actually received is only Rs.645/per cylinder. What was legally receivable by it was the amount to be finally fixed by the MoP & NG i.e. Rs. 645/per cylinder. In the supply order only a provisional price was fixed. We have also taken into consideration the fact that the price fixation is not in the hands of the assessee. It is not even in the hands of the oil companies. The price is fixed by the MoP & NG and in such an eventuality, the amount actually payable is the amount to be fixed by the MoP & NG and that is also the amount which the assessee is legally entitled to receive.
### Response:
1
### Explanation:
14. Learned counsel for the respondent has relied upon a judgment of this Court in the case of MRF Ltd. v. Collector of Central Excise, Madras (1997) 5 SCC 104). We are of the opinion that this judgment has no relevance to this case since it is a judgment arising out of the Excise Act where the tax is attracted the moment the goods are removed from the factory gate.15. In our view, a bare reading of Section 2(39) of the Rajasthan Sales Tax Act, which defines "sale price" clearly indicates that it is the price which is either paid or payable to a dealer as consideration for the sale. The definition itself makes it clear that any sum by way of any discount or rebate according to the practice normally prevailing in the trade shall be deducted and shall not be included in the sale price. The definition of turnover means the aggregate amount received or receivable by a dealer.16. In the instant case, when the orders were placed with the assessee, the price was not finalized by the MoP & NG. There was a clear cut stipulation in the purchase order that the price of Rs.682/is only a provisional price subject to review and it was clearly understood by the parties that the final price applicable after 01.07.1999 will be the price as approved by the MoP & NG. Therefore, though the assessee may have received Rs.682/per cylinder, it was under a legal obligation only to receive that price which was fixed by the MoP & NG. This price could have been higher than Rs.682/per cylinder, in which event the assessee would have had to collect and deposit with the Rajasthan Sales Tax Department sales tax on the excess amount. However, since the price of the cylinder has been reduced, the assessee cannot charge more than the price fixed, is bound to refund the excess amount collected and is therefore legally entitled to get refund of the tax paid on the excess amount.17. We may also note that it is undisputed that the assessee had to refund the amount of Rs.37/per cylinder to the oil companies. Therefore, what it has actually received is only Rs.645/per cylinder. What was legally receivable by it was the amount to be finally fixed by the MoP & NG i.e. Rs. 645/per cylinder. In the supply order only a provisional price was fixed. We have also taken into consideration the fact that the price fixation is not in the hands of the assessee. It is not even in the hands of the oil companies. The price is fixed by the MoP & NG and in such an eventuality, the amount actually payable is the amount to be fixed by the MoP & NG and that is also the amount which the assessee is legally entitled to receive.
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CENTRAL BANK OF INDIA & OTHERS Vs. DRAGENDRA SINGH JADON | date of his reinstatement), excepting denial of back wages is quashed and it is held that the petitioner shall be held entitled for all the benefits except back wages construing him to be in service from the date of removal till the date of actual reinstatement in service. Needless to mention that consequent upon the reinstatement, petitioner is entitled to regular salary from the date of Award subject to adjustment of the amount already paid under Section 17B of the Industrial Disputes Act. 12. Mr. Debal Banerji, Senior Advocate, appearing on behalf of the AppellantBank rightly argued that the principles of res judicata apply to writ proceedings under Articles 226 and 227 of the Constitution of India. There can be no dispute with the proposition. It is also true that the learned Single Judge of the High Court has not specifically dealt with the issue of res judicata raised by the Appellant-Bank. 13. Where an objection to the maintainability of any application/suit on an issue of law is not expressly dealt with, but the application/suit is entertained and disposed of on merits, the objection is deemed to have been rejected. The mere fact that an issue may not specifically have been dealt with, or reasons not specifically disclosed for decision on that issue, would not vitiate a judgment and order, that is otherwise correct. 14. It is not correct to say that the Respondent obtained the order of this Court by suppressing the fact that an earlier Writ Petition moved by the Respondent had been dismissed. In Paragraph 5.5 of the Writ Petition, the Respondent clearly stated that both the parties had challenged the Award of the Tribunal before the High Court - the Management of the Appellant-Bank against the entire Award and the Respondent against the part of the Award refusing back wages. Both the Writ Petitions i.e. W.P. No. 621 of 2009(S) filed by the Respondent and W.P. No. 3091 of 2009(S) filed by the Appellants were heard analogously and dismissed by a common order dated 8th May 2012. The Respondent not only mentioned the fact that he had initiated a Writ Petition earlier, but also annexed a copy of the common judgment and order of the High Court in the earlier Writ Petitions as Annexure P-4. 15. Even though, the Court may not have specifically dealt with the issue of res judicata raised by the Appellant-Bank as a preliminary issue, it is clear from the judgment and order of the Single Bench as also the impugned judgment and order of the Division Bench, that the second writ petition was not barred by the principles of res judicata or analogous principles. 16. The principles of res judicata are attracted where the matter in issue in the later proceedings have directly and substantially been in issue in earlier proceedings, between the same parties, in a competent forum having jurisdiction. Res judicata debars the Court from exercising jurisdiction to determine the lis, if it has attained finality between the parties. There is a distinction between res judicata and issue estoppel. In the case of issue estoppel, a party against whom an issue has been decided would be estopped from raising the same issue again. 17. Where an issue could have been raised in earlier proceedings, but has not been raised, the principle of constructive res judicata would be attracted to deny relief, for it is not the policy of law that multiple proceedings should be initiated in Court in relation to the same cause of action. Where the cause of action for initiation of proceedings is a distinctive cause of action, the principles of res judicata would not apply. 18. What was in issue in the earlier writ petition being Writ Petition No. 3091 of 2009(S) was the legality of the Award and other consequential benefits. The cause of action for Writ Petition No. 1571 of 2013 arose subsequently. The issue in the later writ petition was not whether the Respondent was entitled to back wages for the period prior to the date of the Award, which issue had been decided in the earlier writ petition, but the issue of fixation of pay and seniority upon reinstatement in service. The question in the second writ petition was, whether, for the purposes of seniority and fixation of pay, the Respondent was to be treated as a newly appointed employee and that too with effect from 18th August 2012, when the Award directing his reinstatement was dated 10th September 2008. 19. In our considered view, the learned Single Bench of the High Court rightly granted relief to the Respondent. By the impugned judgment and order, the Division Bench of the High Court dismissed the Appeal of the Appellants and directed that the Respondent would have to be treated in service from the date of removal till the date of actual reinstatement in service and would accordingly be entitled to seniority and the right to be considered for promotion, but would not be entitled to back wages. 20. We find no infirmity with the concurrent findings of the Single Bench and the Division Bench of the High Court. There is a difference between reappointment and reinstatement. Reinstatement means to return a person or thing to its previous position or status. An order of reinstatement puts a person back to the same position. 21. The Tribunal had granted the Respondent, the relief of reinstatement. Considering that the Respondent had not actually rendered service to the Appellant-Bank and that he had been earning in the intervening period, the Tribunal denied him back wages. The Tribunal and the High Court (both the Single Bench and the Division Bench) have in effect and substance found the termination of service of the Respondent to be wrongful. 22. The Appellant-Bank cannot take advantage of its own wrong of wrongfully dismissing the Respondent from service, to deny him the benefit of seniority, promotion and other benefits to which he would have been entitled, if he had attended to his duties. | 0[ds]12. Mr. Debal Banerji, Senior Advocate, appearing on behalf of the AppellantBank rightly argued that the principles of res judicata apply to writ proceedings under Articles 226 and 227 of the Constitution of India.There can be no dispute with the proposition. It is also true that the learned Single Judge of the High Court has not specifically dealt with the issue of res judicata raised by the Appellant-Bank.13. Where an objection to the maintainability of any application/suit on an issue of law is not expressly dealt with, but the application/suit is entertained and disposed of on merits, the objection is deemed to have been rejected. The mere fact that an issue may not specifically have been dealt with, or reasons not specifically disclosed for decision on that issue, would not vitiate a judgment and order, that is otherwise correct.14. It is not correct to say that the Respondent obtained the order of this Court by suppressing the fact that an earlier Writ Petition moved by the Respondent had been dismissed. In Paragraph 5.5 of the Writ Petition, the Respondent clearly stated that both the parties had challenged the Award of the Tribunal before the High Court - the Management of the Appellant-Bank against the entire Award and the Respondent against the part of the Award refusing back wages. Both the Writ Petitions i.e. W.P. No. 621 of 2009(S) filed by the Respondent and W.P. No. 3091 of 2009(S) filed by the Appellants were heard analogously and dismissed by a common order dated 8th May 2012. The Respondent not only mentioned the fact that he had initiated a Writ Petition earlier, but also annexed a copy of the common judgment and order of the High Court in the earlier Writ Petitions as Annexure P-4.15. Even though, the Court may not have specifically dealt with the issue of res judicata raised by the Appellant-Bank as a preliminary issue, it is clear from the judgment and order of the Single Bench as also the impugned judgment and order of the Division Bench, that the second writ petition was not barred by the principles of res judicata or analogous principles.17. Where an issue could have been raised in earlier proceedings, but has not been raised, the principle of constructive res judicata would be attracted to deny relief, for it is not the policy of law that multiple proceedings should be initiated in Court in relation to the same cause of action. Where the cause of action for initiation of proceedings is a distinctive cause of action, the principles of res judicata would not apply.18. What was in issue in the earlier writ petition being Writ Petition No. 3091 of 2009(S) was the legality of the Award and other consequential benefits. The cause of action for Writ Petition No. 1571 of 2013 arose subsequently. The issue in the later writ petition was not whether the Respondent was entitled to back wages for the period prior to the date of the Award, which issue had been decided in the earlier writ petition, but the issue of fixation of pay and seniority upon reinstatement in service. The question in the second writ petition was, whether, for the purposes of seniority and fixation of pay, the Respondent was to be treated as a newly appointed employee and that too with effect from 18th August 2012, when the Award directing his reinstatement was dated 10th September 2008.19. In our considered view, the learned Single Bench of the High Court rightly granted relief to the Respondent. By the impugned judgment and order, the Division Bench of the High Court dismissed the Appeal of the Appellants and directed that the Respondent would have to be treated in service from the date of removal till the date of actual reinstatement in service and would accordingly be entitled to seniority and the right to be considered for promotion, but would not be entitled to back wages.20. We find no infirmity with the concurrent findings of the Single Bench and the Division Bench of the High Court. There is a difference between reappointment and reinstatement. Reinstatement means to return a person or thing to its previous position or status. An order of reinstatement puts a person back to the same position.21. The Tribunal had granted the Respondent, the relief of reinstatement. Considering that the Respondent had not actually rendered service to the Appellant-Bank and that he had been earning in the intervening period, the Tribunal denied him back wages. The Tribunal and the High Court (both the Single Bench and the Division Bench) have in effect and substance found the termination of service of the Respondent to be wrongful.22. The Appellant-Bank cannot take advantage of its own wrong of wrongfully dismissing the Respondent from service, to deny him the benefit of seniority, promotion and other benefits to which he would have been entitled, if he had attended to his duties. | 0 | 2,122 | 895 | ### 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:
date of his reinstatement), excepting denial of back wages is quashed and it is held that the petitioner shall be held entitled for all the benefits except back wages construing him to be in service from the date of removal till the date of actual reinstatement in service. Needless to mention that consequent upon the reinstatement, petitioner is entitled to regular salary from the date of Award subject to adjustment of the amount already paid under Section 17B of the Industrial Disputes Act. 12. Mr. Debal Banerji, Senior Advocate, appearing on behalf of the AppellantBank rightly argued that the principles of res judicata apply to writ proceedings under Articles 226 and 227 of the Constitution of India. There can be no dispute with the proposition. It is also true that the learned Single Judge of the High Court has not specifically dealt with the issue of res judicata raised by the Appellant-Bank. 13. Where an objection to the maintainability of any application/suit on an issue of law is not expressly dealt with, but the application/suit is entertained and disposed of on merits, the objection is deemed to have been rejected. The mere fact that an issue may not specifically have been dealt with, or reasons not specifically disclosed for decision on that issue, would not vitiate a judgment and order, that is otherwise correct. 14. It is not correct to say that the Respondent obtained the order of this Court by suppressing the fact that an earlier Writ Petition moved by the Respondent had been dismissed. In Paragraph 5.5 of the Writ Petition, the Respondent clearly stated that both the parties had challenged the Award of the Tribunal before the High Court - the Management of the Appellant-Bank against the entire Award and the Respondent against the part of the Award refusing back wages. Both the Writ Petitions i.e. W.P. No. 621 of 2009(S) filed by the Respondent and W.P. No. 3091 of 2009(S) filed by the Appellants were heard analogously and dismissed by a common order dated 8th May 2012. The Respondent not only mentioned the fact that he had initiated a Writ Petition earlier, but also annexed a copy of the common judgment and order of the High Court in the earlier Writ Petitions as Annexure P-4. 15. Even though, the Court may not have specifically dealt with the issue of res judicata raised by the Appellant-Bank as a preliminary issue, it is clear from the judgment and order of the Single Bench as also the impugned judgment and order of the Division Bench, that the second writ petition was not barred by the principles of res judicata or analogous principles. 16. The principles of res judicata are attracted where the matter in issue in the later proceedings have directly and substantially been in issue in earlier proceedings, between the same parties, in a competent forum having jurisdiction. Res judicata debars the Court from exercising jurisdiction to determine the lis, if it has attained finality between the parties. There is a distinction between res judicata and issue estoppel. In the case of issue estoppel, a party against whom an issue has been decided would be estopped from raising the same issue again. 17. Where an issue could have been raised in earlier proceedings, but has not been raised, the principle of constructive res judicata would be attracted to deny relief, for it is not the policy of law that multiple proceedings should be initiated in Court in relation to the same cause of action. Where the cause of action for initiation of proceedings is a distinctive cause of action, the principles of res judicata would not apply. 18. What was in issue in the earlier writ petition being Writ Petition No. 3091 of 2009(S) was the legality of the Award and other consequential benefits. The cause of action for Writ Petition No. 1571 of 2013 arose subsequently. The issue in the later writ petition was not whether the Respondent was entitled to back wages for the period prior to the date of the Award, which issue had been decided in the earlier writ petition, but the issue of fixation of pay and seniority upon reinstatement in service. The question in the second writ petition was, whether, for the purposes of seniority and fixation of pay, the Respondent was to be treated as a newly appointed employee and that too with effect from 18th August 2012, when the Award directing his reinstatement was dated 10th September 2008. 19. In our considered view, the learned Single Bench of the High Court rightly granted relief to the Respondent. By the impugned judgment and order, the Division Bench of the High Court dismissed the Appeal of the Appellants and directed that the Respondent would have to be treated in service from the date of removal till the date of actual reinstatement in service and would accordingly be entitled to seniority and the right to be considered for promotion, but would not be entitled to back wages. 20. We find no infirmity with the concurrent findings of the Single Bench and the Division Bench of the High Court. There is a difference between reappointment and reinstatement. Reinstatement means to return a person or thing to its previous position or status. An order of reinstatement puts a person back to the same position. 21. The Tribunal had granted the Respondent, the relief of reinstatement. Considering that the Respondent had not actually rendered service to the Appellant-Bank and that he had been earning in the intervening period, the Tribunal denied him back wages. The Tribunal and the High Court (both the Single Bench and the Division Bench) have in effect and substance found the termination of service of the Respondent to be wrongful. 22. The Appellant-Bank cannot take advantage of its own wrong of wrongfully dismissing the Respondent from service, to deny him the benefit of seniority, promotion and other benefits to which he would have been entitled, if he had attended to his duties.
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0
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12. Mr. Debal Banerji, Senior Advocate, appearing on behalf of the AppellantBank rightly argued that the principles of res judicata apply to writ proceedings under Articles 226 and 227 of the Constitution of India.There can be no dispute with the proposition. It is also true that the learned Single Judge of the High Court has not specifically dealt with the issue of res judicata raised by the Appellant-Bank.13. Where an objection to the maintainability of any application/suit on an issue of law is not expressly dealt with, but the application/suit is entertained and disposed of on merits, the objection is deemed to have been rejected. The mere fact that an issue may not specifically have been dealt with, or reasons not specifically disclosed for decision on that issue, would not vitiate a judgment and order, that is otherwise correct.14. It is not correct to say that the Respondent obtained the order of this Court by suppressing the fact that an earlier Writ Petition moved by the Respondent had been dismissed. In Paragraph 5.5 of the Writ Petition, the Respondent clearly stated that both the parties had challenged the Award of the Tribunal before the High Court - the Management of the Appellant-Bank against the entire Award and the Respondent against the part of the Award refusing back wages. Both the Writ Petitions i.e. W.P. No. 621 of 2009(S) filed by the Respondent and W.P. No. 3091 of 2009(S) filed by the Appellants were heard analogously and dismissed by a common order dated 8th May 2012. The Respondent not only mentioned the fact that he had initiated a Writ Petition earlier, but also annexed a copy of the common judgment and order of the High Court in the earlier Writ Petitions as Annexure P-4.15. Even though, the Court may not have specifically dealt with the issue of res judicata raised by the Appellant-Bank as a preliminary issue, it is clear from the judgment and order of the Single Bench as also the impugned judgment and order of the Division Bench, that the second writ petition was not barred by the principles of res judicata or analogous principles.17. Where an issue could have been raised in earlier proceedings, but has not been raised, the principle of constructive res judicata would be attracted to deny relief, for it is not the policy of law that multiple proceedings should be initiated in Court in relation to the same cause of action. Where the cause of action for initiation of proceedings is a distinctive cause of action, the principles of res judicata would not apply.18. What was in issue in the earlier writ petition being Writ Petition No. 3091 of 2009(S) was the legality of the Award and other consequential benefits. The cause of action for Writ Petition No. 1571 of 2013 arose subsequently. The issue in the later writ petition was not whether the Respondent was entitled to back wages for the period prior to the date of the Award, which issue had been decided in the earlier writ petition, but the issue of fixation of pay and seniority upon reinstatement in service. The question in the second writ petition was, whether, for the purposes of seniority and fixation of pay, the Respondent was to be treated as a newly appointed employee and that too with effect from 18th August 2012, when the Award directing his reinstatement was dated 10th September 2008.19. In our considered view, the learned Single Bench of the High Court rightly granted relief to the Respondent. By the impugned judgment and order, the Division Bench of the High Court dismissed the Appeal of the Appellants and directed that the Respondent would have to be treated in service from the date of removal till the date of actual reinstatement in service and would accordingly be entitled to seniority and the right to be considered for promotion, but would not be entitled to back wages.20. We find no infirmity with the concurrent findings of the Single Bench and the Division Bench of the High Court. There is a difference between reappointment and reinstatement. Reinstatement means to return a person or thing to its previous position or status. An order of reinstatement puts a person back to the same position.21. The Tribunal had granted the Respondent, the relief of reinstatement. Considering that the Respondent had not actually rendered service to the Appellant-Bank and that he had been earning in the intervening period, the Tribunal denied him back wages. The Tribunal and the High Court (both the Single Bench and the Division Bench) have in effect and substance found the termination of service of the Respondent to be wrongful.22. The Appellant-Bank cannot take advantage of its own wrong of wrongfully dismissing the Respondent from service, to deny him the benefit of seniority, promotion and other benefits to which he would have been entitled, if he had attended to his duties.
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Commissioner Of Income-Tax, Punjab Vs. Daulat Ram Khanna | (1) of the Code of Civil Procedure, and as the Income-tax Officer was not a Court, it was not incumbent on him to affix a copy of the notice on the notice board of the Income-tax Office. The Tribunal, therefore, held that the notice was properly served and set aside the order of the Appellate Assistant Commissioner.5. The High Court, following its earlier decision in Jhabar Mal Chokhani v. Commr. of Income-tax, (1963) 49 ITR 391 : (AIR 1963 Punj 486), held that the substituted service was invalid and answered the question in the negative. It also refused to allow the counsel for the Revenue to raise the point that the notice under S. 34 had been served in time even if the service be taken to have been effected after March31, 1954. He had relied before the High Court on the Indian Income-tax (Amendment) Act, 1959, and the decision of this Court in S. C. Prashar v. Vasantsen Dwarkadas, (1963) 49 ITR (SC) 1 (AIR 1963 SC 1356) .6. The learned counsel for the Revenue, Mr. B. Sen urges that in view of Commr. of Income-tax v. Straw Products Ltd., (1966) 60 ITR 156 : (AIR 1966 SC 1113 ), the High Court erred in not allowing the second point to be raised and secondly, he contends that the earlier case of the High Court in (1963) 49 ITR 391 : (AIR 1963 Punj 486), was wrongly decided. As we agree with the latter contention, it is not necessary to deal with the first point raised by him.7. Under S. 63 of the Income-tax Act a notice may be served as if it were a summons issued by the Court under the Code of Civil Procedure. The answer to the question depends on the true interpretation of 0. V R. 20 (l) of the Civil Procedure Code which reads as follows:"(1) Where the Court is satisfied that there is reason to believe that the defendant is keeping out of the way for the purpose of avoiding service, or that for any other reason the summons cannot be served in the ordinary way, the Court shall order the summons to be served by affixing a copy thereof in some conspicuous place in the courthouse, and also upon some conspicuous part of the. house (if any) in which the defendant is known to have last resided or carried on business or personally worked for gain, or in such other manner as the Court thinks fit., "8. Mr. Sen divides the above sub-rule into two parts. According to him, the first part deals with a copy of the summons being affixed in the Court house and another copy being affixed in some conspicuous part of the residential house or business premises. He says that it is not obligatory on the Court to adopt this method, but the Court can, in view of the circumstances, order the service of the notice in any other manner as it thinks fit. Mr. Sen further says that it would be noticed that the word "also" has not been repeated in the last ten words of the sub-rule, underlined above. He says that in a particular case it is in the discretion of the Court to order service of the notice by registered post or by affixing a copy thereof and then satisfying itself that the copy has been affixed in a proper manner.9. In our view, here is great deal of force, in what Mr. Sen urges. It seems to us that the last ten words in sub-r. (1) of R. 20, do confer a discretion on the Court to adopt any other manner of service. The sub rule prescribes one manner which the Court may follow and this manner consists of two acts; (l) affixing a copy of the summons in the Court house, and (2) affixing it in some conspicuous part of the residential house or the business premises of the defendant. If the High Court were right we would expect that the word "also" would be repeated and inserted between the word "or" and "in" in the last ten words. The alternative manner which the Court decides to adopt for serving must of course be such as gives notice to the person to be served.10. The High Court in (1963) 49 ITR 391 : (AIR 1963 Punj 486), had relied on Deccan Co-operative Bank Ltd. v; Parsram Tolaram, AIR 1942 Sind 96, but that case considered O. 21, R. 46, sub-r. (2), and in our view, the High Court wrongly regarded that provision being in pari materia with O. V, R. 20 (l), because in R. 46 (2) the last ten words in O. V, R. 20 (1) which we have underlined (here in ) do not figure. The decision of the Patna High Court in Narendra Prasad Sinha v. Maharani Janki Kuer, AIR 1947 Pat 385 , is also distinguishable as it also deals with O. 21, R. 46 (2).11. It seems to us that the object of the Legislature in giving a discretion to the Court is to enable the Court to see that unnecessary steps are not taken and the service is effected in the most expeditious and best manner. For example, if the person to be served had, to the knowledge of the Court, temporarily gone outside India, the Court might have sent, even before the insertion of R. 20-A, the summons by registered post to his address abroad without affixing a copy thereof in the Court house. In Narendra Kishore Das v. Banamali Sahu Dibakar Sahu Firm, AIR 1951 Orissa 312, the Division Bench of the Orissa High Court held that "the last mode of service, namely "or in such other manner as the Court thinks fit" no doubt, gives the Court the jurisdiction to have the service of summons through registered post.12. In our opinion, the case of Jhabar Mal Chokhani v. Commr. of Income-tax, (1963) 49 ITR 391 : (AIR 1963 Punj 486), was wrongly decided. | 1[ds]As we agree with the latter contention, it is not necessary to deal with the first point raised by him.In our view, here is great deal of force, in what Mr. Sen urges. It seems to us that the last ten words in sub-r. (1) of R. 20, do confer a discretion on the Court to adopt any other manner of service. The sub rule prescribes one manner which the Court may follow and this manner consists of two acts; (l) affixing a copy of the summons in the Court house, and (2) affixing it in some conspicuous part of the residential house or the business premises of the defendant. If the High Court were right we would expect that the word "also" would be repeated and inserted between the word "or" and "in" in the last ten words. The alternative manner which the Court decides to adopt for serving must of course be such as gives notice to the person to be served.10. The High Court in (1963) 49 ITR 391 : (AIR 1963 Punj 486), had relied on Deccan Co-operative Bank Ltd. v; Parsram Tolaram, AIR 1942 Sind 96, but that case considered O. 21, R. 46, sub-r. (2), and in our view, the High Court wrongly regarded that provision being in pari materia with O. V, R. 20 (l), because in R. 46 (2) the last ten words in O. V, R. 20 (1) which we have underlined (here in ) do not figure. The decision of the Patna High Court in Narendra Prasad Sinha v. Maharani Janki Kuer, AIR 1947 Pat 385 , is also distinguishable as it also deals with O. 21, R. 46 (2).11. It seems to us that the object of the Legislature in giving a discretion to the Court is to enable the Court to see that unnecessary steps are not taken and the service is effected in the most expeditious and best manner. For example, if the person to be served had, to the knowledge of the Court, temporarily gone outside India, the Court might have sent, even before the insertion of R. 20-A, the summons by registered post to his address abroad without affixing a copy thereof in the Court house. In Narendra Kishore Das v. Banamali Sahu Dibakar Sahu Firm, AIR 1951 Orissa 312, the Division Bench of the Orissa High Court held that "the last mode of service, namely "or in such other manner as the Court thinks fit" no doubt, gives the Court the jurisdiction to have the service of summons through registered post.12. In our opinion, the case of Jhabar Mal Chokhani v. Commr. of Income-tax, (1963) 49 ITR 391 : (AIR 1963 Punj 486), was wrongly decided. | 1 | 1,586 | 537 | ### 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:
(1) of the Code of Civil Procedure, and as the Income-tax Officer was not a Court, it was not incumbent on him to affix a copy of the notice on the notice board of the Income-tax Office. The Tribunal, therefore, held that the notice was properly served and set aside the order of the Appellate Assistant Commissioner.5. The High Court, following its earlier decision in Jhabar Mal Chokhani v. Commr. of Income-tax, (1963) 49 ITR 391 : (AIR 1963 Punj 486), held that the substituted service was invalid and answered the question in the negative. It also refused to allow the counsel for the Revenue to raise the point that the notice under S. 34 had been served in time even if the service be taken to have been effected after March31, 1954. He had relied before the High Court on the Indian Income-tax (Amendment) Act, 1959, and the decision of this Court in S. C. Prashar v. Vasantsen Dwarkadas, (1963) 49 ITR (SC) 1 (AIR 1963 SC 1356) .6. The learned counsel for the Revenue, Mr. B. Sen urges that in view of Commr. of Income-tax v. Straw Products Ltd., (1966) 60 ITR 156 : (AIR 1966 SC 1113 ), the High Court erred in not allowing the second point to be raised and secondly, he contends that the earlier case of the High Court in (1963) 49 ITR 391 : (AIR 1963 Punj 486), was wrongly decided. As we agree with the latter contention, it is not necessary to deal with the first point raised by him.7. Under S. 63 of the Income-tax Act a notice may be served as if it were a summons issued by the Court under the Code of Civil Procedure. The answer to the question depends on the true interpretation of 0. V R. 20 (l) of the Civil Procedure Code which reads as follows:"(1) Where the Court is satisfied that there is reason to believe that the defendant is keeping out of the way for the purpose of avoiding service, or that for any other reason the summons cannot be served in the ordinary way, the Court shall order the summons to be served by affixing a copy thereof in some conspicuous place in the courthouse, and also upon some conspicuous part of the. house (if any) in which the defendant is known to have last resided or carried on business or personally worked for gain, or in such other manner as the Court thinks fit., "8. Mr. Sen divides the above sub-rule into two parts. According to him, the first part deals with a copy of the summons being affixed in the Court house and another copy being affixed in some conspicuous part of the residential house or business premises. He says that it is not obligatory on the Court to adopt this method, but the Court can, in view of the circumstances, order the service of the notice in any other manner as it thinks fit. Mr. Sen further says that it would be noticed that the word "also" has not been repeated in the last ten words of the sub-rule, underlined above. He says that in a particular case it is in the discretion of the Court to order service of the notice by registered post or by affixing a copy thereof and then satisfying itself that the copy has been affixed in a proper manner.9. In our view, here is great deal of force, in what Mr. Sen urges. It seems to us that the last ten words in sub-r. (1) of R. 20, do confer a discretion on the Court to adopt any other manner of service. The sub rule prescribes one manner which the Court may follow and this manner consists of two acts; (l) affixing a copy of the summons in the Court house, and (2) affixing it in some conspicuous part of the residential house or the business premises of the defendant. If the High Court were right we would expect that the word "also" would be repeated and inserted between the word "or" and "in" in the last ten words. The alternative manner which the Court decides to adopt for serving must of course be such as gives notice to the person to be served.10. The High Court in (1963) 49 ITR 391 : (AIR 1963 Punj 486), had relied on Deccan Co-operative Bank Ltd. v; Parsram Tolaram, AIR 1942 Sind 96, but that case considered O. 21, R. 46, sub-r. (2), and in our view, the High Court wrongly regarded that provision being in pari materia with O. V, R. 20 (l), because in R. 46 (2) the last ten words in O. V, R. 20 (1) which we have underlined (here in ) do not figure. The decision of the Patna High Court in Narendra Prasad Sinha v. Maharani Janki Kuer, AIR 1947 Pat 385 , is also distinguishable as it also deals with O. 21, R. 46 (2).11. It seems to us that the object of the Legislature in giving a discretion to the Court is to enable the Court to see that unnecessary steps are not taken and the service is effected in the most expeditious and best manner. For example, if the person to be served had, to the knowledge of the Court, temporarily gone outside India, the Court might have sent, even before the insertion of R. 20-A, the summons by registered post to his address abroad without affixing a copy thereof in the Court house. In Narendra Kishore Das v. Banamali Sahu Dibakar Sahu Firm, AIR 1951 Orissa 312, the Division Bench of the Orissa High Court held that "the last mode of service, namely "or in such other manner as the Court thinks fit" no doubt, gives the Court the jurisdiction to have the service of summons through registered post.12. In our opinion, the case of Jhabar Mal Chokhani v. Commr. of Income-tax, (1963) 49 ITR 391 : (AIR 1963 Punj 486), was wrongly decided.
### Response:
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### Explanation:
As we agree with the latter contention, it is not necessary to deal with the first point raised by him.In our view, here is great deal of force, in what Mr. Sen urges. It seems to us that the last ten words in sub-r. (1) of R. 20, do confer a discretion on the Court to adopt any other manner of service. The sub rule prescribes one manner which the Court may follow and this manner consists of two acts; (l) affixing a copy of the summons in the Court house, and (2) affixing it in some conspicuous part of the residential house or the business premises of the defendant. If the High Court were right we would expect that the word "also" would be repeated and inserted between the word "or" and "in" in the last ten words. The alternative manner which the Court decides to adopt for serving must of course be such as gives notice to the person to be served.10. The High Court in (1963) 49 ITR 391 : (AIR 1963 Punj 486), had relied on Deccan Co-operative Bank Ltd. v; Parsram Tolaram, AIR 1942 Sind 96, but that case considered O. 21, R. 46, sub-r. (2), and in our view, the High Court wrongly regarded that provision being in pari materia with O. V, R. 20 (l), because in R. 46 (2) the last ten words in O. V, R. 20 (1) which we have underlined (here in ) do not figure. The decision of the Patna High Court in Narendra Prasad Sinha v. Maharani Janki Kuer, AIR 1947 Pat 385 , is also distinguishable as it also deals with O. 21, R. 46 (2).11. It seems to us that the object of the Legislature in giving a discretion to the Court is to enable the Court to see that unnecessary steps are not taken and the service is effected in the most expeditious and best manner. For example, if the person to be served had, to the knowledge of the Court, temporarily gone outside India, the Court might have sent, even before the insertion of R. 20-A, the summons by registered post to his address abroad without affixing a copy thereof in the Court house. In Narendra Kishore Das v. Banamali Sahu Dibakar Sahu Firm, AIR 1951 Orissa 312, the Division Bench of the Orissa High Court held that "the last mode of service, namely "or in such other manner as the Court thinks fit" no doubt, gives the Court the jurisdiction to have the service of summons through registered post.12. In our opinion, the case of Jhabar Mal Chokhani v. Commr. of Income-tax, (1963) 49 ITR 391 : (AIR 1963 Punj 486), was wrongly decided.
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M/S CARAVEL SHIPPING SERVICES PVT. LTD Vs. M/S PREMIER SEA FOODS EXIM PVT. LTD | of Lading. The I.A. also pointed out that a Section 11 petition to appoint an Arbitrator in accordance with Clause 25, being the printed term in question, has also been filed in Chennai. The Sub-Court, Kochi, by its judgment dated 08.01.2013 dismissed the I.A., stating that printed conditions annexed to the Bill of Lading would not be binding upon the parties, and also that as no part of the cause of action arose in Chennai, the I.A. would have to be dismissed.4. In the Original Petition filed under Article 227 of the Constitution of India, the High Court referred to certain provisions of the Multimodal Transportation of Goods Act, 1993, and also stated that the arbitration clause, being in a printed condition, there being no intention to arbitrate and nothing to show that Clause 25 was brought to the notice of the respondent, agreed with the learned Sub-Judge and dismissed the Original Petition. A Review filed against the said judgment was also dismissed by a judgment dated 14.06.2016.5. Ms. Liz Mathew, learned counsel appearing on behalf of the appellant pointed out that printed conditions of the Bill of Lading were expressly referred to in the Bill of Lading and both parties were stated to be bound by the same. This being so, in accordance with Section 7(5) of the Arbitration Act read with this Court?s judgment in M.R. Engineers and Contractors Private Limited vs. Som Datt Builders Limited, (2009) 7 SCC 696 would make it clear that there was a reference in the contract to the arbitration clause, and since it is in writing and the reference is such that the arbitration clause formed part of the contract, according to her, both the courts were in error. She also pointed out to us that, in the meanwhile, the Madras High Court, by order dated 09.01.2015, has referred to the Kerala proceeding, but nonetheless applied the arbitration clause and appointed a Senior Advocate to arbitrate between the parties in that proceeding.6. On the other hand, Mr. P.A. Noor Muhamed, learned counsel for the respondent, invited our attention to Section 7(4) of the Act and argued that Section 7(4)(a) requires an arbitration agreement to be in a document that is signed by the parties. Since the Bill of Lading was not signed by his client, according to him, he is, therefore, not bound by the arbitration clause contained in that document. Further, he has also argued that at present the stage of the suit is that issues have been struck and one witness is being examined.7. Having heard learned counsel for both parties, we are of the view that the Bill of Lading makes it clear that the term ?Merchant? (which is defined in the Standard Conditions Governing Multimodal Transport Documents - Clause (1) (e) as meaning shipper, consigner or consignee) expressly agrees to be bound by all the terms, conditions, clauses and exceptions on both sides of the Bill of Lading whether typed, printed or otherwise. The arbitration clause, which is Clause 25 being a printed condition annexed to the Bill of Lading, reads as under:?25. Jurisdiction/Arbitration:The contract evidenced by the Bill of Lading shall be governed by the laws of India, and subject to the exclusive jurisdiction of court in Chennai only. Disputes/difference arising out of this contract and/or connection with the interpretation of any of its clauses shall be settled by arbitration in India in accordance with the Arbitration & Conciliation Act, 1996. The No. of Arbitrators shall be three, the Arbitrators shall be commercial persons the venue for arbitration shall be Chennai.? 8. A perusal of the same shows that the respondent has expressly agreed to be bound by the arbitration clause despite the fact that it is a printed condition annexed to the Bill of Lading. Secondly, it must be remembered that the respondent has itself relied upon the Bill of Lading as part of its cause of action to recover the sum of Rs.26,53,593/- in the suit filed by it. The respondent, therefore, cannot blow hot and cold and argue that for the purpose of its suit, it will rely upon the Bill of Lading (though unsigned) but for the purpose of arbitration, the requirement of the Arbitration Act is that the arbitration clause should be signed.9. In addition, we may indicate that the law in this behalf, in Jugal Kishore Rameshwardas vs. Mrs. Goolbai Hormusji, AIR 1955 SC 812 , is that an arbitration agreement needs to be in writing though it need not be signed. The fact that the arbitration agreement shall be in writing is continued in the 1996 Act in Section 7(3) thereof. Section 7(4) only further adds that an arbitration agreement would be found in the circumstances mentioned in the three sub-clauses that make up Section 7(4). This does not mean that in all cases an arbitration agreement needs to be signed. The only prerequisite is that it be in writing, as has been pointed out in Section 7(3).10. This being the case, the present is a clear case where, under Section 7(5) of the Act read with M.R. Engineers and Contractors Pvt. Ltd. (supra) (paras 22 & 24), the reference in the Bill of Lading is such as to make the arbitration clause part of the contract between the parties.11. The fact that the stage of the present suit is that a particular witness is being examined would not come in the way of the Section 8(3) application being allowed inasmuch as the Section 8(3) application was filed in the same year as that of the suit. We may also add that we have not gone into the Multimodal Transportation of Goods Act, 1993 for the reason that whether the present Bill of Lading is governed by the provisions of the Act (Section 26 in particular) or not would not make any difference to the position that an arbitration clause forms part of an agreement between the parties, and would, therefore, be governed by Section 7 of the Arbitration Act. | 1[ds]7. Having heard learned counsel for both parties, we are of the view that the Bill of Lading makes it clear that the term ?Merchant? (which is defined in the Standard Conditions Governing Multimodal Transport Documents - Clause (1) (e) as meaning shipper, consigner or consignee) expressly agrees to be bound by all the terms, conditions, clauses and exceptions on both sides of the Bill of Lading whether typed, printed or otherwise8. A perusal of the same shows that the respondent has expressly agreed to be bound by the arbitration clause despite the fact that it is a printed condition annexed to the Bill of Lading. Secondly, it must be remembered that the respondent has itself relied upon the Bill of Lading as part of its cause of action to recover the sum of Rs.26,53,593/- in the suit filed by it. The respondent, therefore, cannot blow hot and cold and argue that for the purpose of its suit, it will rely upon the Bill of Lading (though unsigned) but for the purpose of arbitration, the requirement of the Arbitration Act is that the arbitration clause should be signed9. In addition, we may indicate that the law in this behalf, in Jugal Kishore Rameshwardas vs. Mrs. Goolbai Hormusji, AIR 1955 SC 812 , is that an arbitration agreement needs to be in writing though it need not be signed. The fact that the arbitration agreement shall be in writing is continued in the 1996 Act in Section 7(3) thereof. Section 7(4) only further adds that an arbitration agreement would be found in the circumstances mentioned in the three sub-clauses that make up Section 7(4). This does not mean that in all cases an arbitration agreement needs to be signed. The only prerequisite is that it be in writing, as has been pointed out in Section 7(3)10. This being the case, the present is a clear case where, under Section 7(5) of the Act read with M.R. Engineers and Contractors Pvt. Ltd. (supra) (paras 22 & 24), the reference in the Bill of Lading is such as to make the arbitration clause part of the contract between the parties11. The fact that the stage of the present suit is that a particular witness is being examined would not come in the way of the Section 8(3) application being allowed inasmuch as the Section 8(3) application was filed in the same year as that of the suit. We may also add that we have not gone into the Multimodal Transportation of Goods Act, 1993 for the reason that whether the present Bill of Lading is governed by the provisions of the Act (Section 26 in particular) or not would not make any difference to the position that an arbitration clause forms part of an agreement between the parties, and would, therefore, be governed by Section 7 of the Arbitration Act. | 1 | 1,389 | 556 | ### 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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of Lading. The I.A. also pointed out that a Section 11 petition to appoint an Arbitrator in accordance with Clause 25, being the printed term in question, has also been filed in Chennai. The Sub-Court, Kochi, by its judgment dated 08.01.2013 dismissed the I.A., stating that printed conditions annexed to the Bill of Lading would not be binding upon the parties, and also that as no part of the cause of action arose in Chennai, the I.A. would have to be dismissed.4. In the Original Petition filed under Article 227 of the Constitution of India, the High Court referred to certain provisions of the Multimodal Transportation of Goods Act, 1993, and also stated that the arbitration clause, being in a printed condition, there being no intention to arbitrate and nothing to show that Clause 25 was brought to the notice of the respondent, agreed with the learned Sub-Judge and dismissed the Original Petition. A Review filed against the said judgment was also dismissed by a judgment dated 14.06.2016.5. Ms. Liz Mathew, learned counsel appearing on behalf of the appellant pointed out that printed conditions of the Bill of Lading were expressly referred to in the Bill of Lading and both parties were stated to be bound by the same. This being so, in accordance with Section 7(5) of the Arbitration Act read with this Court?s judgment in M.R. Engineers and Contractors Private Limited vs. Som Datt Builders Limited, (2009) 7 SCC 696 would make it clear that there was a reference in the contract to the arbitration clause, and since it is in writing and the reference is such that the arbitration clause formed part of the contract, according to her, both the courts were in error. She also pointed out to us that, in the meanwhile, the Madras High Court, by order dated 09.01.2015, has referred to the Kerala proceeding, but nonetheless applied the arbitration clause and appointed a Senior Advocate to arbitrate between the parties in that proceeding.6. On the other hand, Mr. P.A. Noor Muhamed, learned counsel for the respondent, invited our attention to Section 7(4) of the Act and argued that Section 7(4)(a) requires an arbitration agreement to be in a document that is signed by the parties. Since the Bill of Lading was not signed by his client, according to him, he is, therefore, not bound by the arbitration clause contained in that document. Further, he has also argued that at present the stage of the suit is that issues have been struck and one witness is being examined.7. Having heard learned counsel for both parties, we are of the view that the Bill of Lading makes it clear that the term ?Merchant? (which is defined in the Standard Conditions Governing Multimodal Transport Documents - Clause (1) (e) as meaning shipper, consigner or consignee) expressly agrees to be bound by all the terms, conditions, clauses and exceptions on both sides of the Bill of Lading whether typed, printed or otherwise. The arbitration clause, which is Clause 25 being a printed condition annexed to the Bill of Lading, reads as under:?25. Jurisdiction/Arbitration:The contract evidenced by the Bill of Lading shall be governed by the laws of India, and subject to the exclusive jurisdiction of court in Chennai only. Disputes/difference arising out of this contract and/or connection with the interpretation of any of its clauses shall be settled by arbitration in India in accordance with the Arbitration & Conciliation Act, 1996. The No. of Arbitrators shall be three, the Arbitrators shall be commercial persons the venue for arbitration shall be Chennai.? 8. A perusal of the same shows that the respondent has expressly agreed to be bound by the arbitration clause despite the fact that it is a printed condition annexed to the Bill of Lading. Secondly, it must be remembered that the respondent has itself relied upon the Bill of Lading as part of its cause of action to recover the sum of Rs.26,53,593/- in the suit filed by it. The respondent, therefore, cannot blow hot and cold and argue that for the purpose of its suit, it will rely upon the Bill of Lading (though unsigned) but for the purpose of arbitration, the requirement of the Arbitration Act is that the arbitration clause should be signed.9. In addition, we may indicate that the law in this behalf, in Jugal Kishore Rameshwardas vs. Mrs. Goolbai Hormusji, AIR 1955 SC 812 , is that an arbitration agreement needs to be in writing though it need not be signed. The fact that the arbitration agreement shall be in writing is continued in the 1996 Act in Section 7(3) thereof. Section 7(4) only further adds that an arbitration agreement would be found in the circumstances mentioned in the three sub-clauses that make up Section 7(4). This does not mean that in all cases an arbitration agreement needs to be signed. The only prerequisite is that it be in writing, as has been pointed out in Section 7(3).10. This being the case, the present is a clear case where, under Section 7(5) of the Act read with M.R. Engineers and Contractors Pvt. Ltd. (supra) (paras 22 & 24), the reference in the Bill of Lading is such as to make the arbitration clause part of the contract between the parties.11. The fact that the stage of the present suit is that a particular witness is being examined would not come in the way of the Section 8(3) application being allowed inasmuch as the Section 8(3) application was filed in the same year as that of the suit. We may also add that we have not gone into the Multimodal Transportation of Goods Act, 1993 for the reason that whether the present Bill of Lading is governed by the provisions of the Act (Section 26 in particular) or not would not make any difference to the position that an arbitration clause forms part of an agreement between the parties, and would, therefore, be governed by Section 7 of the Arbitration Act.
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1
### Explanation:
7. Having heard learned counsel for both parties, we are of the view that the Bill of Lading makes it clear that the term ?Merchant? (which is defined in the Standard Conditions Governing Multimodal Transport Documents - Clause (1) (e) as meaning shipper, consigner or consignee) expressly agrees to be bound by all the terms, conditions, clauses and exceptions on both sides of the Bill of Lading whether typed, printed or otherwise8. A perusal of the same shows that the respondent has expressly agreed to be bound by the arbitration clause despite the fact that it is a printed condition annexed to the Bill of Lading. Secondly, it must be remembered that the respondent has itself relied upon the Bill of Lading as part of its cause of action to recover the sum of Rs.26,53,593/- in the suit filed by it. The respondent, therefore, cannot blow hot and cold and argue that for the purpose of its suit, it will rely upon the Bill of Lading (though unsigned) but for the purpose of arbitration, the requirement of the Arbitration Act is that the arbitration clause should be signed9. In addition, we may indicate that the law in this behalf, in Jugal Kishore Rameshwardas vs. Mrs. Goolbai Hormusji, AIR 1955 SC 812 , is that an arbitration agreement needs to be in writing though it need not be signed. The fact that the arbitration agreement shall be in writing is continued in the 1996 Act in Section 7(3) thereof. Section 7(4) only further adds that an arbitration agreement would be found in the circumstances mentioned in the three sub-clauses that make up Section 7(4). This does not mean that in all cases an arbitration agreement needs to be signed. The only prerequisite is that it be in writing, as has been pointed out in Section 7(3)10. This being the case, the present is a clear case where, under Section 7(5) of the Act read with M.R. Engineers and Contractors Pvt. Ltd. (supra) (paras 22 & 24), the reference in the Bill of Lading is such as to make the arbitration clause part of the contract between the parties11. The fact that the stage of the present suit is that a particular witness is being examined would not come in the way of the Section 8(3) application being allowed inasmuch as the Section 8(3) application was filed in the same year as that of the suit. We may also add that we have not gone into the Multimodal Transportation of Goods Act, 1993 for the reason that whether the present Bill of Lading is governed by the provisions of the Act (Section 26 in particular) or not would not make any difference to the position that an arbitration clause forms part of an agreement between the parties, and would, therefore, be governed by Section 7 of the Arbitration Act.
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Saudi Arabian Airlines Vs. Salim Gandhi & Others | action as no witness form I.A.A.I. was examined and secondly by not reporting the matter to I.A.A.I. Under the circumstances the learned Judge held that the action taken against the present complainant must be a hasty and it is covered under item 1 (f) of schedule IV of the MRTU and PULP Act and therefore, the company is liable to withdraw form the same by giving work to the complainant. The learned Judge felt that if too I.A.A.I. takes any action against the complainant and others, the company make the fresh action against the present complainant. The learned Judge observed that the security staff of I.A.A.I. authority would have been the best evidence in the matter and therefore the finding of the enquiry officer is perverse.11.The order of the labour Judge was confirmed in revision by the learned Member of the Industrial Court by his order dated 22.12.1994. The revisional court merely referred to the entire paragraph 13 of the labour courts judgment and stated that in its opinion what has been held and discussed by the Labour Court is correct.12.We find it impossible to affirm to reasoning of the learned Judge of the labour court. It is relevant to notice that the specific charge against the complainant was that the complainant on January 25, 1992 (which date was later on changed to 24th January 1992) which the complainant was on duty at about 10.30 hours, Shri Subhash Ambekar the driver of the jeep No. MFC 506 of Ambassador Sky Chef was returning form Bay 41 to Saudia Cargo Staff in the said jeep. The policeman on duty at that gate stopped the jeep, as the gate no. 4 was not mentioned in the airport pass. The complainant requested the policeman (security person) to allow the jeep to proceed and that the complainant would have the pass rectified. Thereafter the complainant forcibly removed the pass alongwith the acrylic sheet from the jeep and told the driver to follow him to Saudia Cargo Office. In the office the complainant removed the acrylic sheet and placed the pass on the type-writer, typed gate no. 4 on it and returned the same to Shri Ambekar. The Complainant further told him to avoid going through gate no.4 on that dayi.e. on January 25, 1992 and asked him to use the gate no. 4 from the next day on-words. The chargesheet mentions that thus the complainant falsified the Airport pass of the said Jeep. The chargesheet further mentions that the aforesaid acts of the complainant amounts to serious acts of misconduct as per the model standing orders i.e. (i) froud or dishonesty in connection with employers business and (ii) commission of any act subversive of discipline or good behavior on the premises of the establishment. It is relevant to notice that the Saudi Arabian Airlines came to know about the misconduct of the complainant only upon the receipt of the letter from M/s. Ambassador Sky Chef reporting the incident. In the inquiry the said driver was examined. In the inquiry said Ambekar driver has stated as under :"After going out through gate no. 4 Mr.Salim Gandhi took me to the cargo office where he opened the Acrylic sheet by opening the scews with the screw driver, removed the Airport pass and typed gate no. 4 on the said pass and then placed the said Airport pass in between the acrylic sheet and tightened the screws".A zerox copy of the said pass was kept on record. It is an admitted position that the gate number which was put is erased by M/s. Ambassador Sky Chef and therefore there was no visible no. 4 on the said pass. The other witnesses who were present in the office of the Saudi Arabian Airlines situated at Sahar Airport in Cargo Section who have deposited to have seen the complainant with screw driver in his hand, Obviously they being colleagues, they would not go any further.13.On the basis of material on recorded we find it impossible of appreciate the reasoning or the conclusions of the learned Judge of the labour court. When a responsible employee of the Saudi Arabian Airlines, is proved upon evidence of Shri Ambekar, driver of the jeep, to have forcibly removed the security pass from the jeep belonging to M/s. Ambassador Sky Chef and when in fact he added the gate no. 4 and returned it to the driver and gave instructions to the driver to avoid gate no. 4 on that day but start using the same from the next date, dishonest intention and also serious misconduct of tampering with the security pass issued by the International Airport Authority of India, is clearly made out against the complainant. We fail to understand how the fact that the driver of the jeep is not proceeded against or the complaint is not lodged with the Airport Authority of India, has any relevante at all so for as the misconduct against the complainant is concerned. In our opinion the evidence before the Enquiry Officer was clinching and very clearly proved very serious misconduct and the entire reasoning of the learned Labour Judge is absolutely incorrect. The labour court has exceeded its jurisdiction in upsetting the finding recorded by the Enquiry Officer on the basis of very cogent and convincing evidence in that behalf. The revisional court has merely affirmed the finding recorded by the labour court.14.Shri Ganguli learned counsel appearing for the employee also submitted that the punishment of dismissal is rather harsh. We do not agree. Apart from the fact that the misconduct proved i.e. tampering with and falsely inserting additional gate number in the security pass issued by the International Airport Authority, is extremely serious matter, deserving punishment of dismissal, we are also of the view that the law is settled that once the misconduct is proved in the departmental inquiry and the punishment awarded is one that could be awarded for such misconduct, then courts of law would not interfere on the quantum of punishment. | 0[ds]12.We find it impossible to affirm to reasoning of the learned Judge of the labour court. It is relevant to notice that the specific charge against the complainant was that the complainant on January 25, 1992 (which date was later on changed to 24th January 1992) which the complainant was on duty at about 10.30 hours, Shri Subhash Ambekar the driver of the jeep No. MFC 506 of Ambassador Sky Chef was returning form Bay 41 to Saudia Cargo Staff in the said jeep. The policeman on duty at that gate stopped the jeep, as the gate no. 4 was not mentioned in the airportthe basis of material on recorded we find it impossible of appreciate the reasoning or the conclusions of the learned Judge of the labour court. When a responsible employee of the Saudi Arabian Airlines, is proved upon evidence of Shri Ambekar, driver of the jeep, to have forcibly removed the security pass from the jeep belonging to M/s. Ambassador Sky Chef and when in fact he added the gate no. 4 and returned it to the driver and gave instructions to the driver to avoid gate no. 4 on that day but start using the same from the next date, dishonest intention and also serious misconduct of tampering with the security pass issued by the International Airport Authority of India, is clearly made out against the complainant. We fail to understand how the fact that the driver of the jeep is not proceeded against or the complaint is not lodged with the Airport Authority of India, has any relevante at all so for as the misconduct against the complainant is concerned. In our opinion the evidence before the Enquiry Officer was clinching and very clearly proved very serious misconduct and the entire reasoning of the learned Labour Judge is absolutely incorrect. The labour court has exceeded its jurisdiction in upsetting the finding recorded by the Enquiry Officer on the basis of very cogent and convincing evidence in that behalf. The revisional court has merely affirmed the finding recorded by the labour court.14.Shri Ganguli learned counsel appearing for the employee also submitted that the punishment of dismissal is rather harsh. We do not agree. Apart from the fact that the misconduct proved i.e. tampering with and falsely inserting additional gate number in the security pass issued by the International Airport Authority, is extremely serious matter, deserving punishment of dismissal, we are also of the view that the law is settled that once the misconduct is proved in the departmental inquiry and the punishment awarded is one that could be awarded for such misconduct, then courts of law would not interfere on the quantum of punishment. | 0 | 2,948 | 483 | ### 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:
action as no witness form I.A.A.I. was examined and secondly by not reporting the matter to I.A.A.I. Under the circumstances the learned Judge held that the action taken against the present complainant must be a hasty and it is covered under item 1 (f) of schedule IV of the MRTU and PULP Act and therefore, the company is liable to withdraw form the same by giving work to the complainant. The learned Judge felt that if too I.A.A.I. takes any action against the complainant and others, the company make the fresh action against the present complainant. The learned Judge observed that the security staff of I.A.A.I. authority would have been the best evidence in the matter and therefore the finding of the enquiry officer is perverse.11.The order of the labour Judge was confirmed in revision by the learned Member of the Industrial Court by his order dated 22.12.1994. The revisional court merely referred to the entire paragraph 13 of the labour courts judgment and stated that in its opinion what has been held and discussed by the Labour Court is correct.12.We find it impossible to affirm to reasoning of the learned Judge of the labour court. It is relevant to notice that the specific charge against the complainant was that the complainant on January 25, 1992 (which date was later on changed to 24th January 1992) which the complainant was on duty at about 10.30 hours, Shri Subhash Ambekar the driver of the jeep No. MFC 506 of Ambassador Sky Chef was returning form Bay 41 to Saudia Cargo Staff in the said jeep. The policeman on duty at that gate stopped the jeep, as the gate no. 4 was not mentioned in the airport pass. The complainant requested the policeman (security person) to allow the jeep to proceed and that the complainant would have the pass rectified. Thereafter the complainant forcibly removed the pass alongwith the acrylic sheet from the jeep and told the driver to follow him to Saudia Cargo Office. In the office the complainant removed the acrylic sheet and placed the pass on the type-writer, typed gate no. 4 on it and returned the same to Shri Ambekar. The Complainant further told him to avoid going through gate no.4 on that dayi.e. on January 25, 1992 and asked him to use the gate no. 4 from the next day on-words. The chargesheet mentions that thus the complainant falsified the Airport pass of the said Jeep. The chargesheet further mentions that the aforesaid acts of the complainant amounts to serious acts of misconduct as per the model standing orders i.e. (i) froud or dishonesty in connection with employers business and (ii) commission of any act subversive of discipline or good behavior on the premises of the establishment. It is relevant to notice that the Saudi Arabian Airlines came to know about the misconduct of the complainant only upon the receipt of the letter from M/s. Ambassador Sky Chef reporting the incident. In the inquiry the said driver was examined. In the inquiry said Ambekar driver has stated as under :"After going out through gate no. 4 Mr.Salim Gandhi took me to the cargo office where he opened the Acrylic sheet by opening the scews with the screw driver, removed the Airport pass and typed gate no. 4 on the said pass and then placed the said Airport pass in between the acrylic sheet and tightened the screws".A zerox copy of the said pass was kept on record. It is an admitted position that the gate number which was put is erased by M/s. Ambassador Sky Chef and therefore there was no visible no. 4 on the said pass. The other witnesses who were present in the office of the Saudi Arabian Airlines situated at Sahar Airport in Cargo Section who have deposited to have seen the complainant with screw driver in his hand, Obviously they being colleagues, they would not go any further.13.On the basis of material on recorded we find it impossible of appreciate the reasoning or the conclusions of the learned Judge of the labour court. When a responsible employee of the Saudi Arabian Airlines, is proved upon evidence of Shri Ambekar, driver of the jeep, to have forcibly removed the security pass from the jeep belonging to M/s. Ambassador Sky Chef and when in fact he added the gate no. 4 and returned it to the driver and gave instructions to the driver to avoid gate no. 4 on that day but start using the same from the next date, dishonest intention and also serious misconduct of tampering with the security pass issued by the International Airport Authority of India, is clearly made out against the complainant. We fail to understand how the fact that the driver of the jeep is not proceeded against or the complaint is not lodged with the Airport Authority of India, has any relevante at all so for as the misconduct against the complainant is concerned. In our opinion the evidence before the Enquiry Officer was clinching and very clearly proved very serious misconduct and the entire reasoning of the learned Labour Judge is absolutely incorrect. The labour court has exceeded its jurisdiction in upsetting the finding recorded by the Enquiry Officer on the basis of very cogent and convincing evidence in that behalf. The revisional court has merely affirmed the finding recorded by the labour court.14.Shri Ganguli learned counsel appearing for the employee also submitted that the punishment of dismissal is rather harsh. We do not agree. Apart from the fact that the misconduct proved i.e. tampering with and falsely inserting additional gate number in the security pass issued by the International Airport Authority, is extremely serious matter, deserving punishment of dismissal, we are also of the view that the law is settled that once the misconduct is proved in the departmental inquiry and the punishment awarded is one that could be awarded for such misconduct, then courts of law would not interfere on the quantum of punishment.
### Response:
0
### Explanation:
12.We find it impossible to affirm to reasoning of the learned Judge of the labour court. It is relevant to notice that the specific charge against the complainant was that the complainant on January 25, 1992 (which date was later on changed to 24th January 1992) which the complainant was on duty at about 10.30 hours, Shri Subhash Ambekar the driver of the jeep No. MFC 506 of Ambassador Sky Chef was returning form Bay 41 to Saudia Cargo Staff in the said jeep. The policeman on duty at that gate stopped the jeep, as the gate no. 4 was not mentioned in the airportthe basis of material on recorded we find it impossible of appreciate the reasoning or the conclusions of the learned Judge of the labour court. When a responsible employee of the Saudi Arabian Airlines, is proved upon evidence of Shri Ambekar, driver of the jeep, to have forcibly removed the security pass from the jeep belonging to M/s. Ambassador Sky Chef and when in fact he added the gate no. 4 and returned it to the driver and gave instructions to the driver to avoid gate no. 4 on that day but start using the same from the next date, dishonest intention and also serious misconduct of tampering with the security pass issued by the International Airport Authority of India, is clearly made out against the complainant. We fail to understand how the fact that the driver of the jeep is not proceeded against or the complaint is not lodged with the Airport Authority of India, has any relevante at all so for as the misconduct against the complainant is concerned. In our opinion the evidence before the Enquiry Officer was clinching and very clearly proved very serious misconduct and the entire reasoning of the learned Labour Judge is absolutely incorrect. The labour court has exceeded its jurisdiction in upsetting the finding recorded by the Enquiry Officer on the basis of very cogent and convincing evidence in that behalf. The revisional court has merely affirmed the finding recorded by the labour court.14.Shri Ganguli learned counsel appearing for the employee also submitted that the punishment of dismissal is rather harsh. We do not agree. Apart from the fact that the misconduct proved i.e. tampering with and falsely inserting additional gate number in the security pass issued by the International Airport Authority, is extremely serious matter, deserving punishment of dismissal, we are also of the view that the law is settled that once the misconduct is proved in the departmental inquiry and the punishment awarded is one that could be awarded for such misconduct, then courts of law would not interfere on the quantum of punishment.
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M/S. Lakshmi Precision Screws Ltd Vs. Ram Bahagat | statutorily imposed upon the employers by requiring every industrial establishment to frame "Standing Orders" in respect of matters enumerated in the Schedule appended to the Act. The Standing Orders so made are to be submitted to the Certifying Officer who is required to make an enquiry whether they have been framed in accordance with the Act and on being satisfied that they are in consonance with the provisions of the Act to certify them. Once the Standing Orders are so certified, they become binding upon both the parties, namely, the employer and the employees. The Certified Standing Orders are also required to be published in the manner indicated by the Act which also sets out the Model Standing Orders. Originally, the jurisdiction of the Certifying Officer was limited to examining the Draft Standing Orders and comparing them with the Model Standing Orders. But in 1956, the Act was radically amended and Section 4 gave jurisdiction to the Certifying Officer, as also the appellate authority, to adjudicate and decide the questions, if raised, relating to the fairness or reasonableness of any provision of the Standing Orders". 13. This Court further in fine in paragraph 25 of the report stated as below: "25. In view of the above, we are of the positive opinion that any clause in the Certified Standing Orders providing for automatic termination of service of a permanent employees, not directly related to "production" in a factory or industrial establishment, would be bad if it does not purport to provide an opportunity of hearing to the employee whose services are treated to have come to an end automatically". 14. While it is true that a later Three Judge Bench decision of this Court in Punjab and Sind Bank & Ors. vs. Sakattar Singh (2001 (1) SCC 214 ) sounded a different note but the same should not detain us any further, since the factual context differs in material particulars and even the bi-partite settlement involved therein was of much accommodative in nature. 15. It is thus in this context one ought to read the doctrine of natural justice being an in-built requirement on the Standing Orders. Significantly, the facts depict that the respondent-workman remained absent from duty from 13th October 1990 and it is within a period of four days that a letter was sent to the workman informing him that since he was absenting himself from duty without authorised leave he was advised to report back within 48 hours and also to tender his explanation for his absence, otherwise his disinterestedness would thus be presumed. Is this in strict compliance with the Certified Standing Order - the answer possibility cannot be in the affirmative. Though however, if the letter dated 25th October, 1990 as noticed above is to be taken note of, then and in that event the same thus come within the ambit of the Certified Standing Order of 10 days continued absence - the situation however, is slightly different in the present context since the letter of 25th October is an intimation of his name being struck off the rolls of the company. It is an act; subsequent to the order of termination and if the letter of 17th October is an indication for such an order of termination the same does not come within the ambit of the Certified Standing Order. The High Court on this score stated as below: "Even if it presumed that the petitioner-management may have afforded an opportunity to the respondent-workman to tender his explanation and as such complied with the principles of natural justice in terms of the decision rendered by the Apex Court in Hindustan Paper Corporation’s case (supra), yet the question remains, whether the determination of the petitioner management was arbitrary and without application of mind?" .............................................. "In our considered view, the rejection of the claim of the respondent-workman is absolutely arbitrary and without consideration of the material placed on record by the respondent-workman (as discussed in the foregoing paragraph). The Labour Court examined in detail the factual position and returned a finding that the respondent - workman had not absented himself from service deliberately or intentionally and also that he had not abandoned his service. It was further concluded that his absence was based on account of his illness which could be affirmed from the medical certificates produced by him. In the aforesaid view of the matter, in our considered view, the action of the petitioner-management in rejecting the representation of the respondent-workman dated 30.1.1991 was clearly arbitrary and as such it is not sustainable in law". 16. Having regard to the well settled principle of law as in Yadav (supra), the decision to terminate by reason of a presumption as noticed above, we cannot but lend concurrence to the conclusion of the High Court that the action is purely and surely arbitrary in nature. Arbitrariness in an anti-thesis to rule of law: equity: fair play and justice - contract of employment there may be but it cannot be devoid of the basic principles of the concept of justice. Justice oriented approach as is the present trend in Indian jurisprudence shall have to read as an in-built requirement of the basic of concept of justice, to wit, the doctrine of natural justice, fairness, equality and rule of law: The letter dated 17th October cannot be any stretch be treated to be an opportunity since it is only on the fourth day that such a letter was sent - the action of the appellant herein stands out to be devoid of any justification, neither it depicts acceptability of the doctrine of natural justice or the concept of fairness - arbitrariness is written large and we confirm the finding of the High Court as also that of the learned Trial Judge and the Tribunal as regards issue as noticed above.17. In that view of the matter, there cannot thus be any perversity or any miscarriage of justice warranting intervention of this Court under Article 136 of the Constitution. 18. | 0[ds]15. It is thus in this context one ought to read the doctrine of natural justice being an in-built requirement on the Standing Orders. Significantly, the facts depict that the respondent-workman remained absent from duty from 13th October 1990 and it is within a period of four days that a letter was sent to the workman informing him that since he was absenting himself from duty without authorised leave he was advised to report back within 48 hours and also to tender his explanation for his absence, otherwise his disinterestedness would thus be presumed. Is this in strict compliance with the Certified Standing Order - the answer possibility cannot be in the affirmative. Though however, if the letter dated 25th October, 1990 as noticed above is to be taken note of, then and in that event the same thus come within the ambit of the Certified Standing Order of 10 days continued absence - the situation however, is slightly different in the present context since the letter of 25th October is an intimation of his name being struck off the rolls of the company. It is an act; subsequent to the order of termination and if the letter of 17th October is an indication for such an order of termination the same does not come within the ambit of the Certified StandingHaving regard to the well settled principle of law as in Yadav (supra), the decision to terminate by reason of a presumption as noticed above, we cannot but lend concurrence to the conclusion of the High Court that the action is purely and surely arbitrary in nature. Arbitrariness in an anti-thesis to rule of law: equity: fair play and justice - contract of employment there may be but it cannot be devoid of the basic principles of the concept of justice. Justice oriented approach as is the present trend in Indian jurisprudence shall have to read as an in-built requirement of the basic of concept of justice, to wit, the doctrine of natural justice, fairness, equality and rule of law: The letter dated 17th October cannot be any stretch be treated to be an opportunity since it is only on the fourth day that such a letter was sent - the action of the appellant herein stands out to be devoid of any justification, neither it depicts acceptability of the doctrine of natural justice or the concept of fairness - arbitrariness is written large and we confirm the finding of the High Court as also that of the learned Trial Judge and the Tribunal as regards issue as noticed above.17. In that view of the matter, there cannot thus be any perversity or any miscarriage of justice warranting intervention of this Court under Article 136 of the Constitution. | 0 | 4,052 | 497 | ### 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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statutorily imposed upon the employers by requiring every industrial establishment to frame "Standing Orders" in respect of matters enumerated in the Schedule appended to the Act. The Standing Orders so made are to be submitted to the Certifying Officer who is required to make an enquiry whether they have been framed in accordance with the Act and on being satisfied that they are in consonance with the provisions of the Act to certify them. Once the Standing Orders are so certified, they become binding upon both the parties, namely, the employer and the employees. The Certified Standing Orders are also required to be published in the manner indicated by the Act which also sets out the Model Standing Orders. Originally, the jurisdiction of the Certifying Officer was limited to examining the Draft Standing Orders and comparing them with the Model Standing Orders. But in 1956, the Act was radically amended and Section 4 gave jurisdiction to the Certifying Officer, as also the appellate authority, to adjudicate and decide the questions, if raised, relating to the fairness or reasonableness of any provision of the Standing Orders". 13. This Court further in fine in paragraph 25 of the report stated as below: "25. In view of the above, we are of the positive opinion that any clause in the Certified Standing Orders providing for automatic termination of service of a permanent employees, not directly related to "production" in a factory or industrial establishment, would be bad if it does not purport to provide an opportunity of hearing to the employee whose services are treated to have come to an end automatically". 14. While it is true that a later Three Judge Bench decision of this Court in Punjab and Sind Bank & Ors. vs. Sakattar Singh (2001 (1) SCC 214 ) sounded a different note but the same should not detain us any further, since the factual context differs in material particulars and even the bi-partite settlement involved therein was of much accommodative in nature. 15. It is thus in this context one ought to read the doctrine of natural justice being an in-built requirement on the Standing Orders. Significantly, the facts depict that the respondent-workman remained absent from duty from 13th October 1990 and it is within a period of four days that a letter was sent to the workman informing him that since he was absenting himself from duty without authorised leave he was advised to report back within 48 hours and also to tender his explanation for his absence, otherwise his disinterestedness would thus be presumed. Is this in strict compliance with the Certified Standing Order - the answer possibility cannot be in the affirmative. Though however, if the letter dated 25th October, 1990 as noticed above is to be taken note of, then and in that event the same thus come within the ambit of the Certified Standing Order of 10 days continued absence - the situation however, is slightly different in the present context since the letter of 25th October is an intimation of his name being struck off the rolls of the company. It is an act; subsequent to the order of termination and if the letter of 17th October is an indication for such an order of termination the same does not come within the ambit of the Certified Standing Order. The High Court on this score stated as below: "Even if it presumed that the petitioner-management may have afforded an opportunity to the respondent-workman to tender his explanation and as such complied with the principles of natural justice in terms of the decision rendered by the Apex Court in Hindustan Paper Corporation’s case (supra), yet the question remains, whether the determination of the petitioner management was arbitrary and without application of mind?" .............................................. "In our considered view, the rejection of the claim of the respondent-workman is absolutely arbitrary and without consideration of the material placed on record by the respondent-workman (as discussed in the foregoing paragraph). The Labour Court examined in detail the factual position and returned a finding that the respondent - workman had not absented himself from service deliberately or intentionally and also that he had not abandoned his service. It was further concluded that his absence was based on account of his illness which could be affirmed from the medical certificates produced by him. In the aforesaid view of the matter, in our considered view, the action of the petitioner-management in rejecting the representation of the respondent-workman dated 30.1.1991 was clearly arbitrary and as such it is not sustainable in law". 16. Having regard to the well settled principle of law as in Yadav (supra), the decision to terminate by reason of a presumption as noticed above, we cannot but lend concurrence to the conclusion of the High Court that the action is purely and surely arbitrary in nature. Arbitrariness in an anti-thesis to rule of law: equity: fair play and justice - contract of employment there may be but it cannot be devoid of the basic principles of the concept of justice. Justice oriented approach as is the present trend in Indian jurisprudence shall have to read as an in-built requirement of the basic of concept of justice, to wit, the doctrine of natural justice, fairness, equality and rule of law: The letter dated 17th October cannot be any stretch be treated to be an opportunity since it is only on the fourth day that such a letter was sent - the action of the appellant herein stands out to be devoid of any justification, neither it depicts acceptability of the doctrine of natural justice or the concept of fairness - arbitrariness is written large and we confirm the finding of the High Court as also that of the learned Trial Judge and the Tribunal as regards issue as noticed above.17. In that view of the matter, there cannot thus be any perversity or any miscarriage of justice warranting intervention of this Court under Article 136 of the Constitution. 18.
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15. It is thus in this context one ought to read the doctrine of natural justice being an in-built requirement on the Standing Orders. Significantly, the facts depict that the respondent-workman remained absent from duty from 13th October 1990 and it is within a period of four days that a letter was sent to the workman informing him that since he was absenting himself from duty without authorised leave he was advised to report back within 48 hours and also to tender his explanation for his absence, otherwise his disinterestedness would thus be presumed. Is this in strict compliance with the Certified Standing Order - the answer possibility cannot be in the affirmative. Though however, if the letter dated 25th October, 1990 as noticed above is to be taken note of, then and in that event the same thus come within the ambit of the Certified Standing Order of 10 days continued absence - the situation however, is slightly different in the present context since the letter of 25th October is an intimation of his name being struck off the rolls of the company. It is an act; subsequent to the order of termination and if the letter of 17th October is an indication for such an order of termination the same does not come within the ambit of the Certified StandingHaving regard to the well settled principle of law as in Yadav (supra), the decision to terminate by reason of a presumption as noticed above, we cannot but lend concurrence to the conclusion of the High Court that the action is purely and surely arbitrary in nature. Arbitrariness in an anti-thesis to rule of law: equity: fair play and justice - contract of employment there may be but it cannot be devoid of the basic principles of the concept of justice. Justice oriented approach as is the present trend in Indian jurisprudence shall have to read as an in-built requirement of the basic of concept of justice, to wit, the doctrine of natural justice, fairness, equality and rule of law: The letter dated 17th October cannot be any stretch be treated to be an opportunity since it is only on the fourth day that such a letter was sent - the action of the appellant herein stands out to be devoid of any justification, neither it depicts acceptability of the doctrine of natural justice or the concept of fairness - arbitrariness is written large and we confirm the finding of the High Court as also that of the learned Trial Judge and the Tribunal as regards issue as noticed above.17. In that view of the matter, there cannot thus be any perversity or any miscarriage of justice warranting intervention of this Court under Article 136 of the Constitution.
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M/s. Mahesh Transport Company Vs. The Transport & Dock Workers Union | employers." 10. It is contended by Mr. Hardy that on the very finding of the Tribunal that the workers are the employees of two masters the reference was incompetent, because, in his submission, the concept of common employment of more than one employer is foreign to the Industrial Law, and in particular, the Industrial Disputes Act, 1947. As a corollary to that proposition he further contended that the reference it self under Section 10(1)(d) was incompetent. 11. We do not think that there is any substance in either of these submissions. It must be noted that the principal case put forward by the two firms before the Tribunal was that these Dock workers were not their employees at all. Their case was that they were employees of a labour contractor with whom the firms had their contract and, therefore, the workers were not the direct employees of the firms. This contention was rejected by the Tribunal as false because the evidence clearly disclosed that the workers had come under the employ of both the firms and both the firms had paid these workers bonus for the year 1966 and 1967. A common employee of the firms namely Ram Niwas Pannalal used to make the payment to the workers on behalf of both the firms in respect of the work done for both the firms. In these circumstances, it is very difficult to see how the reference between the workers, on the one hand, and the two firms, on the other, is incompetent, The workers were not interested as to whether the one firm or the other bore the total responsibility for paying for the work which they were doing. In fact, they had thought that they were the employees of only M/s. Krishna Commercial Co. But the latter shared its liability to pay the workers with a new firm of the appellants after 1-8-1965; and if the two firms agree that they have so shared the liability both would be regarded as the employers of the workmen. The workers continued to do the same work and receive the same payment without any change in their employment. The change was merely in the Constitution of the employers, In fact the workers had not even agreed by a separate contract to work for the appellants. Therefore, there is no substance in the contention that on the finding of the Tribunal it should be held that this was a case of common employment. If what the two firms had done created a situation of common employment that was not of the seeking of the workers. The doctrine of common employment may, perhaps apply where the workers contract separately to serve two employers, without the latters mutual agreement. That is not the case here. As to whether the doctrine of common employment is unknown to Industrial law it is not necessary for us to decide in this case. 12. Mr. Hardy invited our attention to the judgment of a single Judge of the Andhra Pradesh High Court in G. Rangamannar Chetty v. The Industrial Tribunal where the learned Judge seems to have been of the view that a part-time employee is not covered by the Industrial Disputes Act. For that proposition he referred to the fact that several decisions of Industrial Tribunals had taken that view. The decisions of the Industrial Tribunals, however, have not been specifically referred to or discussed in the judgment, nor has the learned Judge discussed the matter independently. We do not wish to say in the absence of a detailed argument on the point, as to whether the workers appointed part-time by an employer may never get the benefits of the Industrial Disputes Act. So far as we are concerned in the present case, there is no question of part-time employment. All these workers are working in two shifts. There are definite hours when the two shifts are working. Ships may come with only Cement or Clinker or both. The workers in the relevant shift will have to unload the same on the wharf and then load the same in the trucks. If it is Cement it will be loaded in the trucks brought by M/s. Krishna Commercial Co. If it is Clinker it will be loaded in the trucks brought by the appellants. The tally clerk who is in the common employment of the firms will make the necessary note as to how much cement or Clinker was loaded and unloaded. The workers will then be paid accordingly, M/s. Krishna Commercial Co. taking the responsibility to pay for the Cement and the appellants for the Clinker. The two firms, as already stated, have merely split between themselves the responsibility for paying for loading and unloading Cement and Clinker in which business the respondent workers are employed. In these circumstances, we have no hesitation in saying that the reference was quite competent and so was the award. 13. Mr. Hardy then invited our attention to the actual order of interim relief passed by the Tribunal and sought to submit that it might be very difficult for the two firms to apportion among themselves the liability imposed by the award. We do not think there is any difficulty whatsoever. The two firms have employed common clerks to supervise the actual work done by the gang, how much for one firm, how much for the other. The interim relief is not only given on a monthly basis but also, alternatively, on shift basis. As the workers are working in shifts and the work done in each shift for each of the employers is duly noted, there is no difficulty at all as to how this additional relief given by the award should be shared between the two firms. Again, if the employers do not want to share the liability on shift basis they know how much interim relief they have to pay to each worker every month, having regard to the total work done by each worker individually for them. 14. | 0[ds]We do not think that there is any substance in either of these submissions. It must be noted that the principal case put forward by the two firms before the Tribunal was that these Dock workers were not their employees at all. Their case was that they were employees of a labour contractor with whom the firms had their contract and, therefore, the workers were not the direct employees of the firms. This contention was rejected by the Tribunal as false because the evidence clearly disclosed that the workers had come under theof both the firms and both the firms had paid these workers bonus for the year 1966 and 1967. A common employee of the firms namely Ram Niwas Pannalaused to make the payment to the workers on behalf of both the firms in respect of the work done for both the firms. In these circumstances, it is very difficult to see how the reference between the workers, on the one hand, and the two firms, on the other, isThe workers were not interested as to whether the one firm or the other bore the total responsibility for paying for the work which they were doing. In fact, they had thought that they were the employees of only M/s. Krishna CommercialBut the latter shared its liability to pay the workers with a new firm of the appellants afterand if the two firms agree that they have so shared the liability both would be regarded as the employers of the workmen. The workers continued to do the same work and receive the same payment without any change in their employment. The change was merely in the. In factthe workers had not even agreed by a separate contract to work for the appellants. Therefore, there is no substance in the contention that on the finding of the Tribunal it should be held that this was a case of common employment. If what the two firms had done created a situation of common employment that was not of the seeking of the workers. The doctrine of common employment may,apply where the workers contract separately to serve two employers, without themutual agreement. That is not the case here. As to whether the doctrine of common employment is unknown to Industrial law it is not necessary for us to decide in thisthat proposition he referred to the fact that several decisions of Industrial Tribunals had taken that view. The decisions of the Industrial Tribunals, however, have not been specifically referred to or discussed in the judgment, nor has the learned Judge discussed theindependently. We do not wish toin the absence of a detailed argument on the point, as to whether the workers appointedby an employer may never get the benefits of the Industrial Disputes Act. So far as we are concerned in the present case, there is no question ofemployment. All these workers are working in two shifts. There are definite hours when the two shifts are working. Ships may come with only Cement or Clinker or both. The workers in the relevant shift will have to unload the same on the wharf and then load the same in the trucks. If it is Cement it will be loaded in the trucks brought byKrishna Commercial Co.If it is Clinker it will be loaded in the trucks brought by the appellants. The tally clerk who is in the common employment of thefirms will make the necessary note as to how muchCement or Clinkerwas loaded and unloaded. The workers will then be paid accordingly,a Commercial Co.taking the responsibility to pay for the Cement and the appellants for the Clinker. The two firms, as already stated, have merely split between themselves the responsibility for paying for loading and unloading Cement andin which business the respondent workers are employed. In these circumstances, we have no hesitation in saying that the reference was quite competent and so was thetwo firms have employed common clerks to supervise the actual work done by the gang, how much for one firm, how much for the other. The interim relief is not only given on a monthly basis but also, alternativelyon shift basis. As the workers are working in shifts and the work done in each shift for each of the employers is duly noted, there is no difficulty at all as to how this additional relief given by the award should be shared between the two firms. Again, if the employers do not want to share the liability on shift basis they know how much interim relief they have to pay to each worker every month, having regard to the total work done by each worker individually for them. | 0 | 2,363 | 840 | ### 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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employers." 10. It is contended by Mr. Hardy that on the very finding of the Tribunal that the workers are the employees of two masters the reference was incompetent, because, in his submission, the concept of common employment of more than one employer is foreign to the Industrial Law, and in particular, the Industrial Disputes Act, 1947. As a corollary to that proposition he further contended that the reference it self under Section 10(1)(d) was incompetent. 11. We do not think that there is any substance in either of these submissions. It must be noted that the principal case put forward by the two firms before the Tribunal was that these Dock workers were not their employees at all. Their case was that they were employees of a labour contractor with whom the firms had their contract and, therefore, the workers were not the direct employees of the firms. This contention was rejected by the Tribunal as false because the evidence clearly disclosed that the workers had come under the employ of both the firms and both the firms had paid these workers bonus for the year 1966 and 1967. A common employee of the firms namely Ram Niwas Pannalal used to make the payment to the workers on behalf of both the firms in respect of the work done for both the firms. In these circumstances, it is very difficult to see how the reference between the workers, on the one hand, and the two firms, on the other, is incompetent, The workers were not interested as to whether the one firm or the other bore the total responsibility for paying for the work which they were doing. In fact, they had thought that they were the employees of only M/s. Krishna Commercial Co. But the latter shared its liability to pay the workers with a new firm of the appellants after 1-8-1965; and if the two firms agree that they have so shared the liability both would be regarded as the employers of the workmen. The workers continued to do the same work and receive the same payment without any change in their employment. The change was merely in the Constitution of the employers, In fact the workers had not even agreed by a separate contract to work for the appellants. Therefore, there is no substance in the contention that on the finding of the Tribunal it should be held that this was a case of common employment. If what the two firms had done created a situation of common employment that was not of the seeking of the workers. The doctrine of common employment may, perhaps apply where the workers contract separately to serve two employers, without the latters mutual agreement. That is not the case here. As to whether the doctrine of common employment is unknown to Industrial law it is not necessary for us to decide in this case. 12. Mr. Hardy invited our attention to the judgment of a single Judge of the Andhra Pradesh High Court in G. Rangamannar Chetty v. The Industrial Tribunal where the learned Judge seems to have been of the view that a part-time employee is not covered by the Industrial Disputes Act. For that proposition he referred to the fact that several decisions of Industrial Tribunals had taken that view. The decisions of the Industrial Tribunals, however, have not been specifically referred to or discussed in the judgment, nor has the learned Judge discussed the matter independently. We do not wish to say in the absence of a detailed argument on the point, as to whether the workers appointed part-time by an employer may never get the benefits of the Industrial Disputes Act. So far as we are concerned in the present case, there is no question of part-time employment. All these workers are working in two shifts. There are definite hours when the two shifts are working. Ships may come with only Cement or Clinker or both. The workers in the relevant shift will have to unload the same on the wharf and then load the same in the trucks. If it is Cement it will be loaded in the trucks brought by M/s. Krishna Commercial Co. If it is Clinker it will be loaded in the trucks brought by the appellants. The tally clerk who is in the common employment of the firms will make the necessary note as to how much cement or Clinker was loaded and unloaded. The workers will then be paid accordingly, M/s. Krishna Commercial Co. taking the responsibility to pay for the Cement and the appellants for the Clinker. The two firms, as already stated, have merely split between themselves the responsibility for paying for loading and unloading Cement and Clinker in which business the respondent workers are employed. In these circumstances, we have no hesitation in saying that the reference was quite competent and so was the award. 13. Mr. Hardy then invited our attention to the actual order of interim relief passed by the Tribunal and sought to submit that it might be very difficult for the two firms to apportion among themselves the liability imposed by the award. We do not think there is any difficulty whatsoever. The two firms have employed common clerks to supervise the actual work done by the gang, how much for one firm, how much for the other. The interim relief is not only given on a monthly basis but also, alternatively, on shift basis. As the workers are working in shifts and the work done in each shift for each of the employers is duly noted, there is no difficulty at all as to how this additional relief given by the award should be shared between the two firms. Again, if the employers do not want to share the liability on shift basis they know how much interim relief they have to pay to each worker every month, having regard to the total work done by each worker individually for them. 14.
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We do not think that there is any substance in either of these submissions. It must be noted that the principal case put forward by the two firms before the Tribunal was that these Dock workers were not their employees at all. Their case was that they were employees of a labour contractor with whom the firms had their contract and, therefore, the workers were not the direct employees of the firms. This contention was rejected by the Tribunal as false because the evidence clearly disclosed that the workers had come under theof both the firms and both the firms had paid these workers bonus for the year 1966 and 1967. A common employee of the firms namely Ram Niwas Pannalaused to make the payment to the workers on behalf of both the firms in respect of the work done for both the firms. In these circumstances, it is very difficult to see how the reference between the workers, on the one hand, and the two firms, on the other, isThe workers were not interested as to whether the one firm or the other bore the total responsibility for paying for the work which they were doing. In fact, they had thought that they were the employees of only M/s. Krishna CommercialBut the latter shared its liability to pay the workers with a new firm of the appellants afterand if the two firms agree that they have so shared the liability both would be regarded as the employers of the workmen. The workers continued to do the same work and receive the same payment without any change in their employment. The change was merely in the. In factthe workers had not even agreed by a separate contract to work for the appellants. Therefore, there is no substance in the contention that on the finding of the Tribunal it should be held that this was a case of common employment. If what the two firms had done created a situation of common employment that was not of the seeking of the workers. The doctrine of common employment may,apply where the workers contract separately to serve two employers, without themutual agreement. That is not the case here. As to whether the doctrine of common employment is unknown to Industrial law it is not necessary for us to decide in thisthat proposition he referred to the fact that several decisions of Industrial Tribunals had taken that view. The decisions of the Industrial Tribunals, however, have not been specifically referred to or discussed in the judgment, nor has the learned Judge discussed theindependently. We do not wish toin the absence of a detailed argument on the point, as to whether the workers appointedby an employer may never get the benefits of the Industrial Disputes Act. So far as we are concerned in the present case, there is no question ofemployment. All these workers are working in two shifts. There are definite hours when the two shifts are working. Ships may come with only Cement or Clinker or both. The workers in the relevant shift will have to unload the same on the wharf and then load the same in the trucks. If it is Cement it will be loaded in the trucks brought byKrishna Commercial Co.If it is Clinker it will be loaded in the trucks brought by the appellants. The tally clerk who is in the common employment of thefirms will make the necessary note as to how muchCement or Clinkerwas loaded and unloaded. The workers will then be paid accordingly,a Commercial Co.taking the responsibility to pay for the Cement and the appellants for the Clinker. The two firms, as already stated, have merely split between themselves the responsibility for paying for loading and unloading Cement andin which business the respondent workers are employed. In these circumstances, we have no hesitation in saying that the reference was quite competent and so was thetwo firms have employed common clerks to supervise the actual work done by the gang, how much for one firm, how much for the other. The interim relief is not only given on a monthly basis but also, alternativelyon shift basis. As the workers are working in shifts and the work done in each shift for each of the employers is duly noted, there is no difficulty at all as to how this additional relief given by the award should be shared between the two firms. Again, if the employers do not want to share the liability on shift basis they know how much interim relief they have to pay to each worker every month, having regard to the total work done by each worker individually for them.
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Maharashtra State Electricity Distribution Company Ltd Vs. M/s. Datar Switchgear Limited & Others | dealt with this aspect and held that the contract objects were custom built in the following manner: “55. Respondents submitted that the Claimants did not make any efforts to mitigate the loss suffered. The submission is without any merit for more than one reason. In the first instance, the contract objects manufactured in pursuance of the orders of the Respondents were custom built i.e. to the specifications laid down by the Respondents and these contract objects cannot be disposed in open market. Datar deposed with reference to Exh. C 16 that efforts were made to sell the contract objects stranded in the factory to other Electricity Boards but those efforts did not succeed. It was contended by the Respondents that the claimants should have dismantled the stranded contract objects and sold the components thereof. The submission is only required to be slated to be rejected. Once an electronic instrument is dismantled, then the value almost becomes nil. In any event, the Claimants have established that efforts were made to mitigate the loss.” 61) The learned Single Judge as well as the Division Bench of the High Court has given its imprimatur to the aforesaid findings. It, therefore, becomes apparent that the objects in question were manufactured by respondent No.2 to suit the specific needs of the appellant ad they could not be used otherwise. Therefore, there was no possibility on the part of respondent No.2 to make an endeavour to dispose of the same in order to mitigate the loses. RE : WAIVER 62) The argument of the appellant on waiver is also successfully met by respondent No.2. Submission of Mr. Dada, on this argument, was that both parties went to trial before the Arbitral Tribunal on the basis that the time to start work under the contract had commenced with reference to letter dated 14.07.1997 of the appellant signed by the Chief Engineer who was the competent authority under the contract. The same Chief Engineer insisted, by letter dated 20.04.1998, that liquidated damages would be imposed if the work was not completed in time. We may point out that the Arbitral Tribunal considered and rejected this argument of waiver, as set up by the appellant, in the following words: “18... It was then contended that the Claimants had waived the right to receive the lists of locations from the Respondents. By reference to clause 5.1 of the work order, it was submitted that the Claimants were to commence installation within four months from (a) the date of the work order; (b) opening of Letter of Credit and (c) on receipt of complete list of locations, whichever is later. It was contended that the Claimants were entitled to wait till all the lists were supplied to installation, but as the Claimants commenced installation even though the entire lists were not supplied, it should be concluded that the Claimants have waived their right. The submission is desperate and wholly unfair. The Respondents were in a hurry to complete the installation within a period of 20 months with an object to save the large amount lost due to loss of energy. Merely because the Claimants acted in a reasonable manner and did not insist upon the terms of the contract, it is absurd to suggest that the Claimants waived their right to complain about non-supply of lists of locations. It was then submitted that the Claimants had installed contract objects on the oral instructions and on the basis of chits issued by some of the Officers of the Respondents and that was contrary to the terms of the work order which provided that installation should be only on locations, the lists of which are given in accordance with the format at Annexure ‘E’ to the work order. It was also submitted that on 155 locations at Jalgaon, Dhule and Aurangabad, the lists were received by the Claimants from Authorities who were not competent to issue such lists. The submission has no merit because while undertaking such a huge project, the parties were not keen on strict compliance of each and every term and condition of the contract. Such an instance would have defeated the contract at once because the contract had to be carried out over a large area and with the interaction of large number of people. These factors cannot establish that the claimants have waived their right to complaint about the failure to supply lists of location...” 63) Mr. Vikas Singh, learned senior counsel appearing for the appellant, referred to and relied upon various judgments in support of his contention. These judgments deal with the scope of interference in the awards passed by the arbitrators. It is not even necessary to deal with these judgments inasmuch as, on the facts of this case, as discussed in detail hereinabove, none of the judgments gets attracted. Likewise, effort on the part of the appellant to rely upon the judgment of the learned single Judge of the High Court in the first round is futile as that was set aside by the Division Bench and matter was remitted back to the single Judge of the High Court to decide it afresh. RE: ORDER ON CHAMBER SUMMONS 64) Three chamber summons were taken out by the appellant during the pendency of this appeal before the Division Bench. By these chamber summons, the appellant intended to amend the petition which was filed by it under Section 34 of the Act as well as the appeal. The High Court after detailed discussion in the impugned judgment rejected these summons. We find that the amendment sought was highly belated. Arbitration petition filed under Section 34 of the Act was sought to be amended after a delay of eight years. Further, the amendment in the appeal, taking those very grounds on which amendment in the arbitration petition was sought, was sought after a delay of 3½ years. The High Court, thus, rightly rejected these summons and it is not necessary to have any elaborate discussion on these aspects. | 0[ds]41) We find adequate force in the aforesaid submission of Mr. Dada. Let us first take note of these findings:FINDINGS OF FACTS :42) Reasoning contained in the Award reveals following salient findings returned by the ArbitralThe appellant prevented respondent No.2 from performing the contract.(ii) Respondent No.2 was ready and willing to perform the contract all throughout.(iii) The appellant chose not to examine any of its Superintending Engineers who werefor giving DTC locations to respondent No.2 and, as found by the Arbitral Tribunal, they were the kingpins of each circle for performance of the contract.(iv) There is considerable merit in the submission of respondent No.2 that the Minutes of the Meeting dated 24.06.1998 is a fabricated document.(v) It is not possible to accede to the submission of the appellant that respondent No.2 had adequate lists of locations available and still failed to install the contract objects.(vi) It is obvious that there is something seriously wrong in the working of the appellant. Once a letter is listed in the affidavit of documents, it is surprising how the letter was not traceable. Be that as it may, the fact remains that prior to the date of termination of contract, at least in three Circles, the appellant had directed stoppage of installation work.(vii) It is unfortunate that the Head Office of the appellant lacked control over the field offices and which ultimately led to the failure of the project. It is futile to even suggest that the breach was not a fundamental one.(viii) Respondent No.2 was ready and willing to perform their part of the contract while the appellant committed a breach by failure to supply DTC locations as per the terms of the contract. (ix) Respondent No.2 invested Rs.163 crores in the project.(x) The appellant failed to prove that deductions effected in the Performance Certificates were proper.(xi) The appellant indulged in tampering the commissioning reports produced on record. The attempt does not behove to a statutory body and requires to be deprecated. The attempt made by the appellant by producing documents which are tampered with and which are not genuine indicates that the appellant was willing to go to any extent to make allegations against respondent No.2.(xii) The appellant did not make available large number of documents disclosed in the affidavit of documents on the ground that the same are not available.(xiii) Counter claim of the appellant is misconceived and is nothing short of counter blast to the claim made against respondent No.2.(xiv) It was the appellant and appellant alone who had committed fundamental breaches of the terms of the work order.(xv) The appellant has raised untenable and unsustainable defences which led to considerable delay in concluding the proceedings. These are findings of facts based upon the material evidence that emerged on the record of theCategorical findings are arrived at by the Arbitral Tribunal to the effect that insofar as respondent No.2 is concerned, it was always ready and willing to perform its contractual obligations, but was prevented by the appellant from such performance. Another specific finding which is returned by the Arbitral Tribunal is that the appellant had not given the list of locations and, therefore, its submission that respondent No.2 had adequate lists of locations available but still failed to install the contract objects was not acceptable. In fact, on this count, the Arbitral Tribunal has commented upon the working of the appellant itself and expressed its dismay about lack of control by the Head Office of the appellant over the field offices which led to the failure of the contract. These are findings of facts which are arrived at by the Arbitral Tribunal after appreciating the evidence and documents on record. From these findings it stands established that there is a fundamental breach on the part of the appellant in carrying out its obligations, with no fault of respondent No.2 which had invested whooping amount of Rs.163 crores in the project. A perusal of the award reveals that the Tribunal investigated the conduct of entire transaction between the parties pertaining to the work order, including withholding of DTC locations, allegations and counter allegations by the parties concerning installed objects. The arbitrators did not focus on a particular breach qua particular number of objects/class of objects. Respondent No.2 is right in its submission that the fundamental breach, by its very nature, pervades the entire contract and once acted committed, the contract as a whole stands abrogated. It is on the aforesaid basis that the Arbitral Tribunal has come to the conclusion that the termination of contract by respondent No.2 was in order and valid. The proposition of law that the Arbitral Tribunal is the master of evidence and the findings of fact which are arrived at by the arbitrators on the basis of evidence on record are not to be scrutinised as if the Court was sitting in appeal now stands settled by catena of judgments pronounced by this Court without any exception thereto ((See – Associate Builders v. Delhi Development Authority, (2015) 3 SCC 49 , and S. Munishamappa v. B. Venkatarayappa & Ors., (1981) 3 SCC 260 ).44) At this stage, we may deal with the contention of the appellant to the effect that the arbitrators have themselves recorded a finding that the LC was still in operation and had not expired and, therefore, the finding of the Tribunal that the contract was terminated validly was self contradictory.45) Though this contention appears to be attractive in the first blush, we find no substance in the same on deeper examination thereof. It was rightly contended by Mr. Dada that the Arbitral Tribunal has held that since the contract was terminated on 19.02.1999, the appellant was not required to renew the LC. In other words, since there was no contract in existence after 19.02.1999, there could not be aIt was argued that respondent No.2 should have installed objects at least under categoryeven if there was breach on the part of the appellant in supplying locations for categories3. This was refuted by learned senior counsel appearing for respondent No.2 on the round that the Arbitral Tribunal had specifically considered and rejected this argument and the approach of the arbitrators is even upheld by the learned Single Judge as well as the Division Bench of the HighWe agree with the contention of respondent No.2 that these are pure findings of facts and there is no perversity therein. It may, however, be pointed out that out of 12555category objects under the work order, 9515 objects were to be installed in Kolhapur Zone, i.e. 76% of the said category. Vide letter dated 14.07.1997, the Chief Engineer, Kolhapur Zone admittedly directed respondent No.2 to first complete new installation3) and only thereafter take up installation under categoryThe locations forfrom Kolhapur were admittedly never furnished. Therefore, this contention of the appellant also warrants a rejection.52) The award of the Arbitral Tribunal having been affirmed by the learned Single Judge as well as the Division Bench of the High Court, that too after dealing with each and every argument raised by the appellant in detail, which is negatived, we hold that Mr. Dada is correct in his argument that there is no question of law which is involved herein and the only attempt of the appellant was tothe matter afresh, which wasWe see substance in the contention of respondent No.2 and are of the opinion that the appellant cannot now turn around and raise objection to the award of damages which are measured having regard to the loss suffered by respondent No.2 in terms of lease rent for reasonable period for which it would have been entitled to otherwise.55) That apart, we also find that the Arbitral Tribunal, while awarding the damages, has relied upon the judgment of this Court in Union of India & Ors. v. Sugauli Sugar Works (P) Ltd. (1976) 3In the instant case, applying the aforesaid principle, the Arbitral Tribunal, for the purpose of classification, considered a 30% reduction in lease rent to compute damages for installed objects, 50% reduction in lease rent to compute damages for manufactured but uninstalled objects and the bare cost of raw materials for the objects not manufactured. No pendente lite interest was awarded, though the proceedings went on for five and a half years. Thus, the Arbitral Tribunal awarded almost the same amount as was invested by respondent No.2 for the project. Interest was awarded only @ 10% per annum from the date of the award as opposed to the prevailing bank rate of about 21%.The aforesaid being a reasonable and plausible measure adopted by the Arbitral Tribunal for awarding the damages, there is no question of interdicting with theIn the aforesaid backdrop, we agree with the approach of the High Court in spelling out the proposition of law that once it is established that the party was justified in terminating the contract on account of fundamental breach thereof, then the said innocent party is entitled to claim damages for the entire contract, i.e. for the part which is performed and also for the part of the contract which it was prevented fromWe, thus, do not find any infirmity in the manner in which damages are awarded in favour of respondentThe learned Single Judge as well as the Division Bench of the High Court has given its imprimatur to the aforesaid findings. It, therefore, becomes apparent that the objects in question were manufactured by respondent No.2 to suit the specific needs of the appellant ad they could not be used otherwise. Therefore, there was no possibility on the part of respondent No.2 to make an endeavour to dispose of the same in order to mitigate theThe argument of the appellant on waiver is also successfully met by respondent No.2. Submission of Mr. Dada, on this argument, was that both parties went to trial before the Arbitral Tribunal on the basis that the time to start work under the contract had commenced with reference to letter dated 14.07.1997 of the appellant signed by the Chief Engineer who was the competent authority under the contract. The same Chief Engineer insisted, by letter dated 20.04.1998, that liquidated damages would be imposed if the work was not completed in time. We may point out that the Arbitral Tribunal considered and rejected this argument of waiver, as set up by theMr. Vikas Singh, learned senior counsel appearing for the appellant, referred to and relied upon various judgments in support of his contention. These judgments deal with the scope of interference in the awards passed by the arbitrators. It is not even necessary to deal with these judgments inasmuch as, on the facts of this case, as discussed in detail hereinabove, none of the judgments gets attracted. Likewise, effort on the part of the appellant to rely upon the judgment of the learned single Judge of the High Court in the first round is futile as that was set aside by the Division Bench and matter was remitted back to the single Judge of the High Court to decide itThree chamber summons were taken out by the appellant during the pendency of this appeal before the Division Bench. By these chamber summons, the appellant intended to amend the petition which was filed by it under Section 34 of the Act as well as the appeal. The High Court after detailed discussion in the impugned judgment rejected these summons. We find that the amendment sought was highly belated. Arbitration petition filed under Section 34 of the Act was sought to be amended after a delay of eight years. Further, the amendment in the appeal, taking those very grounds on which amendment in the arbitration petition was sought, was sought after a delay of 3½ years. The High Court, thus, rightly rejected these summons and it is not necessary to have any elaborate discussion on these aspects. | 0 | 17,387 | 2,174 | ### Instruction:
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dealt with this aspect and held that the contract objects were custom built in the following manner: “55. Respondents submitted that the Claimants did not make any efforts to mitigate the loss suffered. The submission is without any merit for more than one reason. In the first instance, the contract objects manufactured in pursuance of the orders of the Respondents were custom built i.e. to the specifications laid down by the Respondents and these contract objects cannot be disposed in open market. Datar deposed with reference to Exh. C 16 that efforts were made to sell the contract objects stranded in the factory to other Electricity Boards but those efforts did not succeed. It was contended by the Respondents that the claimants should have dismantled the stranded contract objects and sold the components thereof. The submission is only required to be slated to be rejected. Once an electronic instrument is dismantled, then the value almost becomes nil. In any event, the Claimants have established that efforts were made to mitigate the loss.” 61) The learned Single Judge as well as the Division Bench of the High Court has given its imprimatur to the aforesaid findings. It, therefore, becomes apparent that the objects in question were manufactured by respondent No.2 to suit the specific needs of the appellant ad they could not be used otherwise. Therefore, there was no possibility on the part of respondent No.2 to make an endeavour to dispose of the same in order to mitigate the loses. RE : WAIVER 62) The argument of the appellant on waiver is also successfully met by respondent No.2. Submission of Mr. Dada, on this argument, was that both parties went to trial before the Arbitral Tribunal on the basis that the time to start work under the contract had commenced with reference to letter dated 14.07.1997 of the appellant signed by the Chief Engineer who was the competent authority under the contract. The same Chief Engineer insisted, by letter dated 20.04.1998, that liquidated damages would be imposed if the work was not completed in time. We may point out that the Arbitral Tribunal considered and rejected this argument of waiver, as set up by the appellant, in the following words: “18... It was then contended that the Claimants had waived the right to receive the lists of locations from the Respondents. By reference to clause 5.1 of the work order, it was submitted that the Claimants were to commence installation within four months from (a) the date of the work order; (b) opening of Letter of Credit and (c) on receipt of complete list of locations, whichever is later. It was contended that the Claimants were entitled to wait till all the lists were supplied to installation, but as the Claimants commenced installation even though the entire lists were not supplied, it should be concluded that the Claimants have waived their right. The submission is desperate and wholly unfair. The Respondents were in a hurry to complete the installation within a period of 20 months with an object to save the large amount lost due to loss of energy. Merely because the Claimants acted in a reasonable manner and did not insist upon the terms of the contract, it is absurd to suggest that the Claimants waived their right to complain about non-supply of lists of locations. It was then submitted that the Claimants had installed contract objects on the oral instructions and on the basis of chits issued by some of the Officers of the Respondents and that was contrary to the terms of the work order which provided that installation should be only on locations, the lists of which are given in accordance with the format at Annexure ‘E’ to the work order. It was also submitted that on 155 locations at Jalgaon, Dhule and Aurangabad, the lists were received by the Claimants from Authorities who were not competent to issue such lists. The submission has no merit because while undertaking such a huge project, the parties were not keen on strict compliance of each and every term and condition of the contract. Such an instance would have defeated the contract at once because the contract had to be carried out over a large area and with the interaction of large number of people. These factors cannot establish that the claimants have waived their right to complaint about the failure to supply lists of location...” 63) Mr. Vikas Singh, learned senior counsel appearing for the appellant, referred to and relied upon various judgments in support of his contention. These judgments deal with the scope of interference in the awards passed by the arbitrators. It is not even necessary to deal with these judgments inasmuch as, on the facts of this case, as discussed in detail hereinabove, none of the judgments gets attracted. Likewise, effort on the part of the appellant to rely upon the judgment of the learned single Judge of the High Court in the first round is futile as that was set aside by the Division Bench and matter was remitted back to the single Judge of the High Court to decide it afresh. RE: ORDER ON CHAMBER SUMMONS 64) Three chamber summons were taken out by the appellant during the pendency of this appeal before the Division Bench. By these chamber summons, the appellant intended to amend the petition which was filed by it under Section 34 of the Act as well as the appeal. The High Court after detailed discussion in the impugned judgment rejected these summons. We find that the amendment sought was highly belated. Arbitration petition filed under Section 34 of the Act was sought to be amended after a delay of eight years. Further, the amendment in the appeal, taking those very grounds on which amendment in the arbitration petition was sought, was sought after a delay of 3½ years. The High Court, thus, rightly rejected these summons and it is not necessary to have any elaborate discussion on these aspects.
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that respondent No.2 should have installed objects at least under categoryeven if there was breach on the part of the appellant in supplying locations for categories3. This was refuted by learned senior counsel appearing for respondent No.2 on the round that the Arbitral Tribunal had specifically considered and rejected this argument and the approach of the arbitrators is even upheld by the learned Single Judge as well as the Division Bench of the HighWe agree with the contention of respondent No.2 that these are pure findings of facts and there is no perversity therein. It may, however, be pointed out that out of 12555category objects under the work order, 9515 objects were to be installed in Kolhapur Zone, i.e. 76% of the said category. Vide letter dated 14.07.1997, the Chief Engineer, Kolhapur Zone admittedly directed respondent No.2 to first complete new installation3) and only thereafter take up installation under categoryThe locations forfrom Kolhapur were admittedly never furnished. Therefore, this contention of the appellant also warrants a rejection.52) The award of the Arbitral Tribunal having been affirmed by the learned Single Judge as well as the Division Bench of the High Court, that too after dealing with each and every argument raised by the appellant in detail, which is negatived, we hold that Mr. Dada is correct in his argument that there is no question of law which is involved herein and the only attempt of the appellant was tothe matter afresh, which wasWe see substance in the contention of respondent No.2 and are of the opinion that the appellant cannot now turn around and raise objection to the award of damages which are measured having regard to the loss suffered by respondent No.2 in terms of lease rent for reasonable period for which it would have been entitled to otherwise.55) That apart, we also find that the Arbitral Tribunal, while awarding the damages, has relied upon the judgment of this Court in Union of India & Ors. v. Sugauli Sugar Works (P) Ltd. (1976) 3In the instant case, applying the aforesaid principle, the Arbitral Tribunal, for the purpose of classification, considered a 30% reduction in lease rent to compute damages for installed objects, 50% reduction in lease rent to compute damages for manufactured but uninstalled objects and the bare cost of raw materials for the objects not manufactured. No pendente lite interest was awarded, though the proceedings went on for five and a half years. Thus, the Arbitral Tribunal awarded almost the same amount as was invested by respondent No.2 for the project. Interest was awarded only @ 10% per annum from the date of the award as opposed to the prevailing bank rate of about 21%.The aforesaid being a reasonable and plausible measure adopted by the Arbitral Tribunal for awarding the damages, there is no question of interdicting with theIn the aforesaid backdrop, we agree with the approach of the High Court in spelling out the proposition of law that once it is established that the party was justified in terminating the contract on account of fundamental breach thereof, then the said innocent party is entitled to claim damages for the entire contract, i.e. for the part which is performed and also for the part of the contract which it was prevented fromWe, thus, do not find any infirmity in the manner in which damages are awarded in favour of respondentThe learned Single Judge as well as the Division Bench of the High Court has given its imprimatur to the aforesaid findings. It, therefore, becomes apparent that the objects in question were manufactured by respondent No.2 to suit the specific needs of the appellant ad they could not be used otherwise. Therefore, there was no possibility on the part of respondent No.2 to make an endeavour to dispose of the same in order to mitigate theThe argument of the appellant on waiver is also successfully met by respondent No.2. Submission of Mr. Dada, on this argument, was that both parties went to trial before the Arbitral Tribunal on the basis that the time to start work under the contract had commenced with reference to letter dated 14.07.1997 of the appellant signed by the Chief Engineer who was the competent authority under the contract. The same Chief Engineer insisted, by letter dated 20.04.1998, that liquidated damages would be imposed if the work was not completed in time. We may point out that the Arbitral Tribunal considered and rejected this argument of waiver, as set up by theMr. Vikas Singh, learned senior counsel appearing for the appellant, referred to and relied upon various judgments in support of his contention. These judgments deal with the scope of interference in the awards passed by the arbitrators. It is not even necessary to deal with these judgments inasmuch as, on the facts of this case, as discussed in detail hereinabove, none of the judgments gets attracted. Likewise, effort on the part of the appellant to rely upon the judgment of the learned single Judge of the High Court in the first round is futile as that was set aside by the Division Bench and matter was remitted back to the single Judge of the High Court to decide itThree chamber summons were taken out by the appellant during the pendency of this appeal before the Division Bench. By these chamber summons, the appellant intended to amend the petition which was filed by it under Section 34 of the Act as well as the appeal. The High Court after detailed discussion in the impugned judgment rejected these summons. We find that the amendment sought was highly belated. Arbitration petition filed under Section 34 of the Act was sought to be amended after a delay of eight years. Further, the amendment in the appeal, taking those very grounds on which amendment in the arbitration petition was sought, was sought after a delay of 3½ years. The High Court, thus, rightly rejected these summons and it is not necessary to have any elaborate discussion on these aspects.
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Savitri Sahay Vs. Sachidanand Prasad | trial Court therefore passed a decree for eviction.6. As Section 14(8) barred an Appeal, the Respondent-tenant filed a Revision in the High Court. The High Court after considering all the facts came to the conclusion that need of the Appellant cannot be said to be reasonable and in good faith as she had let out, during the pendency of the proceedings, three other flats in the same building even though they had fallen vacant and she could have occupied those flats. The High Court therefore, set aside the decree passed by the trial court and, by the impugned judgment, dismissed the Suit of the Appellant. Hence, this Appeal. 7. Mr. Sanyal submitted that under Section 14(8) the High Court only had revisional powers which were limited to satisfying itself that the order passed by the trial Court was in accordance with law. In support of this submission, he relied upon the case of Hiralal Kapur vs. Prabhu Choudhury reported in (1988) 2 SCC 172 , wherein it has been held, in the context of Section 25(B)(8) of the Delhi Rent Control Act, 1958, that even though the powers were somewhat wider than similar powers under Section 115, yet the High Court was not entitled to enter into merits of factual controversy between the parties. Mr. Sanyal also relied upon the authority in the case of Sarla Ahuja vs. United Indian Insurance Company Ltd. reported in (1998) 8 SCC 119 , wherein again, in the context of section 25(B)(8) of the Delhi Rent Control Act, 1958, it has been held that even though the word "revision" is not used the powers of the Court under this Section are revisional in nature and a reappraisal of evidence can be made only for the limited purpose of ascertaining whether the conclusion arrived at by the fact-finding Court is wholly unreasonable. Relying on those authorities, Mr. Sanyal submitted that the High Court erred in re-appreciating the entire evidence and arriving at a different conclusion. 8. We are unable to agree with the submission of Mr. Sanyal. We have perused the impugned judgment. The High Court did not re-appreciate evidence to arrive at a different conclusion. The High Court has merely set out the admitted facts and/ or facts which have been proved during the course of trial. On the admitted or proved facts the High Court felt that the conclusion arrived at by the trial Court was unreasonable and perverse. Therefore the High Court recorded its own finding. This the High Court was entitled to do once it concluded that the findings of the trial Court were perverse. 9. The next question which, however, arises is whether the conclusion of the High Court that the findings of the trial Court were perverse can be said to be correct. Under normal circumstances if a landlord during the trial gets vacant possession of some other premises which are equally suitable and choose to let them out on higher rent then it may be arguable that the need of the landlord, made out in the Eviction Petition, was not reasonable or in good faith. However, as seen above, the said Act provides specifically, in Explanation II, that even though a landlord may have two or more premises which have been let out, it is for the landlord or choose which one would be preferable to him or her and the tenant could not question such preference. In this case, the Appellant had indicated a preference for the flat occupied by the Respondent. She had given a reason why she preferred this flat. She was an old lady. She therefore could not climb to the first floor and thus the two flats on the first floor were not suitable to her. The other flat on the Southern side of this building faced a road which was a very busy road and would therefore be noisy. This particular flat faced the Bungalow in which she has been residing for so many years and also faced an open piece of land belonging to her husband. That trial Court accepts these reasons. The High Court has merely set aside the decree on the ground that the Appellant had chosen not to occupy the three other flats which became available in the same building. In our view, Explanation II to Section 11(1)(c) permitted the landlord to ignore other premises and to prefer a particular premise. The Appellant having made a preference cannot be forced to occupy other premises which may become available. Further the Appellant was not required to keep those premises vacant because her Eviction Suit was pending, nor was there any duty cast on the Appellant, under any provision of law, to offer those other premises to Respondent. If the Respondent had so desired, he could have offered to vacate the flat preferred by the landlady and move into one of those other premises. If the Appellant had refused to accept such an offer, it possibly could have been said that the landlady was merely seeking to get vacant possession in order to get higher rents. In that case it could have been inferred that the need of the Appellant was not genuine and/ or in good faith. No such case has been made out. In view of the specific provision in the said Act the reasoning of the High Court cannot be sustained.10. It was next urged that the Appellant was merely evicting the Respondent in order to let out the premises at higher rent. It was urged that the Appellant came from a very affluent and well known family in Bhagalpur and was therefore not likely to shift into the said premises. In our view, Section 17 of the said Act, which has been set out hereinabove, is a complete answer to this submission. In case the Appellant does not shift into the said premises, it will be open to the Respondent to apply, under Section 17 of the said Act, for restoration of possession and for compensation. | 1[ds]8. We are unable to agree with the submission of Mr. Sanyal. We have perused the impugned judgment. The High Court did notevidence to arrive at a different conclusion. The High Court has merely set out the admitted facts and/ or facts which have been proved during the course of trial. On the admitted or proved facts the High Court felt that the conclusion arrived at by the trial Court was unreasonable and perverse. Therefore the High Court recorded its own finding. This the High Court was entitled to do once it concluded that the findings of the trial Court were perverse.normal circumstances if a landlord during the trial gets vacant possession of some other premises which are equally suitable and choose to let them out on higher rent then it may be arguable that the need of the landlord, made out in the Eviction Petition, was not reasonable or in good faith. However, as seen above, the said Act provides specifically, in Explanation II, that even though a landlord may have two or more premises which have been let out, it is for the landlord or choose which one would be preferable to him or her and the tenant could not question such preference. In this case, the Appellant had indicated a preference for the flat occupied by the Respondent. She had given a reason why she preferred this flat. She was an old lady. She therefore could not climb to the first floor and thus the two flats on the first floor were not suitable to her. The other flat on the Southern side of this building faced a road which was a very busy road and would therefore be noisy. This particular flat faced the Bungalow in which she has been residing for so many years and also faced an open piece of land belonging to her husband. That trial Court accepts these reasons. The High Court has merely set aside the decree on the ground that the Appellant had chosen not to occupy the three other flats which became available in the same building. In our view, Explanation II to Section 11(1)(c) permitted the landlord to ignore other premises and to prefer a particular premise. The Appellant having made a preference cannot be forced to occupy other premises which may become available. Further the Appellant was not required to keep those premises vacant because her Eviction Suit was pending, nor was there any duty cast on the Appellant, under any provision of law, to offer those other premises to Respondent. If the Respondent had so desired, he could have offered to vacate the flat preferred by the landlady and move into one of those other premises. If the Appellant had refused to accept such an offer, it possibly could have been said that the landlady was merely seeking to get vacant possession in order to get higher rents. In that case it could have been inferred that the need of the Appellant was not genuine and/ or in good faith. No such case has been made out. In view of the specific provision in the said Act the reasoning of the High Court cannot be sustained.10. It was next urged that the Appellant was merely evicting the Respondent in order to let out the premises at higher rent. It was urged that the Appellant came from a very affluent and well known family in Bhagalpur and was therefore not likely to shift into the said premises. In our view, Section 17 of the said Act, which has been set out hereinabove, is a complete answer to this submission. In case the Appellant does not shift into the said premises, it will be open to the Respondent to apply, under Section 17 of the said Act, for restoration of possession and for compensation. | 1 | 2,241 | 697 | ### 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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trial Court therefore passed a decree for eviction.6. As Section 14(8) barred an Appeal, the Respondent-tenant filed a Revision in the High Court. The High Court after considering all the facts came to the conclusion that need of the Appellant cannot be said to be reasonable and in good faith as she had let out, during the pendency of the proceedings, three other flats in the same building even though they had fallen vacant and she could have occupied those flats. The High Court therefore, set aside the decree passed by the trial court and, by the impugned judgment, dismissed the Suit of the Appellant. Hence, this Appeal. 7. Mr. Sanyal submitted that under Section 14(8) the High Court only had revisional powers which were limited to satisfying itself that the order passed by the trial Court was in accordance with law. In support of this submission, he relied upon the case of Hiralal Kapur vs. Prabhu Choudhury reported in (1988) 2 SCC 172 , wherein it has been held, in the context of Section 25(B)(8) of the Delhi Rent Control Act, 1958, that even though the powers were somewhat wider than similar powers under Section 115, yet the High Court was not entitled to enter into merits of factual controversy between the parties. Mr. Sanyal also relied upon the authority in the case of Sarla Ahuja vs. United Indian Insurance Company Ltd. reported in (1998) 8 SCC 119 , wherein again, in the context of section 25(B)(8) of the Delhi Rent Control Act, 1958, it has been held that even though the word "revision" is not used the powers of the Court under this Section are revisional in nature and a reappraisal of evidence can be made only for the limited purpose of ascertaining whether the conclusion arrived at by the fact-finding Court is wholly unreasonable. Relying on those authorities, Mr. Sanyal submitted that the High Court erred in re-appreciating the entire evidence and arriving at a different conclusion. 8. We are unable to agree with the submission of Mr. Sanyal. We have perused the impugned judgment. The High Court did not re-appreciate evidence to arrive at a different conclusion. The High Court has merely set out the admitted facts and/ or facts which have been proved during the course of trial. On the admitted or proved facts the High Court felt that the conclusion arrived at by the trial Court was unreasonable and perverse. Therefore the High Court recorded its own finding. This the High Court was entitled to do once it concluded that the findings of the trial Court were perverse. 9. The next question which, however, arises is whether the conclusion of the High Court that the findings of the trial Court were perverse can be said to be correct. Under normal circumstances if a landlord during the trial gets vacant possession of some other premises which are equally suitable and choose to let them out on higher rent then it may be arguable that the need of the landlord, made out in the Eviction Petition, was not reasonable or in good faith. However, as seen above, the said Act provides specifically, in Explanation II, that even though a landlord may have two or more premises which have been let out, it is for the landlord or choose which one would be preferable to him or her and the tenant could not question such preference. In this case, the Appellant had indicated a preference for the flat occupied by the Respondent. She had given a reason why she preferred this flat. She was an old lady. She therefore could not climb to the first floor and thus the two flats on the first floor were not suitable to her. The other flat on the Southern side of this building faced a road which was a very busy road and would therefore be noisy. This particular flat faced the Bungalow in which she has been residing for so many years and also faced an open piece of land belonging to her husband. That trial Court accepts these reasons. The High Court has merely set aside the decree on the ground that the Appellant had chosen not to occupy the three other flats which became available in the same building. In our view, Explanation II to Section 11(1)(c) permitted the landlord to ignore other premises and to prefer a particular premise. The Appellant having made a preference cannot be forced to occupy other premises which may become available. Further the Appellant was not required to keep those premises vacant because her Eviction Suit was pending, nor was there any duty cast on the Appellant, under any provision of law, to offer those other premises to Respondent. If the Respondent had so desired, he could have offered to vacate the flat preferred by the landlady and move into one of those other premises. If the Appellant had refused to accept such an offer, it possibly could have been said that the landlady was merely seeking to get vacant possession in order to get higher rents. In that case it could have been inferred that the need of the Appellant was not genuine and/ or in good faith. No such case has been made out. In view of the specific provision in the said Act the reasoning of the High Court cannot be sustained.10. It was next urged that the Appellant was merely evicting the Respondent in order to let out the premises at higher rent. It was urged that the Appellant came from a very affluent and well known family in Bhagalpur and was therefore not likely to shift into the said premises. In our view, Section 17 of the said Act, which has been set out hereinabove, is a complete answer to this submission. In case the Appellant does not shift into the said premises, it will be open to the Respondent to apply, under Section 17 of the said Act, for restoration of possession and for compensation.
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8. We are unable to agree with the submission of Mr. Sanyal. We have perused the impugned judgment. The High Court did notevidence to arrive at a different conclusion. The High Court has merely set out the admitted facts and/ or facts which have been proved during the course of trial. On the admitted or proved facts the High Court felt that the conclusion arrived at by the trial Court was unreasonable and perverse. Therefore the High Court recorded its own finding. This the High Court was entitled to do once it concluded that the findings of the trial Court were perverse.normal circumstances if a landlord during the trial gets vacant possession of some other premises which are equally suitable and choose to let them out on higher rent then it may be arguable that the need of the landlord, made out in the Eviction Petition, was not reasonable or in good faith. However, as seen above, the said Act provides specifically, in Explanation II, that even though a landlord may have two or more premises which have been let out, it is for the landlord or choose which one would be preferable to him or her and the tenant could not question such preference. In this case, the Appellant had indicated a preference for the flat occupied by the Respondent. She had given a reason why she preferred this flat. She was an old lady. She therefore could not climb to the first floor and thus the two flats on the first floor were not suitable to her. The other flat on the Southern side of this building faced a road which was a very busy road and would therefore be noisy. This particular flat faced the Bungalow in which she has been residing for so many years and also faced an open piece of land belonging to her husband. That trial Court accepts these reasons. The High Court has merely set aside the decree on the ground that the Appellant had chosen not to occupy the three other flats which became available in the same building. In our view, Explanation II to Section 11(1)(c) permitted the landlord to ignore other premises and to prefer a particular premise. The Appellant having made a preference cannot be forced to occupy other premises which may become available. Further the Appellant was not required to keep those premises vacant because her Eviction Suit was pending, nor was there any duty cast on the Appellant, under any provision of law, to offer those other premises to Respondent. If the Respondent had so desired, he could have offered to vacate the flat preferred by the landlady and move into one of those other premises. If the Appellant had refused to accept such an offer, it possibly could have been said that the landlady was merely seeking to get vacant possession in order to get higher rents. In that case it could have been inferred that the need of the Appellant was not genuine and/ or in good faith. No such case has been made out. In view of the specific provision in the said Act the reasoning of the High Court cannot be sustained.10. It was next urged that the Appellant was merely evicting the Respondent in order to let out the premises at higher rent. It was urged that the Appellant came from a very affluent and well known family in Bhagalpur and was therefore not likely to shift into the said premises. In our view, Section 17 of the said Act, which has been set out hereinabove, is a complete answer to this submission. In case the Appellant does not shift into the said premises, it will be open to the Respondent to apply, under Section 17 of the said Act, for restoration of possession and for compensation.
|
Mahesh Bhagat Vs. Ram Baran Mahto & Ors | years from 1320 to 1359 fasli on payment of a fixed annual jama of Rs. 6203/4/- Out of this jama the Kothi was to pay annually government revenue and cess amounting to Rs. 1203/4/- It appears that on the same day Abdul Karim took loans from the Bhikhanpur Kothi and two ladies on executing two separate bonds. Ex. 4 provides that between 1320 to 1331 fasli the balance Rs. 5000/- of the annual jama would be paid or appropriated towards the liquidation of the two debts and between 1332 and 1344 fasli would be appropriated towards full satisfaction of the debt due to the Kothi. The deed further provided that from 1345 fasli until 1359 fasli the Kothi would pay the entire balance of Rs. 5000/- to Abdul Karim. It is to he noticed that the ladies were not parties to Ex. 4.The loan was taken from the Kothi on a separate bond. Ex. 4 provided for the repayment of the loan, but the Kothi was entitled to remain in possession for 15 years after the loan was fully satisfied. The gist of the document was a letting of the village for the full term of 40 years. There was no express or implied grant of a right of redemption of the village on repayment of the loan. The document was not intended to create a relationship of debtor and creditor or a security for the repayment of a debt. In our opinion, the transaction was a lease and not usufructuary mortgage.4. The question then is whether the tenants of the Bhikhanpur Kothi acquired occupancy rights in plots Nos. 183 and 184. Section 21 (l) of the Bihar Tenancy Act 1885; (Act 8 of 1885) reads :"S. 21 (1) Every person who is a settled raiyat of a village within the meaning of the last foregoing section shall have a right of occupancy in all land for the time being held by him as a raiyat in that village."5. A settled raiyat of a village is defined in S. 20 as a person who for a period of 12 years continuously held land in that village as a raiyat. It is conceded that the tenants were settled raiyats of village Khanjadpur within the meaning of Section 20. The question then is whether they held the plots as raiyats. Under Section 5 (2) a "raiyat" is a person who has acquired a right to hold land as a cultivating tenant either of the proprietor or of the tenure holder. Now the sub-lessees under Exs. A and A-1 were cultivating tenants of the Bhikhanpur Kothi. Exs. A and A-1 provided that the tenants would cultivate plots 183 and 184, get the same cultivated by others and appropriate the produce thereof. It is conceded that if Ex. 4 was a lease, the Bhikhanpur Kothi was a tenure holder. However, Ex. 4 stipulated that the Bhikhanpur Kothi should not execute a lease patta in favour of any tenant for any term extending beyond 1359 fasli when the term of Ex. 4 would expire. It is argued that in view of this stipulation, the tenants) of the Bhikhanpur Kothi could not acquire the right to hold the lands after l359 fasli. Now the settlements under Exs. A and A-1 did not contravene Ex. 4. The term of the last settlement expired in 1356 fasli. The tenancies were lawful at their inception. The tenants acquired the right to hold the lands as raiyats. As settled raiyats of the village they got rights of occupancy m the lands under S. 21 (1).6. The general rule is that no one can confer on another a better title than he himself has. The Bhikhanpur Kothi could not make a grant of the right to occupy the lands after the expiry of the lease in their favour. But the right of occupancy is not the creation of any grant from the Kothi. It is conferred by S. 21 (I). As the tenants are raiyats, the law steps in and protects them from eviction.7. The decision in Mahabir Gope v. Harbans Narain Singh, 1952 SCR 755 = (AIR 1952 SC 205 ) is distinguishable. In that case the mortgagee from the proprietor settled the lands with an ancestor of the defendant. The mortgage deed prohibited the mortgagee from inducting tenants on the lands. The mortgagee was neither a proprietor nor a tenure holder. The tenant was not a settled raiyat of the village. In these circumstances the Court held that the defendant did not acquire occupancy rights in the land under Sections 20 and 21 and was liable to be ejected by the proprietor on redemption-of the mortgage. In the present case the defendants are settled raiyats of the village. They held the lands as tenants of the tenure holder.There was no prohibition in the document creating the tenure against inducting raiyats on the land. In Atal Chandra Rishi v. Lakhi Narain Chose, (1909) 10 Cal LJ 55 the proprietor granted an ijara stipulating that ijaradar would not be competent to grant a sub-lease which was to continue after the expiry of the ijara. The ijaradar settled the lands with a tenant. The possession of the tenant in its inception was lawful. The Calcutta High Court held that in spite of the stipulation in the ijara the tenant became a raiyat whose rights were regulated by the provisions of the Bengal Tenancy Act and he could be ejected by the proprietor only on one or more of the grounds specified in Section 44.Similarly in this case the tenancy in its inception was lawful. The tenants became raiyats and as they were settled raiyats of the village they acquired rights of occupancy and could not be ejected except on one or more of the grounds mentioned in Section 25.8. In our opinion, the predecessor-interest of the contesting defendants acquired occupancy rights in plots Nos 183 and 184 and the courts below rightly dismissed the suit for recovery of possession of those plots. | 0[ds]5. A settled raiyat of a village is defined in S. 20 as a person who for a period of 12 years continuously held land in that village as a raiyat. It is conceded that the tenants were settled raiyats of village Khanjadpur within the meaning of Section 20. The question then is whether they held the plots as raiyats. Under Section 5 (2) a "raiyat" is a person who has acquired a right to hold land as a cultivating tenant either of the proprietor or of the tenure holder. Now the sub-lessees under Exs. A and A-1 were cultivating tenants of the Bhikhanpur Kothi. Exs. A and A-1 provided that the tenants would cultivate plots 183 and 184, get the same cultivated by others and appropriate the produce thereof. It is conceded that if Ex. 4 was a lease, the Bhikhanpur Kothi was a tenure holder. However, Ex. 4 stipulated that the Bhikhanpur Kothi should not execute a lease patta in favour of any tenant for any term extending beyond 1359 fasli when the term of Ex. 4 would expire. It is argued that in view of this stipulation, the tenants) of the Bhikhanpur Kothi could not acquire the right to hold the lands after l359 fasli. Now the settlements under Exs. A and A-1 did not contravene Ex. 4. The term of the last settlement expired in 1356 fasli. The tenancies were lawful at their inception. The tenants acquired the right to hold the lands as raiyats. As settled raiyats of the village they got rights of occupancy m the lands under S. 21 (1).6. The general rule is that no one can confer on another a better title than he himself has. The Bhikhanpur Kothi could not make a grant of the right to occupy the lands after the expiry of the lease in their favour. But the right of occupancy is not the creation of any grant from the Kothi. It is conferred by S. 21 (I). As the tenants are raiyats, the law steps in and protects them from eviction.In our opinion, the predecessor-interest of the contesting defendants acquired occupancy rights in plots Nos 183 and 184 and the courts below rightly dismissed the suit for recovery of possession of those plots. | 0 | 1,573 | 424 | ### 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:
years from 1320 to 1359 fasli on payment of a fixed annual jama of Rs. 6203/4/- Out of this jama the Kothi was to pay annually government revenue and cess amounting to Rs. 1203/4/- It appears that on the same day Abdul Karim took loans from the Bhikhanpur Kothi and two ladies on executing two separate bonds. Ex. 4 provides that between 1320 to 1331 fasli the balance Rs. 5000/- of the annual jama would be paid or appropriated towards the liquidation of the two debts and between 1332 and 1344 fasli would be appropriated towards full satisfaction of the debt due to the Kothi. The deed further provided that from 1345 fasli until 1359 fasli the Kothi would pay the entire balance of Rs. 5000/- to Abdul Karim. It is to he noticed that the ladies were not parties to Ex. 4.The loan was taken from the Kothi on a separate bond. Ex. 4 provided for the repayment of the loan, but the Kothi was entitled to remain in possession for 15 years after the loan was fully satisfied. The gist of the document was a letting of the village for the full term of 40 years. There was no express or implied grant of a right of redemption of the village on repayment of the loan. The document was not intended to create a relationship of debtor and creditor or a security for the repayment of a debt. In our opinion, the transaction was a lease and not usufructuary mortgage.4. The question then is whether the tenants of the Bhikhanpur Kothi acquired occupancy rights in plots Nos. 183 and 184. Section 21 (l) of the Bihar Tenancy Act 1885; (Act 8 of 1885) reads :"S. 21 (1) Every person who is a settled raiyat of a village within the meaning of the last foregoing section shall have a right of occupancy in all land for the time being held by him as a raiyat in that village."5. A settled raiyat of a village is defined in S. 20 as a person who for a period of 12 years continuously held land in that village as a raiyat. It is conceded that the tenants were settled raiyats of village Khanjadpur within the meaning of Section 20. The question then is whether they held the plots as raiyats. Under Section 5 (2) a "raiyat" is a person who has acquired a right to hold land as a cultivating tenant either of the proprietor or of the tenure holder. Now the sub-lessees under Exs. A and A-1 were cultivating tenants of the Bhikhanpur Kothi. Exs. A and A-1 provided that the tenants would cultivate plots 183 and 184, get the same cultivated by others and appropriate the produce thereof. It is conceded that if Ex. 4 was a lease, the Bhikhanpur Kothi was a tenure holder. However, Ex. 4 stipulated that the Bhikhanpur Kothi should not execute a lease patta in favour of any tenant for any term extending beyond 1359 fasli when the term of Ex. 4 would expire. It is argued that in view of this stipulation, the tenants) of the Bhikhanpur Kothi could not acquire the right to hold the lands after l359 fasli. Now the settlements under Exs. A and A-1 did not contravene Ex. 4. The term of the last settlement expired in 1356 fasli. The tenancies were lawful at their inception. The tenants acquired the right to hold the lands as raiyats. As settled raiyats of the village they got rights of occupancy m the lands under S. 21 (1).6. The general rule is that no one can confer on another a better title than he himself has. The Bhikhanpur Kothi could not make a grant of the right to occupy the lands after the expiry of the lease in their favour. But the right of occupancy is not the creation of any grant from the Kothi. It is conferred by S. 21 (I). As the tenants are raiyats, the law steps in and protects them from eviction.7. The decision in Mahabir Gope v. Harbans Narain Singh, 1952 SCR 755 = (AIR 1952 SC 205 ) is distinguishable. In that case the mortgagee from the proprietor settled the lands with an ancestor of the defendant. The mortgage deed prohibited the mortgagee from inducting tenants on the lands. The mortgagee was neither a proprietor nor a tenure holder. The tenant was not a settled raiyat of the village. In these circumstances the Court held that the defendant did not acquire occupancy rights in the land under Sections 20 and 21 and was liable to be ejected by the proprietor on redemption-of the mortgage. In the present case the defendants are settled raiyats of the village. They held the lands as tenants of the tenure holder.There was no prohibition in the document creating the tenure against inducting raiyats on the land. In Atal Chandra Rishi v. Lakhi Narain Chose, (1909) 10 Cal LJ 55 the proprietor granted an ijara stipulating that ijaradar would not be competent to grant a sub-lease which was to continue after the expiry of the ijara. The ijaradar settled the lands with a tenant. The possession of the tenant in its inception was lawful. The Calcutta High Court held that in spite of the stipulation in the ijara the tenant became a raiyat whose rights were regulated by the provisions of the Bengal Tenancy Act and he could be ejected by the proprietor only on one or more of the grounds specified in Section 44.Similarly in this case the tenancy in its inception was lawful. The tenants became raiyats and as they were settled raiyats of the village they acquired rights of occupancy and could not be ejected except on one or more of the grounds mentioned in Section 25.8. In our opinion, the predecessor-interest of the contesting defendants acquired occupancy rights in plots Nos 183 and 184 and the courts below rightly dismissed the suit for recovery of possession of those plots.
### Response:
0
### Explanation:
5. A settled raiyat of a village is defined in S. 20 as a person who for a period of 12 years continuously held land in that village as a raiyat. It is conceded that the tenants were settled raiyats of village Khanjadpur within the meaning of Section 20. The question then is whether they held the plots as raiyats. Under Section 5 (2) a "raiyat" is a person who has acquired a right to hold land as a cultivating tenant either of the proprietor or of the tenure holder. Now the sub-lessees under Exs. A and A-1 were cultivating tenants of the Bhikhanpur Kothi. Exs. A and A-1 provided that the tenants would cultivate plots 183 and 184, get the same cultivated by others and appropriate the produce thereof. It is conceded that if Ex. 4 was a lease, the Bhikhanpur Kothi was a tenure holder. However, Ex. 4 stipulated that the Bhikhanpur Kothi should not execute a lease patta in favour of any tenant for any term extending beyond 1359 fasli when the term of Ex. 4 would expire. It is argued that in view of this stipulation, the tenants) of the Bhikhanpur Kothi could not acquire the right to hold the lands after l359 fasli. Now the settlements under Exs. A and A-1 did not contravene Ex. 4. The term of the last settlement expired in 1356 fasli. The tenancies were lawful at their inception. The tenants acquired the right to hold the lands as raiyats. As settled raiyats of the village they got rights of occupancy m the lands under S. 21 (1).6. The general rule is that no one can confer on another a better title than he himself has. The Bhikhanpur Kothi could not make a grant of the right to occupy the lands after the expiry of the lease in their favour. But the right of occupancy is not the creation of any grant from the Kothi. It is conferred by S. 21 (I). As the tenants are raiyats, the law steps in and protects them from eviction.In our opinion, the predecessor-interest of the contesting defendants acquired occupancy rights in plots Nos 183 and 184 and the courts below rightly dismissed the suit for recovery of possession of those plots.
|
Mahabir Auto Stores & Ors Vs. Indian Oil Corporation & Ors | directory words like "may". More importantly, these exclude all those who are part of the existing network and apply for fresh appointment of new distributors. The appellant was part of the existing network and was not to be inducted as a new distributor and the appellant-firm falls within the existing network and has always been so treated continuously and uninterruptedly from 1965 to 1983, it was the case of the appellants. It was contended that the appellant-firm was entitled to relief, inter alia, on grounds of promissory estoppel, unreasonable and arbitrary exclusion, and discriminatory treatment under Article 14 of the Constitution. 15. Mr. Salve on behalf of the respondent sought to urge that the appellant-firm had never been appointed as a Lube Distributor. There is no letter of intent, letter of appointment, much less letter at all. Ad-hoc supplies of lube products alone had been made to the appellant from 1965 onwards. The procedure adopted for the supply of lube products was that the appellant would writ a letter to the company whereupon the Divisional Office, Lube Section would process the same. The policy decision in December 1982 indicated that no new distributor for lube products would be appointed and no new products would be distributed either through the existing network, of existing Lube Distributors or to authorised dealers of other products such as, petrol, SKO, LDO and HSD. It was submitted that as a result of the policy it was not the appellant alone to whom the supplies were discontinued. There was similar discontinuance of supplies to 24 other parties whose names were given in the counter-affidavit. 16. Mr. Salve submitted that in private law field there was no scope for applying the doctrine of arbitrariness or mala fides. The validity of the action of the parties to be tested, it was urged on behalf of the respondent, on the basis of "right" and not "power". A plea of arbitrariness/mala fides as being so gross cannot shift a matter falling in private law field to public law field. According to Mr. Salve to permit the same would result in anomalous situation that whenever State is involved it would always be public law field, this would mean all redress against the State would fall in the writ jurisdiction and not in suits before civil courts. 17. We are of the opinion that in all such cases whether public law or private law rights are involved, depends upon the facts and circumstances of the case. The dichotomy between rights and remedies cannot be obliterated by any strait-jacket formula. It has to be examined in each particular case. Mr. Salve sought to urge that there are certain cases under Article 14 of arbitrary exercise of such "power" and not cases of exercise of a "right" arising either under a contract or under a statute. We are of the opinion that that would depend upon the factual matrix.18. Having considered the facts and circumstances of the case and the nature of the contentions and the dealing between the parties and in view of the present state of law, we are of the opinion that decision of the State/public authority under Article 298 of the Constitution, is an administrative decision and can be impeached on the grounds available in public law field. It appears to us that in respect of corporation like IOC when without informing the parties concerned, as in the case of the appellant-firm herein on alleged change of policy and on that basis action to seek to bring to an end to course of transaction over 18 years involving large amounts of money is not fair action, especially in view of the monopolistic nature of the power of the respondent in this field. Therefore, it is necessary to reiterate that even in the field of public law, the relevant persons concerned or to be affected, should be taken into confidence. Whether and in what circumstances that confidence should be taken into consideration cannot be laid down on any strait-jacket basis. It depends on the nature of the right involved and nature of the power sought to be exercised in a particular situation. It is true that there is instrumentality of a State has the right to function in public field or private field is a matter which, in our opinion, depends upon the facts and circumstances of the situation, but such exercise of power cannot be dealt with by the State or the instrumentality of the State without informing and taking into confidence, the party whose rights and powers are affected or sought to be affected, into confidence. In such situations most often people feel aggrieved by exclusion of knowledge if not taken into confidence.19. Such transaction should continue as an administrative decision with the organ of the State. It may be contractual or statutory but in a situation between the parties for nearly two decades, such procedure should be followed which will be reasonable, fair and just, that is, the process which normally be accepted (sic is expected) to be followed by an organ of the State and that process must be conscious and all those affected should be taken into confidence.20. Having regard to the nature of the transaction, we are of the opinion that it would be appropriate to state that in cases where the instrumentality of the state enters the contractual field, it should be governed by the incidence of the contract. It is true that it may not be necessary to give reasons but, in our opinion, in the field of this nature fairness must be there to the parties concerned, and having regard to the large number or the long period and the nature of the dealings between the parties, the appellant should have been taken into confidence. Equality and fairness at least demands this much from an instrumentality of the State dealing with a right of the State not to treat the contract as subsisting. We must, however, evolve such process which will work. | 1[ds]From the nature of the business carried on by the appellants, it was manifest to us that the supply of the lubricants of the type with which the respondent had a monopoly, could be carried on by the appellants only as the supplier from the respondent. That business was not possible otherwise. The respondent had monopoly in that respect. This aspect is important. The respondent company was supplying from 1965 to 1883 large quantities of lubricant oil and from 1983 onwards till 1989 supplies were stopped suddenly on May 27, 1983. There is no dispute that no intimation was given, no notice was given, no query or clarification sought for and there was no adjudication as such. It was held that the appellant firm was not entitled to supply; the stoppage of supply in May 1983 was (sic not), therefore, bad.We are of the opinion that in all such cases whether public law or private law rights are involved, depends upon the facts and circumstances of the case. The dichotomy between rights and remedies cannot be obliterated by anyformula. It has to be examined in each particularare of the opinion that that would depend upon the factual matrix.18. Having considered the facts and circumstances of the case and the nature of the contentions and the dealing between the parties and in view of the present state of law, we are of the opinion that decision of the State/public authority under Article 298 of the Constitution, is an administrative decision and can be impeached on the grounds available in public law field. It appears to us that in respect of corporation like IOC when without informing the parties concerned, as in the case of theherein on alleged change of policy and on that basis action to seek to bring to an end to course of transaction over 18 years involving large amounts of money is not fair action, especially in view of the monopolistic nature of the power of the respondent in this field. Therefore, it is necessary to reiterate that even in the field of public law, the relevant persons concerned or to be affected, should be taken into confidence. Whether and in what circumstances that confidence should be taken into consideration cannot be laid down on anybasis. It depends on the nature of the right involved and nature of the power sought to be exercised in a particular situation. It is true that there is instrumentality of a State has the right to function in public field or private field is a matter which, in our opinion, depends upon the facts and circumstances of the situation, but such exercise of power cannot be dealt with by the State or the instrumentality of the State without informing and taking into confidence, the party whose rights and powers are affected or sought to be affected, into confidence. In such situations most often people feel aggrieved by exclusion of knowledge if not taken into confidence.19. Such transaction should continue as an administrative decision with the organ of the State. It may be contractual or statutory but in a situation between the parties for nearly two decades, such procedure should be followed which will be reasonable, fair and just, that is, the process which normally be accepted (sic is expected) to be followed by an organ of the State and that process must be conscious and all those affected should be taken into confidence.20. Having regard to the nature of the transaction, we are of the opinion that it would be appropriate to state that in cases where the instrumentality of the state enters the contractual field, it should be governed by the incidence of the contract. It is true that it may not be necessary to give reasons but, in our opinion, in the field of this nature fairness must be there to the parties concerned, and having regard to the large number or the long period and the nature of the dealings between the parties, the appellant should have been taken into confidence. Equality and fairness at least demands this much from an instrumentality of the State dealing with a right of the State not to treat the contract as subsisting. We must, however, evolve such process which will work. | 1 | 5,022 | 775 | ### 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:
directory words like "may". More importantly, these exclude all those who are part of the existing network and apply for fresh appointment of new distributors. The appellant was part of the existing network and was not to be inducted as a new distributor and the appellant-firm falls within the existing network and has always been so treated continuously and uninterruptedly from 1965 to 1983, it was the case of the appellants. It was contended that the appellant-firm was entitled to relief, inter alia, on grounds of promissory estoppel, unreasonable and arbitrary exclusion, and discriminatory treatment under Article 14 of the Constitution. 15. Mr. Salve on behalf of the respondent sought to urge that the appellant-firm had never been appointed as a Lube Distributor. There is no letter of intent, letter of appointment, much less letter at all. Ad-hoc supplies of lube products alone had been made to the appellant from 1965 onwards. The procedure adopted for the supply of lube products was that the appellant would writ a letter to the company whereupon the Divisional Office, Lube Section would process the same. The policy decision in December 1982 indicated that no new distributor for lube products would be appointed and no new products would be distributed either through the existing network, of existing Lube Distributors or to authorised dealers of other products such as, petrol, SKO, LDO and HSD. It was submitted that as a result of the policy it was not the appellant alone to whom the supplies were discontinued. There was similar discontinuance of supplies to 24 other parties whose names were given in the counter-affidavit. 16. Mr. Salve submitted that in private law field there was no scope for applying the doctrine of arbitrariness or mala fides. The validity of the action of the parties to be tested, it was urged on behalf of the respondent, on the basis of "right" and not "power". A plea of arbitrariness/mala fides as being so gross cannot shift a matter falling in private law field to public law field. According to Mr. Salve to permit the same would result in anomalous situation that whenever State is involved it would always be public law field, this would mean all redress against the State would fall in the writ jurisdiction and not in suits before civil courts. 17. We are of the opinion that in all such cases whether public law or private law rights are involved, depends upon the facts and circumstances of the case. The dichotomy between rights and remedies cannot be obliterated by any strait-jacket formula. It has to be examined in each particular case. Mr. Salve sought to urge that there are certain cases under Article 14 of arbitrary exercise of such "power" and not cases of exercise of a "right" arising either under a contract or under a statute. We are of the opinion that that would depend upon the factual matrix.18. Having considered the facts and circumstances of the case and the nature of the contentions and the dealing between the parties and in view of the present state of law, we are of the opinion that decision of the State/public authority under Article 298 of the Constitution, is an administrative decision and can be impeached on the grounds available in public law field. It appears to us that in respect of corporation like IOC when without informing the parties concerned, as in the case of the appellant-firm herein on alleged change of policy and on that basis action to seek to bring to an end to course of transaction over 18 years involving large amounts of money is not fair action, especially in view of the monopolistic nature of the power of the respondent in this field. Therefore, it is necessary to reiterate that even in the field of public law, the relevant persons concerned or to be affected, should be taken into confidence. Whether and in what circumstances that confidence should be taken into consideration cannot be laid down on any strait-jacket basis. It depends on the nature of the right involved and nature of the power sought to be exercised in a particular situation. It is true that there is instrumentality of a State has the right to function in public field or private field is a matter which, in our opinion, depends upon the facts and circumstances of the situation, but such exercise of power cannot be dealt with by the State or the instrumentality of the State without informing and taking into confidence, the party whose rights and powers are affected or sought to be affected, into confidence. In such situations most often people feel aggrieved by exclusion of knowledge if not taken into confidence.19. Such transaction should continue as an administrative decision with the organ of the State. It may be contractual or statutory but in a situation between the parties for nearly two decades, such procedure should be followed which will be reasonable, fair and just, that is, the process which normally be accepted (sic is expected) to be followed by an organ of the State and that process must be conscious and all those affected should be taken into confidence.20. Having regard to the nature of the transaction, we are of the opinion that it would be appropriate to state that in cases where the instrumentality of the state enters the contractual field, it should be governed by the incidence of the contract. It is true that it may not be necessary to give reasons but, in our opinion, in the field of this nature fairness must be there to the parties concerned, and having regard to the large number or the long period and the nature of the dealings between the parties, the appellant should have been taken into confidence. Equality and fairness at least demands this much from an instrumentality of the State dealing with a right of the State not to treat the contract as subsisting. We must, however, evolve such process which will work.
### Response:
1
### Explanation:
From the nature of the business carried on by the appellants, it was manifest to us that the supply of the lubricants of the type with which the respondent had a monopoly, could be carried on by the appellants only as the supplier from the respondent. That business was not possible otherwise. The respondent had monopoly in that respect. This aspect is important. The respondent company was supplying from 1965 to 1883 large quantities of lubricant oil and from 1983 onwards till 1989 supplies were stopped suddenly on May 27, 1983. There is no dispute that no intimation was given, no notice was given, no query or clarification sought for and there was no adjudication as such. It was held that the appellant firm was not entitled to supply; the stoppage of supply in May 1983 was (sic not), therefore, bad.We are of the opinion that in all such cases whether public law or private law rights are involved, depends upon the facts and circumstances of the case. The dichotomy between rights and remedies cannot be obliterated by anyformula. It has to be examined in each particularare of the opinion that that would depend upon the factual matrix.18. Having considered the facts and circumstances of the case and the nature of the contentions and the dealing between the parties and in view of the present state of law, we are of the opinion that decision of the State/public authority under Article 298 of the Constitution, is an administrative decision and can be impeached on the grounds available in public law field. It appears to us that in respect of corporation like IOC when without informing the parties concerned, as in the case of theherein on alleged change of policy and on that basis action to seek to bring to an end to course of transaction over 18 years involving large amounts of money is not fair action, especially in view of the monopolistic nature of the power of the respondent in this field. Therefore, it is necessary to reiterate that even in the field of public law, the relevant persons concerned or to be affected, should be taken into confidence. Whether and in what circumstances that confidence should be taken into consideration cannot be laid down on anybasis. It depends on the nature of the right involved and nature of the power sought to be exercised in a particular situation. It is true that there is instrumentality of a State has the right to function in public field or private field is a matter which, in our opinion, depends upon the facts and circumstances of the situation, but such exercise of power cannot be dealt with by the State or the instrumentality of the State without informing and taking into confidence, the party whose rights and powers are affected or sought to be affected, into confidence. In such situations most often people feel aggrieved by exclusion of knowledge if not taken into confidence.19. Such transaction should continue as an administrative decision with the organ of the State. It may be contractual or statutory but in a situation between the parties for nearly two decades, such procedure should be followed which will be reasonable, fair and just, that is, the process which normally be accepted (sic is expected) to be followed by an organ of the State and that process must be conscious and all those affected should be taken into confidence.20. Having regard to the nature of the transaction, we are of the opinion that it would be appropriate to state that in cases where the instrumentality of the state enters the contractual field, it should be governed by the incidence of the contract. It is true that it may not be necessary to give reasons but, in our opinion, in the field of this nature fairness must be there to the parties concerned, and having regard to the large number or the long period and the nature of the dealings between the parties, the appellant should have been taken into confidence. Equality and fairness at least demands this much from an instrumentality of the State dealing with a right of the State not to treat the contract as subsisting. We must, however, evolve such process which will work.
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Krishnan & Anr Vs. Krishnaveni & Anr | will come into play when there is no provision for redressal of the grievance of the aggrieved party. In that case, when allegations of defamatory statements were published in the newspapers against the Law Minister, the State Government had decided to prosecute the appellant for offence under Section 500, IPC. After obtaining the sanction, on a complaint made by the public prosecutor, cognizance of the commission of the offence by the appellant was taken to take trial in the Sessions Court. Thereafter, the appellant filed an application to dismiss the complaint on the ground that Court had no jurisdiction to entertain the complaint. The Sessions Judge rejected all the contentions and framed the charges under Section 406. The Order of the Sessions Judge was challenged in revision in the High Court. On a preliminary objection raised on the maintainability, this Court held that power of the High Court to entertain the revision was not taken away under Section 397 or inherent power under Section 482 of the Code. 12. In V.C. Shukla v. State through C.B.I., 1980(2) SCR 380 at 393, a four-Judge Bench per majority had held that sub-section (3) of Section 397, however, does not limit at all the inherent powers of the High Court contained in Section 482. It merely curbs the revisional power given to the High Court or the Sessions Court under Section 397(1) of the Code. In Rajan Kumar Manchandas case (supra), the case related to release of a truck from attachment, obviously on filing of an interlocutory application. It was contended that there was prohibition on the revision by operation of Section 397(2) of the Code. In that context it was held that it was not revisable under Section 482 in exercise of inherent powers by operation of sub-section (3) of Section 397. On the facts in that case, it was held that by virtue of provisions contained in Section 397(3), the revision is not maintainable. In Dharam Pals case (supra) which related to the exercise of power to issue an order of attachment under Section 146 of the Code, it was held that the inherent power under Section 482 was prohibited. On the facts in that case it could be said that the learned Judges would be justified in holding that it was not revisable since it was prohibitory interim order of attachment covered under Section 397(2) of the Code but the observations of the learned Judges that the High Court had no power under Section 482 of the Code were not correct in view of the ratio of this Court in Madhu Limayes case (supra) as upheld in V.C. Shuklas case (supra) and also in view of our observations stated earlier. The ratio in Deetpis case (supra) is also not apposite to the facts in the present case. To the contrary, in that case an application for discharge of the accused was filed in the Court of Magistrate for an offence under Section 498A, IPC. The learned Magistrate and the Sessions Judge dismissed the petition. In the revision at the instance of the accused, on a wrong concession made by the counsel appearing for the State that the record did not contain allegations constituting the offence under Section 498-A, the High Court without applying its mind had discharged the accused. On appeal, this Court after going through the record noted that the concession made by the counsel was wrong. The record did contain the allegations to prove the charge under Section 498A, IPC. The High Court, since it failed to apply its mind, had committed an error of law in discharging the accused leading to the miscarriage of justice. In that context, this Court held that the order of the Sessions Judge operated as a bar to entertain the application under Section 482 of the Code. In view of the fact that the order of the High Court had led to the miscarriage of justice, this Court had set aside the order of the High Court and confirmed that of the Magistrate. 13. The ratio of Simrikhias case (supra) has no application to the facts in this case. Therein, on a private complaint filed under Sections 452 and 323, IPC the Judicial Magistrate, First Class had taken cognizance of the offence. He transferred the case for inquiry under Section 202 of the Code to the Second Class Magistrate who after examining the witnesses issued process to the accused. The High Court exercising the power under Section 482 dismissed the revision. But subsequently on an application filed under Section 482 of the Code, the High Court corrected it. The question was whether the High Court was right in reviewing its order. In that factual backdrop, this Court held that the High Court could not exercise inherent power for the second time. The ratio therein, as stated above, has no application to the facts in this case.14. In view of the above discussion, we hold that though the revision before the High Court under sub-section (1) of Section 397 is prohibited by sub- section (3) thereof, inherent power of the High Court is still available under Section 482 of the Code and as it is paramount power of continuous superintendence of the High Court under Section 483, the High Court is justified in interfering with the order leading to miscarriage of justice and in setting aside the order of the courts below. It remitted the case to the Magistrate for decision on merits after consideration of the evidence. We make it clear that we have not gone into the merits of the case. Since the High Court has left the matter to be considered by the Magistrate, it would be inappropriate at this stage to go into that question. We have only considered the issue of power and jurisdiction of the High Court in the context of the revisional power under Section 397(1) read with Section 397(3) and the inherent powers. We do not find any justification warranting interference in the appeal. 15. | 0[ds]14. In view of the above discussion, we hold that though the revision before the High Court under sub-section (1) of Section 397 is prohibited by sub- section (3) thereof, inherent power of the High Court is still available under Section 482 of the Code and as it is paramount power of continuous superintendence of the High Court under Section 483, the High Court is justified in interfering with the order leading to miscarriage of justice and in setting aside the order of the courts below. It remitted the case to the Magistrate for decision on merits after consideration of the evidence. We make it clear that we have not gone into the merits of the case. Since the High Court has left the matter to be considered by the Magistrate, it would be inappropriate at this stage to go into that question. We have only considered the issue of power and jurisdiction of the High Court in the context of the revisional power under Section 397(1) read with Section 397(3) and the inherent powers. We do not find any justification warranting interference in the appeal. | 0 | 3,904 | 211 | ### Instruction:
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will come into play when there is no provision for redressal of the grievance of the aggrieved party. In that case, when allegations of defamatory statements were published in the newspapers against the Law Minister, the State Government had decided to prosecute the appellant for offence under Section 500, IPC. After obtaining the sanction, on a complaint made by the public prosecutor, cognizance of the commission of the offence by the appellant was taken to take trial in the Sessions Court. Thereafter, the appellant filed an application to dismiss the complaint on the ground that Court had no jurisdiction to entertain the complaint. The Sessions Judge rejected all the contentions and framed the charges under Section 406. The Order of the Sessions Judge was challenged in revision in the High Court. On a preliminary objection raised on the maintainability, this Court held that power of the High Court to entertain the revision was not taken away under Section 397 or inherent power under Section 482 of the Code. 12. In V.C. Shukla v. State through C.B.I., 1980(2) SCR 380 at 393, a four-Judge Bench per majority had held that sub-section (3) of Section 397, however, does not limit at all the inherent powers of the High Court contained in Section 482. It merely curbs the revisional power given to the High Court or the Sessions Court under Section 397(1) of the Code. In Rajan Kumar Manchandas case (supra), the case related to release of a truck from attachment, obviously on filing of an interlocutory application. It was contended that there was prohibition on the revision by operation of Section 397(2) of the Code. In that context it was held that it was not revisable under Section 482 in exercise of inherent powers by operation of sub-section (3) of Section 397. On the facts in that case, it was held that by virtue of provisions contained in Section 397(3), the revision is not maintainable. In Dharam Pals case (supra) which related to the exercise of power to issue an order of attachment under Section 146 of the Code, it was held that the inherent power under Section 482 was prohibited. On the facts in that case it could be said that the learned Judges would be justified in holding that it was not revisable since it was prohibitory interim order of attachment covered under Section 397(2) of the Code but the observations of the learned Judges that the High Court had no power under Section 482 of the Code were not correct in view of the ratio of this Court in Madhu Limayes case (supra) as upheld in V.C. Shuklas case (supra) and also in view of our observations stated earlier. The ratio in Deetpis case (supra) is also not apposite to the facts in the present case. To the contrary, in that case an application for discharge of the accused was filed in the Court of Magistrate for an offence under Section 498A, IPC. The learned Magistrate and the Sessions Judge dismissed the petition. In the revision at the instance of the accused, on a wrong concession made by the counsel appearing for the State that the record did not contain allegations constituting the offence under Section 498-A, the High Court without applying its mind had discharged the accused. On appeal, this Court after going through the record noted that the concession made by the counsel was wrong. The record did contain the allegations to prove the charge under Section 498A, IPC. The High Court, since it failed to apply its mind, had committed an error of law in discharging the accused leading to the miscarriage of justice. In that context, this Court held that the order of the Sessions Judge operated as a bar to entertain the application under Section 482 of the Code. In view of the fact that the order of the High Court had led to the miscarriage of justice, this Court had set aside the order of the High Court and confirmed that of the Magistrate. 13. The ratio of Simrikhias case (supra) has no application to the facts in this case. Therein, on a private complaint filed under Sections 452 and 323, IPC the Judicial Magistrate, First Class had taken cognizance of the offence. He transferred the case for inquiry under Section 202 of the Code to the Second Class Magistrate who after examining the witnesses issued process to the accused. The High Court exercising the power under Section 482 dismissed the revision. But subsequently on an application filed under Section 482 of the Code, the High Court corrected it. The question was whether the High Court was right in reviewing its order. In that factual backdrop, this Court held that the High Court could not exercise inherent power for the second time. The ratio therein, as stated above, has no application to the facts in this case.14. In view of the above discussion, we hold that though the revision before the High Court under sub-section (1) of Section 397 is prohibited by sub- section (3) thereof, inherent power of the High Court is still available under Section 482 of the Code and as it is paramount power of continuous superintendence of the High Court under Section 483, the High Court is justified in interfering with the order leading to miscarriage of justice and in setting aside the order of the courts below. It remitted the case to the Magistrate for decision on merits after consideration of the evidence. We make it clear that we have not gone into the merits of the case. Since the High Court has left the matter to be considered by the Magistrate, it would be inappropriate at this stage to go into that question. We have only considered the issue of power and jurisdiction of the High Court in the context of the revisional power under Section 397(1) read with Section 397(3) and the inherent powers. We do not find any justification warranting interference in the appeal. 15.
### Response:
0
### Explanation:
14. In view of the above discussion, we hold that though the revision before the High Court under sub-section (1) of Section 397 is prohibited by sub- section (3) thereof, inherent power of the High Court is still available under Section 482 of the Code and as it is paramount power of continuous superintendence of the High Court under Section 483, the High Court is justified in interfering with the order leading to miscarriage of justice and in setting aside the order of the courts below. It remitted the case to the Magistrate for decision on merits after consideration of the evidence. We make it clear that we have not gone into the merits of the case. Since the High Court has left the matter to be considered by the Magistrate, it would be inappropriate at this stage to go into that question. We have only considered the issue of power and jurisdiction of the High Court in the context of the revisional power under Section 397(1) read with Section 397(3) and the inherent powers. We do not find any justification warranting interference in the appeal.
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SHRI GOWRAMMA AND ANR Vs. SHRI KALINGAPPA (D) REPRESENTED BY LRS. AND ORS | submitted that, in the facts and circumstances of the case, the High Court has committed an error in holding that the mortgage was extinguished. 3.1 It is vehemently submitted by the learned counsel appearing on behalf of the Appellants that, as provided under Section 60 of the TP Act, till Shera (endorsement) is written on the mortgage deed or an acknowledgement in writing that the mortgage has been extinguished and got registered, there is no redemption in the mortgage in the eyes of law. It is submitted that in the present case such is not the case and, therefore, both the Courts below rightly decreed the suit for redemption of the mortgage. It is submitted that, therefore, the High Court committed a grave error in setting aside the concurrent findings of both the Courts below. 3.2 It is further submitted by the learned counsel appearing on behalf of the Appellants that, as such, in the present case, though there was a decree in favour of Kalingappa in O.S. No. 48 of 1983 for specific performance of the agreement to sale dated 26.4.1982, however, thereafter, he did not execute the decree and, in fact, the Execution Petition was dismissed as not pressed and, therefore, the right of Kalingappa under the decree passed in O.S. No. 48 of 1983 was extinguished and, therefore, the right of the mortgagor to redeem the mortgage was saved/survived. It is submitted that, therefore, the plaintiffs – legal heirs of the mortgagor were entitled to redeem the mortgage and, therefore, they rightly filed the suit for redemption of the mortgage. 3.3 Making the above submissions, it is prayed to allow the present Appeal. 4. Learned counsel appearing on behalf of Respondent Nos. 1 to 4 – legal heirs of deceased Kalingappa has supported the impugned judgment and order passed by the High Court. 4.1 It is vehemently submitted by the learned counsel appearing on behalf of original Defendant No. 1 (since dead and now represented through his legal heirs) that considering Proviso to Section 60 of the TP Act and considering the fact that Kalingappa paid the mortgage amount of Rs.3,000/- to Sundarasetty – mortgagee assignee and Kalingappa was put in possession, the High Court has rightly observed and held that the mortgage was extinguished by the act of the parties. It is submitted that, therefore, the High Court has rightly dismissed the suit for redemption of the mortgage. Therefore, it is prayed to dismiss the present appeal. 5. Heard the learned counsel appearing on behalf of the respective parties at length. 5.1 At the outset, it is required to be noted that Sundarasetty was assigned the mortgage by the original mortgagee – Bangarasetty and, in fact, he was also put in possession of the land in question. It is true that Kalingappa – the mortgagee earlier filed a suit for specific performance and there was a decree in favour of Kalingappa – original Plaintiff in OS No. 48 of 1983. However, the Execution Petition filed by Kalingappa was dismissed as not pressed and, therefore, his rights under the judgment and decree passed in OS No. 48 of 1983 for specific performance of the agreement to sell dated 26.4.1982 was extinguished. Therefore, thereafter the question was only with respect to the mortgage. As observed hereinabove, in the year 1982, the original Mortgagee – Bangarasetty assigned the mortgage in favour of Sundarasetty and, therefore, Sundarasetty became the mortgagee assignee and, in fact, he was also put in possession of the suit land. It is required to be noted that the decree passed by the learned Court of Munsiff and Additional JMFC in OS No. 48 of 1983 was in two parts. The first part was for specific performance of the agreement to sell in favour of Kalingappa. The second part was in favour of the mortgagee/mortgagee assignee and the mortgagee/mortgagee assignee were directed to receive the mortgage amount and to return the mortgage deed with the Shera (endorsement) and to handover the suit property to the plaintiff – Kalingappa. It appears that, pursuant to the second part of the judgment and decree passed in OS No. 48 of 1983, Kalingappa paid Rs.3,000/- being the mortgage amount to Sundarasetty – mortgagee assignee and in turn Kalingappa was put in possession thereof. In view of the factual situation and considering the Proviso to Section 60 of the TP Act, the High Court has rightly observed and held that by the act of the parties, namely, by act of Sundarasetty receiving Rs.3,000/- being the mortgage amount from Kalingappa and putting him in possession, the mortgage is extinguished. The submission on behalf of the Appellants – original Plaintiffs that the mortgage can be said to have been extinguished only in a case where there is a Shera (endorsement) written on the mortgage deed or an acknowledgment in writing that the mortgage is extinguished and got registered, there is no redemption in the mortgage in the eyes of law is concerned, the aforesaid has no substance, considering Proviso to Section 60 of the TP Act. Considering Section 60 of the TP Act, mortgagor has a right to redeem the mortgage as provided under first part of Section 60 of the TP Act, however, provided the right conferred in favour of mortgagor has not been extinguished by act of the parties or by decree of the Court, as per Proviso to Section 60 of the TP Act. In the present case, by act of the parties, i.e. on Sundarasetty – mortgagee assignee receiving Rs.3,000/- being the mortgage amount from Kalingappa and by putting him in possession, as rightly observed by the High Court, the mortgage is extinguished and, therefore, the suit for redemption of the mortgage preferred by the Appellants herein – original plaintiffs was not maintainable. No error has been committed by the High Court in dismissing the suit for redemption of the mortgage preferred by the Appellants herein-original plaintiffs. We are in complete agreement with the view taken by the High Court. | 0[ds]5.1 At the outset, it is required to be noted that Sundarasetty was assigned the mortgage by the original mortgagee – Bangarasetty and, in fact, he was also put in possession of the land in question. It is true that Kalingappa – the mortgagee earlier filed a suit for specific performance and there was a decree in favour of Kalingappa – original Plaintiff in OS No. 48 of 1983. However, the Execution Petition filed by Kalingappa was dismissed as not pressed and, therefore, his rights under the judgment and decree passed in OS No. 48 of 1983 for specific performance of the agreement to sell dated 26.4.1982 was extinguished. Therefore, thereafter the question was only with respect to the mortgage. As observed hereinabove, in the year 1982, the original Mortgagee – Bangarasetty assigned the mortgage in favour of Sundarasetty and, therefore, Sundarasetty became the mortgagee assignee and, in fact, he was also put in possession of the suit land. It is required to be noted that the decree passed by the learned Court of Munsiff and Additional JMFC in OS No. 48 of 1983 was in two parts. The first part was for specific performance of the agreement to sell in favour of Kalingappa. The second part was in favour of the mortgagee/mortgagee assignee and the mortgagee/mortgagee assignee were directed to receive the mortgage amount and to return the mortgage deed with the Shera (endorsement) and to handover the suit property to the plaintiff – Kalingappa. It appears that, pursuant to the second part of the judgment and decree passed in OS No. 48 of 1983, Kalingappa paid Rs.3,000/- being the mortgage amount to Sundarasetty – mortgagee assignee and in turn Kalingappa was put in possession thereof. In view of the factual situation and considering the Proviso to Section 60 of the TP Act, the High Court has rightly observed and held that by the act of the parties, namely, by act of Sundarasetty receiving Rs.3,000/- being the mortgage amount from Kalingappa and putting him in possession, the mortgage is extinguished. The submission on behalf of the Appellants – original Plaintiffs that the mortgage can be said to have been extinguished only in a case where there is a Shera (endorsement) written on the mortgage deed or an acknowledgment in writing that the mortgage is extinguished and got registered, there is no redemption in the mortgage in the eyes of law is concerned, the aforesaid has no substance, considering Proviso to Section 60 of the TP Act. Considering Section 60 of the TP Act, mortgagor has a right to redeem the mortgage as provided under first part of Section 60 of the TP Act, however, provided the right conferred in favour of mortgagor has not been extinguished by act of the parties or by decree of the Court, as per Proviso to Section 60 of the TP Act. In the present case, by act of the parties, i.e. on Sundarasetty – mortgagee assignee receiving Rs.3,000/- being the mortgage amount from Kalingappa and by putting him in possession, as rightly observed by the High Court, the mortgage is extinguished and, therefore, the suit for redemption of the mortgage preferred by the Appellants herein – original plaintiffs was not maintainable. No error has been committed by the High Court in dismissing the suit for redemption of the mortgage preferred by the Appellants herein-original plaintiffs. We are in complete agreement with the view taken by the High Court. | 0 | 1,941 | 635 | ### Instruction:
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submitted that, in the facts and circumstances of the case, the High Court has committed an error in holding that the mortgage was extinguished. 3.1 It is vehemently submitted by the learned counsel appearing on behalf of the Appellants that, as provided under Section 60 of the TP Act, till Shera (endorsement) is written on the mortgage deed or an acknowledgement in writing that the mortgage has been extinguished and got registered, there is no redemption in the mortgage in the eyes of law. It is submitted that in the present case such is not the case and, therefore, both the Courts below rightly decreed the suit for redemption of the mortgage. It is submitted that, therefore, the High Court committed a grave error in setting aside the concurrent findings of both the Courts below. 3.2 It is further submitted by the learned counsel appearing on behalf of the Appellants that, as such, in the present case, though there was a decree in favour of Kalingappa in O.S. No. 48 of 1983 for specific performance of the agreement to sale dated 26.4.1982, however, thereafter, he did not execute the decree and, in fact, the Execution Petition was dismissed as not pressed and, therefore, the right of Kalingappa under the decree passed in O.S. No. 48 of 1983 was extinguished and, therefore, the right of the mortgagor to redeem the mortgage was saved/survived. It is submitted that, therefore, the plaintiffs – legal heirs of the mortgagor were entitled to redeem the mortgage and, therefore, they rightly filed the suit for redemption of the mortgage. 3.3 Making the above submissions, it is prayed to allow the present Appeal. 4. Learned counsel appearing on behalf of Respondent Nos. 1 to 4 – legal heirs of deceased Kalingappa has supported the impugned judgment and order passed by the High Court. 4.1 It is vehemently submitted by the learned counsel appearing on behalf of original Defendant No. 1 (since dead and now represented through his legal heirs) that considering Proviso to Section 60 of the TP Act and considering the fact that Kalingappa paid the mortgage amount of Rs.3,000/- to Sundarasetty – mortgagee assignee and Kalingappa was put in possession, the High Court has rightly observed and held that the mortgage was extinguished by the act of the parties. It is submitted that, therefore, the High Court has rightly dismissed the suit for redemption of the mortgage. Therefore, it is prayed to dismiss the present appeal. 5. Heard the learned counsel appearing on behalf of the respective parties at length. 5.1 At the outset, it is required to be noted that Sundarasetty was assigned the mortgage by the original mortgagee – Bangarasetty and, in fact, he was also put in possession of the land in question. It is true that Kalingappa – the mortgagee earlier filed a suit for specific performance and there was a decree in favour of Kalingappa – original Plaintiff in OS No. 48 of 1983. However, the Execution Petition filed by Kalingappa was dismissed as not pressed and, therefore, his rights under the judgment and decree passed in OS No. 48 of 1983 for specific performance of the agreement to sell dated 26.4.1982 was extinguished. Therefore, thereafter the question was only with respect to the mortgage. As observed hereinabove, in the year 1982, the original Mortgagee – Bangarasetty assigned the mortgage in favour of Sundarasetty and, therefore, Sundarasetty became the mortgagee assignee and, in fact, he was also put in possession of the suit land. It is required to be noted that the decree passed by the learned Court of Munsiff and Additional JMFC in OS No. 48 of 1983 was in two parts. The first part was for specific performance of the agreement to sell in favour of Kalingappa. The second part was in favour of the mortgagee/mortgagee assignee and the mortgagee/mortgagee assignee were directed to receive the mortgage amount and to return the mortgage deed with the Shera (endorsement) and to handover the suit property to the plaintiff – Kalingappa. It appears that, pursuant to the second part of the judgment and decree passed in OS No. 48 of 1983, Kalingappa paid Rs.3,000/- being the mortgage amount to Sundarasetty – mortgagee assignee and in turn Kalingappa was put in possession thereof. In view of the factual situation and considering the Proviso to Section 60 of the TP Act, the High Court has rightly observed and held that by the act of the parties, namely, by act of Sundarasetty receiving Rs.3,000/- being the mortgage amount from Kalingappa and putting him in possession, the mortgage is extinguished. The submission on behalf of the Appellants – original Plaintiffs that the mortgage can be said to have been extinguished only in a case where there is a Shera (endorsement) written on the mortgage deed or an acknowledgment in writing that the mortgage is extinguished and got registered, there is no redemption in the mortgage in the eyes of law is concerned, the aforesaid has no substance, considering Proviso to Section 60 of the TP Act. Considering Section 60 of the TP Act, mortgagor has a right to redeem the mortgage as provided under first part of Section 60 of the TP Act, however, provided the right conferred in favour of mortgagor has not been extinguished by act of the parties or by decree of the Court, as per Proviso to Section 60 of the TP Act. In the present case, by act of the parties, i.e. on Sundarasetty – mortgagee assignee receiving Rs.3,000/- being the mortgage amount from Kalingappa and by putting him in possession, as rightly observed by the High Court, the mortgage is extinguished and, therefore, the suit for redemption of the mortgage preferred by the Appellants herein – original plaintiffs was not maintainable. No error has been committed by the High Court in dismissing the suit for redemption of the mortgage preferred by the Appellants herein-original plaintiffs. We are in complete agreement with the view taken by the High Court.
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### Explanation:
5.1 At the outset, it is required to be noted that Sundarasetty was assigned the mortgage by the original mortgagee – Bangarasetty and, in fact, he was also put in possession of the land in question. It is true that Kalingappa – the mortgagee earlier filed a suit for specific performance and there was a decree in favour of Kalingappa – original Plaintiff in OS No. 48 of 1983. However, the Execution Petition filed by Kalingappa was dismissed as not pressed and, therefore, his rights under the judgment and decree passed in OS No. 48 of 1983 for specific performance of the agreement to sell dated 26.4.1982 was extinguished. Therefore, thereafter the question was only with respect to the mortgage. As observed hereinabove, in the year 1982, the original Mortgagee – Bangarasetty assigned the mortgage in favour of Sundarasetty and, therefore, Sundarasetty became the mortgagee assignee and, in fact, he was also put in possession of the suit land. It is required to be noted that the decree passed by the learned Court of Munsiff and Additional JMFC in OS No. 48 of 1983 was in two parts. The first part was for specific performance of the agreement to sell in favour of Kalingappa. The second part was in favour of the mortgagee/mortgagee assignee and the mortgagee/mortgagee assignee were directed to receive the mortgage amount and to return the mortgage deed with the Shera (endorsement) and to handover the suit property to the plaintiff – Kalingappa. It appears that, pursuant to the second part of the judgment and decree passed in OS No. 48 of 1983, Kalingappa paid Rs.3,000/- being the mortgage amount to Sundarasetty – mortgagee assignee and in turn Kalingappa was put in possession thereof. In view of the factual situation and considering the Proviso to Section 60 of the TP Act, the High Court has rightly observed and held that by the act of the parties, namely, by act of Sundarasetty receiving Rs.3,000/- being the mortgage amount from Kalingappa and putting him in possession, the mortgage is extinguished. The submission on behalf of the Appellants – original Plaintiffs that the mortgage can be said to have been extinguished only in a case where there is a Shera (endorsement) written on the mortgage deed or an acknowledgment in writing that the mortgage is extinguished and got registered, there is no redemption in the mortgage in the eyes of law is concerned, the aforesaid has no substance, considering Proviso to Section 60 of the TP Act. Considering Section 60 of the TP Act, mortgagor has a right to redeem the mortgage as provided under first part of Section 60 of the TP Act, however, provided the right conferred in favour of mortgagor has not been extinguished by act of the parties or by decree of the Court, as per Proviso to Section 60 of the TP Act. In the present case, by act of the parties, i.e. on Sundarasetty – mortgagee assignee receiving Rs.3,000/- being the mortgage amount from Kalingappa and by putting him in possession, as rightly observed by the High Court, the mortgage is extinguished and, therefore, the suit for redemption of the mortgage preferred by the Appellants herein – original plaintiffs was not maintainable. No error has been committed by the High Court in dismissing the suit for redemption of the mortgage preferred by the Appellants herein-original plaintiffs. We are in complete agreement with the view taken by the High Court.
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Deewan Singh Vs. Rajendra Pd. Ardevi | appointed under Section 7 of the Act would be an agency of the State, the same would lead to an absurdity or anomaly. It is a well-known principle of law that where literal interpretation shall give rise to an anomaly or absurdity, the same should be avoided. [See Ashok Lanka v. Rishi Dixit, (2005) 5 SCC 598 and M.P. Gopalakrishnan Nair v. State of Kerala,(2005) 11 SCC 45 ] 43. It is also well-settled that the entire statute must be first read as a whole then section by section, clause by clause, phrase by phrase and word by word. [See Reserve Bank of India v. Peerless General Finance and Investment Co. Ltd. and Others, (1987) 1 SCC 424 ] The relevant provisions of the statute must, thus, be read harmoniously. [See Bombay Dyeing (supra) and Secretary, Department of Excise & Commercial Taxes and Others v. Sun Bright Marketing (P) Ltd., Chhattisgarh and Another [(2004) 3 SCC 185] . It would, therefore, not be possible to give literal interpretation to Section 77 of the Act. 44. Different provisions contained in different Chapters of the Act must, as far as possible, receive harmonious construction. With a view to give harmonious construction, the effect of an exemption clause must be borne in mind. It has not been denied or disputed that keeping in view the different clauses contained in Section 52 of the Act, public trusts which had vested in the State would come within the purview of the Chapter X. Once it is held that all those trusts would also go out of the statute, the provisions of Chapter X would become otiose in a large number of cases. Application of such principle of interpretation is not permissible. 45. It is, therefore, incumbent for us to take recourse to harmonious construction. If principle of harmonious construction is applied, in a case of this nature, particularly, when the State itself has acted upon the directions of the court and had issued notifications in terms of Section 52 of the Act, the State cannot now be permitted to contend that Chapter X shall not apply. It could not approbate and reprobate at the same time. 46. There is another aspect of the matter which cannot also be lost sight of. The State not only in the earlier round of litigation but also before the High Court had taken a categorical stand that it had all along been ready and willing to act in terms of the provisions of Chapter X of the Act and appoint a Committee; it cannot take a different stand now. 47. In Karamshi Jethabhai Somayya v. State of Bombay (now Maharashtra) [AIR 1964 SC 1714 ], this Court stated the law, thus: Apart from the fact that the appellant asked for the production of all the relevant documents, the Government, being the defendant in this case, should have produced the documents relevant to the question raised. While it is the duty of a private party to a litigation to place all the relevant matters before the Court, a higher responsibility rests upon the Government not to withhold such documents from the court... 48. In Cooke v. Rickman [(1911) 2 KB 1125] , it was held that the rule of estoppel could not be restricted to a matter in issue, stating : The rule laid down in Hawlett v. Tarte (10 C.B. (N.S.) 813 - was that if the defendant in a second action attempts to put on the, record a plea which is inconsistent with any traversable allegation in a former action between the same parties there is an estoppel 49. [See also Humphries v. Humphries 1910 (2) KB 531] 50. In Jai Narain Parasrampura (Dead) and Others v. Pushpa Devi Saraf and Others [(2006) 7 SCC 756] , this Court held : While applying the procedural law like principle of estoppel or acquiescence, the court would be concerned with the conduct of a party for determination as to whether he can be permitted to take a different stand in a subsequent proceeding, unless there exists a statutory interdict. 51. It was further held : The doctrine of estoppel by acquiescence was not restricted to cases where the representor was aware both of what his strict rights were and that the representee was acting on the belief that those rights would not be enforced against him. Instead, the court was required to ascertain whether in the particular circumstances, it would be unconscionable for a party to be permitted to deny that which, knowingly or unknowingly, he had allowed or encouraged another to assume to his detriment. Accordingly, the principle would apply if at the time the expectation was encouraged. 52. The stand of the State in the earlier round of ligitation was that the temple in question was a Hindu temple. This Court categorically opined that it is a Jain temple. The principles of res judicata, thus, would come into play. The State, therefore, cannot still contend that the temple in question is a Hindu temple. Before us, the Respondent Nos. 1 to 4 in Civil Appeal No. 4086-4089 of 2002 have raised a contention that it is a Hindu temple but we cannot permit the State or the said respondents to raise such a contention before us. We are bound by the earlier judgment. The issue cannot be permitted to be reopened nor we have any jurisdiction in these matters to do so. 53. We must, however, observe that the question as to whether the temple in question is Swetambers or Digambers does not fall for our consideration. Both parties have staked their own claims. It is for the State to act in terms of the statute. While doing so, it indisputably would have to give effect to the directions issued by the High Court. 54. While implementing the said directions, the incidental or ancillary questions which may arise for consideration before the State Government must also be determined in accordance with law. 55. For the reasons aforementioned, we | 1[ds]The State Government, in our opinion, does not have any discretionary jurisdiction to exercise in the matter of appointment of a committee of management. It is imperative in nature. The expression shall used in Sub-sections (1) and (2) of Section 53 of the Act indicates that the natural and ordinary meaning of the words used by the legislature require that a committee of management must be constituted. The expression shall ordinarily implies the imperative character of the lawEven if the expression shall is read as may although there does not exist any reason therefor, the statute provides for a power coupled with a duty. It is a well-settled principle of interpretation of statutes that where discretion is conferred upon a public authority coupled with discretion, the word may which denotes discretion, should be construed to mean a command. | 1 | 6,725 | 156 | ### Instruction:
Ascertain if the court will uphold (1) or dismiss (0) the appeal in the case proceeding, and then clarify this prediction by discussing critical sentences from the text.
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appointed under Section 7 of the Act would be an agency of the State, the same would lead to an absurdity or anomaly. It is a well-known principle of law that where literal interpretation shall give rise to an anomaly or absurdity, the same should be avoided. [See Ashok Lanka v. Rishi Dixit, (2005) 5 SCC 598 and M.P. Gopalakrishnan Nair v. State of Kerala,(2005) 11 SCC 45 ] 43. It is also well-settled that the entire statute must be first read as a whole then section by section, clause by clause, phrase by phrase and word by word. [See Reserve Bank of India v. Peerless General Finance and Investment Co. Ltd. and Others, (1987) 1 SCC 424 ] The relevant provisions of the statute must, thus, be read harmoniously. [See Bombay Dyeing (supra) and Secretary, Department of Excise & Commercial Taxes and Others v. Sun Bright Marketing (P) Ltd., Chhattisgarh and Another [(2004) 3 SCC 185] . It would, therefore, not be possible to give literal interpretation to Section 77 of the Act. 44. Different provisions contained in different Chapters of the Act must, as far as possible, receive harmonious construction. With a view to give harmonious construction, the effect of an exemption clause must be borne in mind. It has not been denied or disputed that keeping in view the different clauses contained in Section 52 of the Act, public trusts which had vested in the State would come within the purview of the Chapter X. Once it is held that all those trusts would also go out of the statute, the provisions of Chapter X would become otiose in a large number of cases. Application of such principle of interpretation is not permissible. 45. It is, therefore, incumbent for us to take recourse to harmonious construction. If principle of harmonious construction is applied, in a case of this nature, particularly, when the State itself has acted upon the directions of the court and had issued notifications in terms of Section 52 of the Act, the State cannot now be permitted to contend that Chapter X shall not apply. It could not approbate and reprobate at the same time. 46. There is another aspect of the matter which cannot also be lost sight of. The State not only in the earlier round of litigation but also before the High Court had taken a categorical stand that it had all along been ready and willing to act in terms of the provisions of Chapter X of the Act and appoint a Committee; it cannot take a different stand now. 47. In Karamshi Jethabhai Somayya v. State of Bombay (now Maharashtra) [AIR 1964 SC 1714 ], this Court stated the law, thus: Apart from the fact that the appellant asked for the production of all the relevant documents, the Government, being the defendant in this case, should have produced the documents relevant to the question raised. While it is the duty of a private party to a litigation to place all the relevant matters before the Court, a higher responsibility rests upon the Government not to withhold such documents from the court... 48. In Cooke v. Rickman [(1911) 2 KB 1125] , it was held that the rule of estoppel could not be restricted to a matter in issue, stating : The rule laid down in Hawlett v. Tarte (10 C.B. (N.S.) 813 - was that if the defendant in a second action attempts to put on the, record a plea which is inconsistent with any traversable allegation in a former action between the same parties there is an estoppel 49. [See also Humphries v. Humphries 1910 (2) KB 531] 50. In Jai Narain Parasrampura (Dead) and Others v. Pushpa Devi Saraf and Others [(2006) 7 SCC 756] , this Court held : While applying the procedural law like principle of estoppel or acquiescence, the court would be concerned with the conduct of a party for determination as to whether he can be permitted to take a different stand in a subsequent proceeding, unless there exists a statutory interdict. 51. It was further held : The doctrine of estoppel by acquiescence was not restricted to cases where the representor was aware both of what his strict rights were and that the representee was acting on the belief that those rights would not be enforced against him. Instead, the court was required to ascertain whether in the particular circumstances, it would be unconscionable for a party to be permitted to deny that which, knowingly or unknowingly, he had allowed or encouraged another to assume to his detriment. Accordingly, the principle would apply if at the time the expectation was encouraged. 52. The stand of the State in the earlier round of ligitation was that the temple in question was a Hindu temple. This Court categorically opined that it is a Jain temple. The principles of res judicata, thus, would come into play. The State, therefore, cannot still contend that the temple in question is a Hindu temple. Before us, the Respondent Nos. 1 to 4 in Civil Appeal No. 4086-4089 of 2002 have raised a contention that it is a Hindu temple but we cannot permit the State or the said respondents to raise such a contention before us. We are bound by the earlier judgment. The issue cannot be permitted to be reopened nor we have any jurisdiction in these matters to do so. 53. We must, however, observe that the question as to whether the temple in question is Swetambers or Digambers does not fall for our consideration. Both parties have staked their own claims. It is for the State to act in terms of the statute. While doing so, it indisputably would have to give effect to the directions issued by the High Court. 54. While implementing the said directions, the incidental or ancillary questions which may arise for consideration before the State Government must also be determined in accordance with law. 55. For the reasons aforementioned, we
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1
### Explanation:
The State Government, in our opinion, does not have any discretionary jurisdiction to exercise in the matter of appointment of a committee of management. It is imperative in nature. The expression shall used in Sub-sections (1) and (2) of Section 53 of the Act indicates that the natural and ordinary meaning of the words used by the legislature require that a committee of management must be constituted. The expression shall ordinarily implies the imperative character of the lawEven if the expression shall is read as may although there does not exist any reason therefor, the statute provides for a power coupled with a duty. It is a well-settled principle of interpretation of statutes that where discretion is conferred upon a public authority coupled with discretion, the word may which denotes discretion, should be construed to mean a command.
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Ram Gopal Chaturvedi Vs. State Of Madhya Pradesh | he admonished the appellant for this disreputable conduct. On his return to Jabalpur on February 23, 1964 the Chief Justice dictated the following note:-"During my recent visit to Gwalior, I probed into the matter of Shri R. G. Chaturvedi, Special Magistrate (Motor Vehicles) Gwalior, giving shelter to a girl named Kumari Laxmi Surve, the daughter of a Chowkidar employed in the J. C. Mills Gwalior; the enquiry made by me revealed that Shree Chaturvedi has been associating with this girl for over a year and his relations with her are not at all innocent. He is sheltering and supporting Miss Surve against the wishes of her father and other members of her family. This is evident from the fact that on 14th December, 1963, when the girl was at the residence of Shri Chaturvedi and when her yonger brother came to take her back, his house was stormed by a mob of 300 to 400 persons. A report of this incident was also recorded in the Roznamcha-Am of Lashkar Kotwali. The statement published by Miss Surve in some newspapers published from Gwalior explaining her action and her relations with her parents is significant. In that statement Miss Surve gave her address as C/o. Shri Chaturvedi. That the statement is one inspired by Shri Chaturvedi is obvious enough. Shri Chaturvedi is still maintaining the girl. Shri Chaturvedi did not enjoy good reputation at Morena and Kolaras where he was posted before his posting at Gwalior. Shri Bajpai, District Judge, Gwalior also informed me that Shri Chaturvedi was not honest and that in collaboration with the Traffic Inspector he has taken money from accused persons in many cases under the Motor Vehicles Act".No charge-sheet was served on the appellant nor was any departmental inquiry held against him. On March 10, 1964 the Madhya Pradesh High Court passed a resolution that the State Government should terminate the appellants services. Having regard to this resolution the State Government passed the impugned order dated March 25, 1964. On the face of it, the order did not cast stigma on the appellants character or integrity nor did it visit him with any evil consequences. It was not passed by way of punishment and the provisions of Article 311 were not attracted.9. It was immaterial that the order was preceded by an informal inquiry into the appellants conduct with a view to ascertain whether he should be retained in service. As was pointed out in the State of Punjab v. Sukh Raj Bahadur, AIR 1968 SC 1089 at p. 1095:"An order of termination of service in unexceptionable form preceded by an enquiry launched by the superior authorities only to ascertain whether the public servant should be retained in service, does not attract the operation of Article 311 of the Constitution".10. It was next argued that the impugned order was in violation of the principles of natural justice and in this connection reliance was placed on the decision of this Court in State of Orissa v. Dr. Miss Binapani Dei, (1967) 2 SCR 625 = (AIR 1967 SC 1269 ) and Ridge v. Baldwin, 1964 AC 40. In Binapanis Case, (1967) 2 SCR 625 = (AIR 1967 SC 1269 ) (supra) the appellant was an assistant surgeon in the Orissa medical service. The State Government accepted the date of birth given by her on joining the service. Later the government refixed the date of her birth on ex parte inquiry and passed an order compulsorily retiring her. The Court held that its order was invalid and was liable to be quashed. The appellant as the holder of an office in the medical service had the right to continue in service. According to the rules made under Art. 309 she could not be removed from the office before superannuation except for good and sufficient reasons. The ex parte order was in derogation of her vested rights and could not be passed without giving her an opportunity of being heard. In the present case, the impugned order did not deprive the appellant of any vested right. The appellant was a temporary government servant and had no right to hold the office. The State Government had the right to terminate his services under Rule 12 without issuing any notice to the appellant to show cause against the proposed action. In 1964 AC 40 (supra) the House of Lords by a majority held that the order of dismissal of a chief constable on the ground of neglect of duty without informing him of the charge made against him and giving him an opportunity of being heard was in contravention of the principles of natural justice and was liable to be quashed. Section 191 of the Municipal Corporations Act, 1882 provided that the watch committee might at any time suspend and dismiss any borough constable whom they thought negligent in the discharge of his duty or otherwise unfit for the same. The chief constable had the right to hold his office and before depriving him of this right the watch committee was required to conform to the principles of natural justice. The order of dismissal visited him with the loss of office and involved an element of punishment for the offences committed. In the present case, the impugned order did not involve any element of punishment nor did it deprive the appellant of any vested right to any office.11. It was next argued that the State Government blindly followed the recommendations of the High Court. We find no merit in this argument. The State Government properly followed those recommendations.The High Court is vested with the control over the subordinate judiciary, see State of West Bengal v. N. N. Bagchi, (1966) 1 SCR 771 = (AIR 1966 SC 447 ). If the High Court found that the appellant was not a fit person to be retained in service, it could properly ask the government to terminate his services.Following the advice tendered by the High Court, the government rightly terminated his services under Rule 12. | 0[ds]It was not raised in the High Court, and we indicated in the course of arguments that the appellant could not be allowed to raise it in this Court for the firstpoint that the High Court had recommended the appellants confirmation was not raised in the High Court and cannot be allowed to be raised in this Court for the first time. The apellants services were subject to the relevant rules and could be terminated on one months notice under R.12. It is immaterial that the advertisement did not specifically mention that his services could be sois no merit in this contention. The case of State of U.P. v. M. L. Srivastava, 1958 SCR 533 = (AIR 1957 SC 912 ) decided that the provisions of Article 320 (3) (c) were not mandatory and did not confer any rights on the public servant and that the absence of consultation with the State Public Service Commission did not afford him a cause ofappears that there were complaints that the appellant was associating with a young girl named Miss Laxmi Surve against the wishes of her father and other members of her family. The Chief Justice of Madhya Pradesh made inquiries into the matter and on February 19, 1954 he admonished the appellant for this disreputablecharge-sheet was served on the appellant nor was any departmental inquiry held against him. On March 10, 1964 the Madhya Pradesh High Court passed a resolution that the State Government should terminate the appellants services. Having regard to this resolution the State Government passed the impugned order dated March 25, 1964. On the face of it, the order did not cast stigma on the appellants character or integrity nor did it visit him with any evil consequences. It was not passed by way of punishment and the provisions of Article 311 were not attracted.9. It was immaterial that the order was preceded by an informal inquiry into the appellants conduct with a view to ascertain whether he should be retained in service. As was pointed out in the State of Punjab v. Sukh Raj Bahadur, AIR 1968 SC 1089 at p.the present case, the impugned order did not involve any element of punishment nor did it deprive the appellant of any vested right to anyState Government properly followed those recommendations.The High Court is vested with the control over the subordinate judiciary, see State of West Bengal v. N. N. Bagchi, (1966) 1 SCR 771 = (AIR 1966 SC 447 ). If the High Court found that the appellant was not a fit person to be retained in service, it could properly ask the government to terminate his services.Following the advice tendered by the High Court, the government rightly terminated his services under Rulecontention raises mixed questions of law andIt was not raised in the High Court, and we indicated in the course of arguments that the appellant could not be allowed to raise it in this Court for the firstis no merit in this contention. Rule 12 applies to all temporary government servants who are not inservice. All such government servants are treated alike. The argument that Rule 12 confers an arbitrary and unguided discretion is devoid of any merit. The services of a temporary government servant may be terminated on one months notice whenever the government thinks it necessary or expedient to do so for administrative reasons. It is impossible to defineall the circumstances in which the discretion can be exercised. The discretion was necessarily left to the government. | 0 | 2,063 | 628 | ### 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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he admonished the appellant for this disreputable conduct. On his return to Jabalpur on February 23, 1964 the Chief Justice dictated the following note:-"During my recent visit to Gwalior, I probed into the matter of Shri R. G. Chaturvedi, Special Magistrate (Motor Vehicles) Gwalior, giving shelter to a girl named Kumari Laxmi Surve, the daughter of a Chowkidar employed in the J. C. Mills Gwalior; the enquiry made by me revealed that Shree Chaturvedi has been associating with this girl for over a year and his relations with her are not at all innocent. He is sheltering and supporting Miss Surve against the wishes of her father and other members of her family. This is evident from the fact that on 14th December, 1963, when the girl was at the residence of Shri Chaturvedi and when her yonger brother came to take her back, his house was stormed by a mob of 300 to 400 persons. A report of this incident was also recorded in the Roznamcha-Am of Lashkar Kotwali. The statement published by Miss Surve in some newspapers published from Gwalior explaining her action and her relations with her parents is significant. In that statement Miss Surve gave her address as C/o. Shri Chaturvedi. That the statement is one inspired by Shri Chaturvedi is obvious enough. Shri Chaturvedi is still maintaining the girl. Shri Chaturvedi did not enjoy good reputation at Morena and Kolaras where he was posted before his posting at Gwalior. Shri Bajpai, District Judge, Gwalior also informed me that Shri Chaturvedi was not honest and that in collaboration with the Traffic Inspector he has taken money from accused persons in many cases under the Motor Vehicles Act".No charge-sheet was served on the appellant nor was any departmental inquiry held against him. On March 10, 1964 the Madhya Pradesh High Court passed a resolution that the State Government should terminate the appellants services. Having regard to this resolution the State Government passed the impugned order dated March 25, 1964. On the face of it, the order did not cast stigma on the appellants character or integrity nor did it visit him with any evil consequences. It was not passed by way of punishment and the provisions of Article 311 were not attracted.9. It was immaterial that the order was preceded by an informal inquiry into the appellants conduct with a view to ascertain whether he should be retained in service. As was pointed out in the State of Punjab v. Sukh Raj Bahadur, AIR 1968 SC 1089 at p. 1095:"An order of termination of service in unexceptionable form preceded by an enquiry launched by the superior authorities only to ascertain whether the public servant should be retained in service, does not attract the operation of Article 311 of the Constitution".10. It was next argued that the impugned order was in violation of the principles of natural justice and in this connection reliance was placed on the decision of this Court in State of Orissa v. Dr. Miss Binapani Dei, (1967) 2 SCR 625 = (AIR 1967 SC 1269 ) and Ridge v. Baldwin, 1964 AC 40. In Binapanis Case, (1967) 2 SCR 625 = (AIR 1967 SC 1269 ) (supra) the appellant was an assistant surgeon in the Orissa medical service. The State Government accepted the date of birth given by her on joining the service. Later the government refixed the date of her birth on ex parte inquiry and passed an order compulsorily retiring her. The Court held that its order was invalid and was liable to be quashed. The appellant as the holder of an office in the medical service had the right to continue in service. According to the rules made under Art. 309 she could not be removed from the office before superannuation except for good and sufficient reasons. The ex parte order was in derogation of her vested rights and could not be passed without giving her an opportunity of being heard. In the present case, the impugned order did not deprive the appellant of any vested right. The appellant was a temporary government servant and had no right to hold the office. The State Government had the right to terminate his services under Rule 12 without issuing any notice to the appellant to show cause against the proposed action. In 1964 AC 40 (supra) the House of Lords by a majority held that the order of dismissal of a chief constable on the ground of neglect of duty without informing him of the charge made against him and giving him an opportunity of being heard was in contravention of the principles of natural justice and was liable to be quashed. Section 191 of the Municipal Corporations Act, 1882 provided that the watch committee might at any time suspend and dismiss any borough constable whom they thought negligent in the discharge of his duty or otherwise unfit for the same. The chief constable had the right to hold his office and before depriving him of this right the watch committee was required to conform to the principles of natural justice. The order of dismissal visited him with the loss of office and involved an element of punishment for the offences committed. In the present case, the impugned order did not involve any element of punishment nor did it deprive the appellant of any vested right to any office.11. It was next argued that the State Government blindly followed the recommendations of the High Court. We find no merit in this argument. The State Government properly followed those recommendations.The High Court is vested with the control over the subordinate judiciary, see State of West Bengal v. N. N. Bagchi, (1966) 1 SCR 771 = (AIR 1966 SC 447 ). If the High Court found that the appellant was not a fit person to be retained in service, it could properly ask the government to terminate his services.Following the advice tendered by the High Court, the government rightly terminated his services under Rule 12.
### Response:
0
### Explanation:
It was not raised in the High Court, and we indicated in the course of arguments that the appellant could not be allowed to raise it in this Court for the firstpoint that the High Court had recommended the appellants confirmation was not raised in the High Court and cannot be allowed to be raised in this Court for the first time. The apellants services were subject to the relevant rules and could be terminated on one months notice under R.12. It is immaterial that the advertisement did not specifically mention that his services could be sois no merit in this contention. The case of State of U.P. v. M. L. Srivastava, 1958 SCR 533 = (AIR 1957 SC 912 ) decided that the provisions of Article 320 (3) (c) were not mandatory and did not confer any rights on the public servant and that the absence of consultation with the State Public Service Commission did not afford him a cause ofappears that there were complaints that the appellant was associating with a young girl named Miss Laxmi Surve against the wishes of her father and other members of her family. The Chief Justice of Madhya Pradesh made inquiries into the matter and on February 19, 1954 he admonished the appellant for this disreputablecharge-sheet was served on the appellant nor was any departmental inquiry held against him. On March 10, 1964 the Madhya Pradesh High Court passed a resolution that the State Government should terminate the appellants services. Having regard to this resolution the State Government passed the impugned order dated March 25, 1964. On the face of it, the order did not cast stigma on the appellants character or integrity nor did it visit him with any evil consequences. It was not passed by way of punishment and the provisions of Article 311 were not attracted.9. It was immaterial that the order was preceded by an informal inquiry into the appellants conduct with a view to ascertain whether he should be retained in service. As was pointed out in the State of Punjab v. Sukh Raj Bahadur, AIR 1968 SC 1089 at p.the present case, the impugned order did not involve any element of punishment nor did it deprive the appellant of any vested right to anyState Government properly followed those recommendations.The High Court is vested with the control over the subordinate judiciary, see State of West Bengal v. N. N. Bagchi, (1966) 1 SCR 771 = (AIR 1966 SC 447 ). If the High Court found that the appellant was not a fit person to be retained in service, it could properly ask the government to terminate his services.Following the advice tendered by the High Court, the government rightly terminated his services under Rulecontention raises mixed questions of law andIt was not raised in the High Court, and we indicated in the course of arguments that the appellant could not be allowed to raise it in this Court for the firstis no merit in this contention. Rule 12 applies to all temporary government servants who are not inservice. All such government servants are treated alike. The argument that Rule 12 confers an arbitrary and unguided discretion is devoid of any merit. The services of a temporary government servant may be terminated on one months notice whenever the government thinks it necessary or expedient to do so for administrative reasons. It is impossible to defineall the circumstances in which the discretion can be exercised. The discretion was necessarily left to the government.
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Gandhi Faizeam College Shahajahanpur Vs. University Of Agra And Another | Notwithstanding anything contained in sub-section (6), decisions of the managing council shall be taken at meetings on the basis of simple majority of the members present and voting, S.63-Power to regulate the management of private colleges:- (4) If the governing body or managing council, as the case may be,disapproves any decision taken by the University in connection with the management of the private college the matter shall be referred by the governing body or managing council, as the case may be, to the Government, within one month of the date of receipt of the report under subsection (3) who shall there upon pass such order there on as they think fit and communicate the same to the governing body or managing council and also to the University. (6) The manager appointed under sub-section (1) of section 50 shall be bound to give effect to the decisions of the University and if at any time, it appears to the University that the manager is not carrying out its decisions, it may, for reasons to be recorded in writing and after giving the manager an opportunity of being heard, by order remove him from office and appoint another person to be the manager after consulting the educational agency. In the chart aforesaid, we have confined our attention to the management facet of the case but may mention that while in the earlier cases even the power to appoint the principal and staff was controlled, in the instant case it is a refreshing contrast. 39. First the D.A.V . College. He who runs and reads will discover that Statute 2(1) (a) insists upon (a) a limit to the strength of the governing body; (b) the approval of the Senate of the University for the constitution of the governing body; and (c) the inclusion of two representatives of the University as also the Principal of the college ex- officio. To legislate for the governing body a rigid restriction on its members is to deprive the minority of its free play in organising its management. To compel approval by the Senate-an outside instrumentality-before the governing body can have legal status, is a violent violation of Art. 30. To foist two representatives of the University rank outsiders-is again an infringement of the autonomy of the minority institution. The Court, in D.A. V. College case (sup) upheld the complaint of the college authorities thus:"In our view there is no possible justification for the provisions contained in Clauses 2(1)(a) and 17 or Chap. V of the statutes which decidedly interfere with the rights of management of the Petitioners Colleges. These provisions cannot therefore be made as conditions of affiliation, the non- compliance of which would involve disaffiliation and consequently they will have to be struck down as offending Article 30(1)." 40. It is impossible to predicate from the above observations that tills Court regarded as obnoxious the inclusion of the Principal of the very college. On the other hand, the more serious encroachment which caved into the independent management of the College consists in the first three provisions which are deprivation in character. The present case is a graphic contrast. No ceiling on membership; no unbidden guests, nominees of the University fobbed off- on the Managing Committee. The solitary but inconsequential similarity of circumstance that there is reference to the Principal, there and here, cannot approximate the two cases from the constitutional angle at all, what with complete hold on staff appointment in the former and none in the latter. 41. The Kerala Case (supra), as the table above shows, insists on the appointment of the Principal himself being controlled, displaces the minoritys Managing Committee by imposing an admixed governing agency of statutory concoction wresting authority from the minority. A different entity with legislatively limited functions robs the religious group of its right of administration. The distance between the Kerala University Act provisions and those of the Agra University Act is considerable and the constitutional import too obvious for argument. 42. The manacle regulations of the Gujarat University Act are also tell-tale. Its metamorphic impact is best summed up in the terse words of Ray, C.J. The minority character of the college is lost. Ministry institutions became part and parcel of the University. Why Because: The provisions contained in section 33-A(1) (a) of the Act state that every college shall be under the management of a governing body which shall include amongst its members, a representative of the University nominated by the Vice-Chancellor and representatives of teachers, non-teaching staff and students of the college:"In (1971) 1 SCR 734 (State of Kerala v. Very Rev. Mother Provincial) this Court said that if the administration goes to a body in the selection of whom the founders have no say, the administration would be displaced. This Court also said that situations might be conceived when they might have a preponderating voice. That would also affect the autonomy in administration. The provisions contained in section 33-A(1) (a) of the Act have the effect of displacing the management and entrusting it to a different agency. The autonomy in administration is lost. New elements in the shape of representatives of different types are brought in. The calm waters of an institution will not only be disturbed but also mixed. These provisions in Section 33-A(1) (a) cannot therefore apply to minority institutions." (at p. 1399) 43. The features of the Agra University Act vis-a-vis the minority institutions are conspicuously different and leave almost unaffected the total integrity of the administration by the religious group, save in the minimal inclusion of two internal entities namely the principal of their own choice and the senior-most lecturer independently appointed by them. 44. We are satisfied that the regulatory clauses challenged before us improve the administration and do not inhibit its autonomy and are therefore good and valid. 45. We therefore hold that the statute impugned is not vulnerable nor void. The appeal has to be and is dismissed, but without costs in the circumstances of this case. ORDER | 0[ds]18. The minority college is administered by a three-tier body organised intramurally by the Society. No outsider has entered the precincts of management which has all along remained with the members only. The General Council with plenary powers, the Governing body more circumscribed yet effective as policy-maker and the Managing Committee, the day-to-day administrative sub-agency-these are the organs vested with controlling power, under the relevant rules of the Society. The essential point is that the Society is that the Society is autonomous and its organs administer the institution,22. If reliance had been placed b y the University on this concession of the Management as amounting to a waiver of the fundamental right, thereby making short shrift of the dispute, it would have been difficult for us to accede, to the plea. Indeed, wisely no plea of waiver of the Fundamental right has been put forward and perhaps none can be, in this branch of constitutional jurisprudence. We are therefore concerned with discerning the parameter of minority right in Art. 3023. A stream of Supreme Court rulings commencing with the Kerala Education Bill Case ([1959] S.C.R. 995.) and climaxed by St. Xaviers College Case(A.I.R. [1974] S.C. 1389.) has settled the law for the present, and the last refers to the procedential past. We will confine ourselves largely to the currently final pronouncement; but where did the Court draw the delicate line between unconstitutional conditions and constitutional-regulations? A certain thread of unanimity exists among the many opinions and that common ground-not individual deviations and different must be the basis of our judgment. Right at the beginning we must observe that the whole edifice of case law on Art. 30 has been bed- rocked on the Kerala Education Bill Case (supra)28. The discussion throws us back to a closer study of Statute 14-A to see if it cuts into the flesh of the Managements right or merely tones up its health and habits. The two requirements the University asks for are that the Managing Body (whatever its name) must take in (a) the Principal of the College; (b) its senior-most teacher. Is this desideratum dismissible as biting into the autonomy of management or tenable as ensuring the excellence of the institution without injuring the essence of the right ? On a careful reflection and conscious of the constitutional dilemma, we are inclined to the view that this case Ms on the valid side of the delicate line. Regulation which restricts is bad; but regulation which facilitates is good. Where does this fine distinction lie? No rigid formula is possible but a flexible test is feasible. Where the object and effect is to improve the tone and temper of the administration without forcing on it a stranger, however superb his virtues be, where the directive is not to restructure the governing body but to better its performance by a marginal catalytic induction, where no external authoritys fiat or approval or outside nominee is made compulsory to validate the Management Board but inclusion of an internal key functionary appointed by the autonomous Management alone is asked for, the provision is salutary and saved, being not a diktat eroding the freedom of the freedomAll the other learned Judges who are party to St. Xavier (supra) and all the earlier rulings have negatived the untouchable absoluteness urged by the managements. Equally fallacious is the simplistic submission which appears to have appealed to the High Court that Art. 30 is disturbed only when the right is destroyed, not when it is damaged. St. Xavier (supra) has dispelled doubts in this behalf: Abridgement of the constitutional rig ht is as obnoxious as annihilation. To cripple is to kill36. The various decisions of this Court where legislative fetters have been struck down are cases in contrast. There, the rules maim; here they improve. There the input upsets the balance; here the addition is minimal and strengthens from within. There, are external mandates to approve; here an internal principal is proposed to be dovetailed to make administration more proficient without injury to independent actionThe Gujarat Case of St. Xavier (supra) is a study in contrast, as stated earlier. Sections 40 and 41 and s. 38 shackled the management, trenching seriously upon the right to administer. The law, as now expounded, regards this excess as unconstitutional37. In all these cases administrative autonomy is imperilled transgressing purely regulatory limits. In our case autonomy is virtually left intact and refurbishing, not restructuring, is prescribed. The core of the right is not gouged out at all and the regulation is at once reasonable and calculated to promote excellence of the institution a text book instance of constitutional conditionsthe chart aforesaid, we have confined our attention to the management facet of the case but may mention that while in the earlier cases even the power to appoint the principal and staff was controlled, in the instant case it is a refreshing contrast39. First the D.A.V . College. He who runs and reads will discover that Statute 2(1) (a) insists upon (a) a limit to the strength of the governing body; (b) the approval of the Senate of the University for the constitution of the governing body; and (c) the inclusion of two representatives of the University as also the Principal of the college ex- officio. To legislate for the governing body a rigid restriction on its members is to deprive the minority of its free play in organising its management. To compel approval by the Senate-an outside instrumentality-before the governing body can have legal status, is a violent violation of Art. 30. To foist two representatives of the University rank outsiders-is again an infringement of the autonomy of the minority institution. The Court, in D.A. V. College case (sup) upheld the complaint of the college authorities thus:"In our view there is no possible justification for the provisions contained in Clauses 2(1)(a) and 17 or Chap. V of the statutes which decidedly interfere with the rights of management of the Petitioners Colleges. These provisions cannot therefore be made as conditions of affiliation, the non- compliance of which would involve disaffiliation and consequently they will have to be struck down as offending Article 30(1)."40. It is impossible to predicate from the above observations that tills Court regarded as obnoxious the inclusion of the Principal of the very college. On the other hand, the more serious encroachment which caved into the independent management of the College consists in the first three provisions which are deprivation in character. The present case is a graphic contrast. No ceiling on membership; no unbidden guests, nominees of the University fobbed off- on the Managing Committee. The solitary but inconsequential similarity of circumstance that there is reference to the Principal, there and here, cannot approximate the two cases from the constitutional angle at all, what with complete hold on staff appointment in the former and none in the latter41. The Kerala Case (supra), as the table above shows, insists on the appointment of the Principal himself being controlled, displaces the minoritys Managing Committee by imposing an admixed governing agency of statutory concoction wresting authority from the minority. A different entity with legislatively limited functions robs the religious group of its right of administration. The distance between the Kerala University Act provisions and those of the Agra University Act is considerable and the constitutional import too obvious for argument42. The manacle regulations of the Gujarat University Act are also tell-tale. Its metamorphic impact is best summed up in the terse words of Ray, C.J. The minority character of the college is lost. Ministry institutions became part and parcel of the University. Why Because:The provisions contained in section 33-A(1) (a) of the Act state that every college shall be under the management of a governing body which shall include amongst its members, a representative of the University nominated by the Vice-Chancellor and representatives of teachers, non-teaching staff and students of the college:"In (1971) 1 SCR 734 (State of Kerala v. Very Rev. Mother Provincial) this Court said that if the administration goes to a body in the selection of whom the founders have no say, the administration would be displaced. This Court also said that situations might be conceived when they might have a preponderating voice. That would also affect the autonomy in administration. The provisions contained in section 33-A(1) (a) of the Act have the effect of displacing the management and entrusting it to a different agency. The autonomy in administration is lost. New elements in the shape of representatives of different types are brought in. The calm waters of an institution will not only be disturbed but also mixed. These provisions in Section 33-A(1) (a) cannot therefore apply to minority institutions." (at p. 1399)The features of the Agra University Act vis-a-vis the minority institutions are conspicuously different and leave almost unaffected the total integrity of the administration by the religious group, save in the minimal inclusion of two internal entities namely the principal of their own choice and the senior-most lecturer independently appointed by them44. We are satisfied that the regulatory clauses challenged before us improve the administration and do not inhibit its autonomy and are therefore good and valid. | 0 | 10,231 | 1,739 | ### 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:
Notwithstanding anything contained in sub-section (6), decisions of the managing council shall be taken at meetings on the basis of simple majority of the members present and voting, S.63-Power to regulate the management of private colleges:- (4) If the governing body or managing council, as the case may be,disapproves any decision taken by the University in connection with the management of the private college the matter shall be referred by the governing body or managing council, as the case may be, to the Government, within one month of the date of receipt of the report under subsection (3) who shall there upon pass such order there on as they think fit and communicate the same to the governing body or managing council and also to the University. (6) The manager appointed under sub-section (1) of section 50 shall be bound to give effect to the decisions of the University and if at any time, it appears to the University that the manager is not carrying out its decisions, it may, for reasons to be recorded in writing and after giving the manager an opportunity of being heard, by order remove him from office and appoint another person to be the manager after consulting the educational agency. In the chart aforesaid, we have confined our attention to the management facet of the case but may mention that while in the earlier cases even the power to appoint the principal and staff was controlled, in the instant case it is a refreshing contrast. 39. First the D.A.V . College. He who runs and reads will discover that Statute 2(1) (a) insists upon (a) a limit to the strength of the governing body; (b) the approval of the Senate of the University for the constitution of the governing body; and (c) the inclusion of two representatives of the University as also the Principal of the college ex- officio. To legislate for the governing body a rigid restriction on its members is to deprive the minority of its free play in organising its management. To compel approval by the Senate-an outside instrumentality-before the governing body can have legal status, is a violent violation of Art. 30. To foist two representatives of the University rank outsiders-is again an infringement of the autonomy of the minority institution. The Court, in D.A. V. College case (sup) upheld the complaint of the college authorities thus:"In our view there is no possible justification for the provisions contained in Clauses 2(1)(a) and 17 or Chap. V of the statutes which decidedly interfere with the rights of management of the Petitioners Colleges. These provisions cannot therefore be made as conditions of affiliation, the non- compliance of which would involve disaffiliation and consequently they will have to be struck down as offending Article 30(1)." 40. It is impossible to predicate from the above observations that tills Court regarded as obnoxious the inclusion of the Principal of the very college. On the other hand, the more serious encroachment which caved into the independent management of the College consists in the first three provisions which are deprivation in character. The present case is a graphic contrast. No ceiling on membership; no unbidden guests, nominees of the University fobbed off- on the Managing Committee. The solitary but inconsequential similarity of circumstance that there is reference to the Principal, there and here, cannot approximate the two cases from the constitutional angle at all, what with complete hold on staff appointment in the former and none in the latter. 41. The Kerala Case (supra), as the table above shows, insists on the appointment of the Principal himself being controlled, displaces the minoritys Managing Committee by imposing an admixed governing agency of statutory concoction wresting authority from the minority. A different entity with legislatively limited functions robs the religious group of its right of administration. The distance between the Kerala University Act provisions and those of the Agra University Act is considerable and the constitutional import too obvious for argument. 42. The manacle regulations of the Gujarat University Act are also tell-tale. Its metamorphic impact is best summed up in the terse words of Ray, C.J. The minority character of the college is lost. Ministry institutions became part and parcel of the University. Why Because: The provisions contained in section 33-A(1) (a) of the Act state that every college shall be under the management of a governing body which shall include amongst its members, a representative of the University nominated by the Vice-Chancellor and representatives of teachers, non-teaching staff and students of the college:"In (1971) 1 SCR 734 (State of Kerala v. Very Rev. Mother Provincial) this Court said that if the administration goes to a body in the selection of whom the founders have no say, the administration would be displaced. This Court also said that situations might be conceived when they might have a preponderating voice. That would also affect the autonomy in administration. The provisions contained in section 33-A(1) (a) of the Act have the effect of displacing the management and entrusting it to a different agency. The autonomy in administration is lost. New elements in the shape of representatives of different types are brought in. The calm waters of an institution will not only be disturbed but also mixed. These provisions in Section 33-A(1) (a) cannot therefore apply to minority institutions." (at p. 1399) 43. The features of the Agra University Act vis-a-vis the minority institutions are conspicuously different and leave almost unaffected the total integrity of the administration by the religious group, save in the minimal inclusion of two internal entities namely the principal of their own choice and the senior-most lecturer independently appointed by them. 44. We are satisfied that the regulatory clauses challenged before us improve the administration and do not inhibit its autonomy and are therefore good and valid. 45. We therefore hold that the statute impugned is not vulnerable nor void. The appeal has to be and is dismissed, but without costs in the circumstances of this case. ORDER
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0
### Explanation:
the freedomAll the other learned Judges who are party to St. Xavier (supra) and all the earlier rulings have negatived the untouchable absoluteness urged by the managements. Equally fallacious is the simplistic submission which appears to have appealed to the High Court that Art. 30 is disturbed only when the right is destroyed, not when it is damaged. St. Xavier (supra) has dispelled doubts in this behalf: Abridgement of the constitutional rig ht is as obnoxious as annihilation. To cripple is to kill36. The various decisions of this Court where legislative fetters have been struck down are cases in contrast. There, the rules maim; here they improve. There the input upsets the balance; here the addition is minimal and strengthens from within. There, are external mandates to approve; here an internal principal is proposed to be dovetailed to make administration more proficient without injury to independent actionThe Gujarat Case of St. Xavier (supra) is a study in contrast, as stated earlier. Sections 40 and 41 and s. 38 shackled the management, trenching seriously upon the right to administer. The law, as now expounded, regards this excess as unconstitutional37. In all these cases administrative autonomy is imperilled transgressing purely regulatory limits. In our case autonomy is virtually left intact and refurbishing, not restructuring, is prescribed. The core of the right is not gouged out at all and the regulation is at once reasonable and calculated to promote excellence of the institution a text book instance of constitutional conditionsthe chart aforesaid, we have confined our attention to the management facet of the case but may mention that while in the earlier cases even the power to appoint the principal and staff was controlled, in the instant case it is a refreshing contrast39. First the D.A.V . College. He who runs and reads will discover that Statute 2(1) (a) insists upon (a) a limit to the strength of the governing body; (b) the approval of the Senate of the University for the constitution of the governing body; and (c) the inclusion of two representatives of the University as also the Principal of the college ex- officio. To legislate for the governing body a rigid restriction on its members is to deprive the minority of its free play in organising its management. To compel approval by the Senate-an outside instrumentality-before the governing body can have legal status, is a violent violation of Art. 30. To foist two representatives of the University rank outsiders-is again an infringement of the autonomy of the minority institution. The Court, in D.A. V. College case (sup) upheld the complaint of the college authorities thus:"In our view there is no possible justification for the provisions contained in Clauses 2(1)(a) and 17 or Chap. V of the statutes which decidedly interfere with the rights of management of the Petitioners Colleges. These provisions cannot therefore be made as conditions of affiliation, the non- compliance of which would involve disaffiliation and consequently they will have to be struck down as offending Article 30(1)."40. It is impossible to predicate from the above observations that tills Court regarded as obnoxious the inclusion of the Principal of the very college. On the other hand, the more serious encroachment which caved into the independent management of the College consists in the first three provisions which are deprivation in character. The present case is a graphic contrast. No ceiling on membership; no unbidden guests, nominees of the University fobbed off- on the Managing Committee. The solitary but inconsequential similarity of circumstance that there is reference to the Principal, there and here, cannot approximate the two cases from the constitutional angle at all, what with complete hold on staff appointment in the former and none in the latter41. The Kerala Case (supra), as the table above shows, insists on the appointment of the Principal himself being controlled, displaces the minoritys Managing Committee by imposing an admixed governing agency of statutory concoction wresting authority from the minority. A different entity with legislatively limited functions robs the religious group of its right of administration. The distance between the Kerala University Act provisions and those of the Agra University Act is considerable and the constitutional import too obvious for argument42. The manacle regulations of the Gujarat University Act are also tell-tale. Its metamorphic impact is best summed up in the terse words of Ray, C.J. The minority character of the college is lost. Ministry institutions became part and parcel of the University. Why Because:The provisions contained in section 33-A(1) (a) of the Act state that every college shall be under the management of a governing body which shall include amongst its members, a representative of the University nominated by the Vice-Chancellor and representatives of teachers, non-teaching staff and students of the college:"In (1971) 1 SCR 734 (State of Kerala v. Very Rev. Mother Provincial) this Court said that if the administration goes to a body in the selection of whom the founders have no say, the administration would be displaced. This Court also said that situations might be conceived when they might have a preponderating voice. That would also affect the autonomy in administration. The provisions contained in section 33-A(1) (a) of the Act have the effect of displacing the management and entrusting it to a different agency. The autonomy in administration is lost. New elements in the shape of representatives of different types are brought in. The calm waters of an institution will not only be disturbed but also mixed. These provisions in Section 33-A(1) (a) cannot therefore apply to minority institutions." (at p. 1399)The features of the Agra University Act vis-a-vis the minority institutions are conspicuously different and leave almost unaffected the total integrity of the administration by the religious group, save in the minimal inclusion of two internal entities namely the principal of their own choice and the senior-most lecturer independently appointed by them44. We are satisfied that the regulatory clauses challenged before us improve the administration and do not inhibit its autonomy and are therefore good and valid.
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Solanki Chimanbhai Ukabhai Vs. State of Gujarat | at the 4th left intercostal space, about 2 1/2" from midline oblique in direction from superolateral to inferomedial.(2) Stab wound 1" x 1/2" x 4" deep at the 3rd left intercostal space about 4" from midline, horizontal in direction.(3) Abrasion 1/4" x 1/4" at the tip of nose.In the opinion of Dr. Desai, injuries [1] and [2] were possible by a sharp cutting instrument and injury [3] was possible by friction with rough surface or by a fall. Dr. Desai, however, specifically deposed that injuries [1] and [2] were possible by piercing blow give by a spear. Other internal injuries noticed by the doctor were corresponding to external injuries [1] and [2] According to the doctor the cause of injuries [1] and [2] singly or cumulatively was sufficient in the ordinary course of nature to cause death. According to him, the cause of death was shock and haemorrhage due to external and internal injuries noticed by him.11. The High Court appraising the evidence of the doctor observed as follows :It is the positive evidence of Dr. Desai in examination-in-chief that both the aforesaid injuries were possible by a sharp cutting instrument such as the spear before the Court. Under cross- examination all that has been elicited from the doctor is that two different weapons might have been used for causing the aforesaid injuries, since one of the injuries was an incised would and the other was a stab wound. Be it noted, however, that it has not been elicited in cross-examination that one weapon such as a spear could not have caused both the injuries. To say that two different weapons might have been used for causing two different injuries is not equivalent to saying that one weapon could not have caused both the injuries. In fact, even according to what the doctor has stated at the conclusion of his cross examination, both the injuries were possible by a blow given by a dagger if the assailant inflicted the blows while sitting on the person of the deceased. It is difficult to conclude, therefore, on the testimony or Dr. Desai, that both the injuries could not possibly have been caused by the same weapon to the deceased or that a spear could not have caused the first injury.The Court also observed that the possibility cannot be ruled out that injury [1] could have been caused to the deceased if the blade of the spear had landed sideways on his person. In the absence of any specific cross-examination of the medical witness with a view to establish that injury [1] could never have been caused by a spear, one would be entering into the realm of conjecture in holding that injury [1] was not possible by a spear.12. In the opinion of the High Court it would not be proper to discard the testimony of eye-witnesses, if it was otherwise satisfactory, on the simple ground that the medical testimony was in conflict with testimony of the witnesses, insofar as they depose to the injuries on the deceased having been caused by a spear.13. Ordinarily, the value of medical evidence is only corroborative. It proves that the injuries could have been caused in the manner alleged and nothing more. The use which the defence can make of medical evidence is to prove that the injuries could not possibly have been caused in the manner alleged and thereby discredit the eye- witnesses. Unless, however the medical evidence in its turn goes so far that it completely rules out all possibilities whatsoever of injuries taking place in the manner alleged by eye-witnesses, the testimony of the eye-witnesses cannot be thrown out on the ground of alleged inconsistency between it and the medical evidence.14. The main ground on which the evidence of the eye-witnesses have been discarded by the Sessions Judge, as observed earlier, was that the medical evidence belied the prosecution case. The High that medical evidence did not belie the prosecution case, rather it was in support of the prosecution case. In the view that the High Court took about the medical evidence, it proceeded to consider the worth of the evidence of the eye-witnesses. In the opinion of the High Court all the three witnesses were possible witnesses and their presence was quite natural. PW 4, being the widow of the deceased was likely to be present at home and see the incident herself. PW 3 was also the granddaughter of the deceased. Her presence at house is also a likely one. The third witness was a neighbour. The evidence of PW 4 was sought to be challenged on the ground that in her deposition before the police she had not named PW 3, the granddaughter of the deceased as present at the time of the occurrence and the evidence of PW 3 the granddaughter, who was aged seven years or eight years, was sought to be discarded on the ground that her name was not given by PW 4 in her statement before the police. The High Court has dealt with both these criticisms and has rightly come to the conclusion that all the three witnesses were natural witnesses and were present at the place of occurrence. The High Court has discussed the evidence of these three witnesses at great length and has also considered the grounds on which the testimony of these witnesses has been discarded by the Sessions Judge.It has given cogent reasons for relying on the testimony of the three witnesses. No exception, in our opinion, can be taken to the appraisal of the evidence made by the High Court. It is not necessary to repeat those reasons in great detail. In the opinion of the High possible conclusion on the basis of the material on the record. On these findings the High Court set aside the order of acquittal and convicted the appellant for the offence under Section 302. The petitioner has bow come to challenge the order of the High Court by filing the present appeal. | 0[ds]9. The High Court was fully alive to the legal position about the power of the appellate court. The appellate court while dealing with an appeal against the order of acquittal has full power to review at large the evidence on which the order of acquittal is founded and to reach a conclusion that upon such evidence the order of acquittal should be reversed. However, in exercising that power the appellate court should give proper weight and consideration to the following matters : [1] the views of the Trial Judge as to the credibility of the witnesses, [2] the presumption of innocence in favour of the accused, a presumption certainly not weakened by the fact that he has been acquitted at the trial, [3] the right of the accused to the benefit of any doubt, and [4] the slowness of the appellate court in disturbing a finding of fact arrived at by a Judge, who had the advantage of seeing the witness, which finding would not certainly be disturbed if two reasonable conclusions can be reached on the basis of the evidence on record.In the opinion of the High Court it would not be proper to discard the testimony ofif it was otherwise satisfactory, on the simple ground that the medical testimony was in conflict with testimony of the witnesses, insofar as they depose to the injuries on the deceased having been caused by a spear.13. Ordinarily, the value of medical evidence is only corroborative. It proves that the injuries could have been caused in the manner alleged and nothing more. The use which the defence can make of medical evidence is to prove that the injuries could not possibly have been caused in the manner alleged and thereby discredit the eyewitnesses. Unless, however the medical evidence in its turn goes so far that it completely rules out all possibilities whatsoever of injuries taking place in the manner alleged bythe testimony of thecannot be thrown out on the ground of alleged inconsistency between it and the medical evidence.14. The main ground on which the evidence of thehave been discarded by the Sessions Judge, as observed earlier, was that the medical evidence belied the prosecution case. The High that medical evidence did not belie the prosecution case, rather it was in support of the prosecution case. In the view that the High Court took about the medical evidence, it proceeded to consider the worth of the evidence of theIn the opinion of the High Court all the three witnesses were possible witnesses and their presence was quite natural. PW 4, being the widow of the deceased was likely to be present at home and see the incident herself. PW 3 was also the granddaughter of the deceased. Her presence at house is also a likely one. The third witness was a neighbour. The evidence of PW 4 was sought to be challenged on the ground that in her deposition before the police she had not named PW 3, the granddaughter of the deceased as present at the time of the occurrence and the evidence of PW 3 the granddaughter, who was aged seven years or eight years, was sought to be discarded on the ground that her name was not given by PW 4 in her statement before the police. The High Court has dealt with both these criticisms and has rightly come to the conclusion that all the three witnesses were natural witnesses and were present at the place of occurrence. The High Court has discussed the evidence of these three witnesses at great length and has also considered the grounds on whichthe testimony ofwitnesses has been discarded by the Sessions Judge.It has given cogent reasons for relying onthe testimony ofthree witnesses. No exception, in our opinion, can be taken to the appraisal of the evidence made by the High Court. It is not necessary to repeat those reasons in great detail. In the opinion of the High possible conclusion on the basis of the material on the record. On these findings the High Court set aside the order of acquittal and convicted the appellant for the offence under Section 302. The petitioner has bow come to challenge the order of the High Court by filing the present appeal. | 0 | 2,677 | 765 | ### Instruction:
Speculate on the likely judgment (yes (1) or no (0) to the appeal) and then delve into the case proceeding to elucidate your prediction, focusing on critical sentences.
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at the 4th left intercostal space, about 2 1/2" from midline oblique in direction from superolateral to inferomedial.(2) Stab wound 1" x 1/2" x 4" deep at the 3rd left intercostal space about 4" from midline, horizontal in direction.(3) Abrasion 1/4" x 1/4" at the tip of nose.In the opinion of Dr. Desai, injuries [1] and [2] were possible by a sharp cutting instrument and injury [3] was possible by friction with rough surface or by a fall. Dr. Desai, however, specifically deposed that injuries [1] and [2] were possible by piercing blow give by a spear. Other internal injuries noticed by the doctor were corresponding to external injuries [1] and [2] According to the doctor the cause of injuries [1] and [2] singly or cumulatively was sufficient in the ordinary course of nature to cause death. According to him, the cause of death was shock and haemorrhage due to external and internal injuries noticed by him.11. The High Court appraising the evidence of the doctor observed as follows :It is the positive evidence of Dr. Desai in examination-in-chief that both the aforesaid injuries were possible by a sharp cutting instrument such as the spear before the Court. Under cross- examination all that has been elicited from the doctor is that two different weapons might have been used for causing the aforesaid injuries, since one of the injuries was an incised would and the other was a stab wound. Be it noted, however, that it has not been elicited in cross-examination that one weapon such as a spear could not have caused both the injuries. To say that two different weapons might have been used for causing two different injuries is not equivalent to saying that one weapon could not have caused both the injuries. In fact, even according to what the doctor has stated at the conclusion of his cross examination, both the injuries were possible by a blow given by a dagger if the assailant inflicted the blows while sitting on the person of the deceased. It is difficult to conclude, therefore, on the testimony or Dr. Desai, that both the injuries could not possibly have been caused by the same weapon to the deceased or that a spear could not have caused the first injury.The Court also observed that the possibility cannot be ruled out that injury [1] could have been caused to the deceased if the blade of the spear had landed sideways on his person. In the absence of any specific cross-examination of the medical witness with a view to establish that injury [1] could never have been caused by a spear, one would be entering into the realm of conjecture in holding that injury [1] was not possible by a spear.12. In the opinion of the High Court it would not be proper to discard the testimony of eye-witnesses, if it was otherwise satisfactory, on the simple ground that the medical testimony was in conflict with testimony of the witnesses, insofar as they depose to the injuries on the deceased having been caused by a spear.13. Ordinarily, the value of medical evidence is only corroborative. It proves that the injuries could have been caused in the manner alleged and nothing more. The use which the defence can make of medical evidence is to prove that the injuries could not possibly have been caused in the manner alleged and thereby discredit the eye- witnesses. Unless, however the medical evidence in its turn goes so far that it completely rules out all possibilities whatsoever of injuries taking place in the manner alleged by eye-witnesses, the testimony of the eye-witnesses cannot be thrown out on the ground of alleged inconsistency between it and the medical evidence.14. The main ground on which the evidence of the eye-witnesses have been discarded by the Sessions Judge, as observed earlier, was that the medical evidence belied the prosecution case. The High that medical evidence did not belie the prosecution case, rather it was in support of the prosecution case. In the view that the High Court took about the medical evidence, it proceeded to consider the worth of the evidence of the eye-witnesses. In the opinion of the High Court all the three witnesses were possible witnesses and their presence was quite natural. PW 4, being the widow of the deceased was likely to be present at home and see the incident herself. PW 3 was also the granddaughter of the deceased. Her presence at house is also a likely one. The third witness was a neighbour. The evidence of PW 4 was sought to be challenged on the ground that in her deposition before the police she had not named PW 3, the granddaughter of the deceased as present at the time of the occurrence and the evidence of PW 3 the granddaughter, who was aged seven years or eight years, was sought to be discarded on the ground that her name was not given by PW 4 in her statement before the police. The High Court has dealt with both these criticisms and has rightly come to the conclusion that all the three witnesses were natural witnesses and were present at the place of occurrence. The High Court has discussed the evidence of these three witnesses at great length and has also considered the grounds on which the testimony of these witnesses has been discarded by the Sessions Judge.It has given cogent reasons for relying on the testimony of the three witnesses. No exception, in our opinion, can be taken to the appraisal of the evidence made by the High Court. It is not necessary to repeat those reasons in great detail. In the opinion of the High possible conclusion on the basis of the material on the record. On these findings the High Court set aside the order of acquittal and convicted the appellant for the offence under Section 302. The petitioner has bow come to challenge the order of the High Court by filing the present appeal.
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0
### Explanation:
9. The High Court was fully alive to the legal position about the power of the appellate court. The appellate court while dealing with an appeal against the order of acquittal has full power to review at large the evidence on which the order of acquittal is founded and to reach a conclusion that upon such evidence the order of acquittal should be reversed. However, in exercising that power the appellate court should give proper weight and consideration to the following matters : [1] the views of the Trial Judge as to the credibility of the witnesses, [2] the presumption of innocence in favour of the accused, a presumption certainly not weakened by the fact that he has been acquitted at the trial, [3] the right of the accused to the benefit of any doubt, and [4] the slowness of the appellate court in disturbing a finding of fact arrived at by a Judge, who had the advantage of seeing the witness, which finding would not certainly be disturbed if two reasonable conclusions can be reached on the basis of the evidence on record.In the opinion of the High Court it would not be proper to discard the testimony ofif it was otherwise satisfactory, on the simple ground that the medical testimony was in conflict with testimony of the witnesses, insofar as they depose to the injuries on the deceased having been caused by a spear.13. Ordinarily, the value of medical evidence is only corroborative. It proves that the injuries could have been caused in the manner alleged and nothing more. The use which the defence can make of medical evidence is to prove that the injuries could not possibly have been caused in the manner alleged and thereby discredit the eyewitnesses. Unless, however the medical evidence in its turn goes so far that it completely rules out all possibilities whatsoever of injuries taking place in the manner alleged bythe testimony of thecannot be thrown out on the ground of alleged inconsistency between it and the medical evidence.14. The main ground on which the evidence of thehave been discarded by the Sessions Judge, as observed earlier, was that the medical evidence belied the prosecution case. The High that medical evidence did not belie the prosecution case, rather it was in support of the prosecution case. In the view that the High Court took about the medical evidence, it proceeded to consider the worth of the evidence of theIn the opinion of the High Court all the three witnesses were possible witnesses and their presence was quite natural. PW 4, being the widow of the deceased was likely to be present at home and see the incident herself. PW 3 was also the granddaughter of the deceased. Her presence at house is also a likely one. The third witness was a neighbour. The evidence of PW 4 was sought to be challenged on the ground that in her deposition before the police she had not named PW 3, the granddaughter of the deceased as present at the time of the occurrence and the evidence of PW 3 the granddaughter, who was aged seven years or eight years, was sought to be discarded on the ground that her name was not given by PW 4 in her statement before the police. The High Court has dealt with both these criticisms and has rightly come to the conclusion that all the three witnesses were natural witnesses and were present at the place of occurrence. The High Court has discussed the evidence of these three witnesses at great length and has also considered the grounds on whichthe testimony ofwitnesses has been discarded by the Sessions Judge.It has given cogent reasons for relying onthe testimony ofthree witnesses. No exception, in our opinion, can be taken to the appraisal of the evidence made by the High Court. It is not necessary to repeat those reasons in great detail. In the opinion of the High possible conclusion on the basis of the material on the record. On these findings the High Court set aside the order of acquittal and convicted the appellant for the offence under Section 302. The petitioner has bow come to challenge the order of the High Court by filing the present appeal.
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Sita Ram Goel Vs. Municipal Board, Kanpur & Others | first court passed its judgment, time would certainly begin to run from that date under Art. 181 and the mere fact that the judgment was challenged by way of an appeal which might eventually set it aside, does not, in my opinion, operate to suspend the running of time. Nor would the appellate courts decree into which the decree of the trial court would undoubtedly merge give the party a fresh starting point for limitation."21. The analogy of the decree of the trial court merging into a decree of the appeal court clearly does not apply to these cases. The observations of Rankin C. J. in Hari Mohan v. Parameshwar Shau. AIR 1928 Cal 646 at p. 650: ILR 56 Cal 61 at p. 78 (D) are also in point. Said the learned Chief Justice at p. 650 :"But the application to be made under S. 144 is an application which must be made to the Court of the first instance whether the decree varies or reversed was passed by that Court or a higher Court. That Court has to determine whether the applicant is entitled to any and what benefits, by way of restitution or otherwise, by reason of the decree of the appellate court varying or reversing a previous decree. We have to determine this case under Art. 181, of the Limitation Act, which directs us, in general language, to find out the date on which the applicants right accrued. In the ordinary and natural meaning of the words, their right accrued immediately the District Judge reversed the decision of the trial court, and reduced the amount of the plaintiffs claim. Unless, therefore, we are required by reason of the nature of the matter to ignore the effect of that decision, because it was confirmed on appeal, it seems to me to be wrong to do so. To refuse so to do does not involve the proposition that two decrees for the same thing may be executed simultaneously. Nor does it involve, so far as I can see, the affirmance of any other proposition that can be regarded as inconvenient or absurd."22. Further, when even if the analogy applies, where the decree of the appeal court only affirms the decree of the trial court, this Court has held in the State of U. P. v. Mohd. Nooh (B) Supra, that the original decree of the trial court remains operative This Court has said at p. 95:"In the next place, while it is true that a decree of a court of first instance may be said to merge in the decree passed on appeal therefrom or even in the order passed in revision, it does so only for certain purposes, namely, for the purposes of computing the period of limitation for execution of the decree as in Batuk Nath v. Munni Dei, 41 Ind App. 104: (AIR 1914 PC 65) (E), or for computing the period of limitation for an application for final decree in a mortgage suit as in Jowad Hussain v. Gendan Singh. 53 Ind App 197 : (AIR 1926 PC 93) (F). but as pointed by Sir Lawrence Jenkins in delivering the judgment of the Privy Council in Juscurn Boid v. Pirthichand Lal, 46 Ind App 52 : ILR 46 Cal 670 at pp. 678-679: (AIR 1918 PC 151 at pp. 152-153) (G), whatever be the theory under other systems of law, under the Indian law and procedure an, original decree is not suspended by the presentation of an appeal nor is its operation interrupted where the decree on appeal is merely one of dismissal. There is nothing in the Indian law to warrant the suggestion that the decree or order of the court or tribunal of the first instance becomes final only on the termination of all proceedings by way of appeal or revision, The filing of the appeal or revision may put the decree or order in jeopardy but until it is reversed or modified it remains effective."23. The original decree being thus operative what we are really concerned with is the commencement of the period of limitation as prescribed in the relevant statute and if the statute prescribes that it commences from the date of the accrual of the cause of action there is no getting behind these word in spite of the apparent iniquity of applying the same. As was pointed out by Mr. Justice Seshagiri Ayyar in Mathu Korakkai Cheety v. Madar Ammal, ILR 43 Mad 185 at p. 213: (AIR 1920 Mad 1 at p. 13) (H)."Therefore in my opinion, the true rule deducible from these various decisions of the Judicial Committee is this: that subject to the exemptions, exclusion, mode of computation and the excusing of delay, etc., which are provided in the Limitation Act, the language of the third column of the first schedule should be so interpreted as to carry out the true intention of the legislature, that is to say, by dating the cause of action from a date when the remedy is available to the party."24. The cause of action in the present case accrued to the appellant the moment the resolution of the Board was communicated to him and that was the date of the commencement of the limitation. The remedy, if any, by way of filing a suit against the Board in respect of his wrongful dismissal was available to him from that date and it was open to him to pursue that remedy within the period of limitation prescribed under Section 326 of the Act.25. The result is no doubt unfortunate for the appellant, because the trial court found in his favour in regard to his plea of wrongful dismissal. If he had only brought the suit within the period prescribed by S. 326 of the Act, he might possibly have got some relief from the Court. He however chose to wait till the decision of the State Government on his appeal and overstepped the limit of time to his own detriment. | 0[ds]The principle that the superior courts may not in their discretion issue the prerogative writs unless the applicant has exhausted all his remedies under the special Act does not apply to a suit.There is nothing in S. 58(1) which expressly or impliedly bars his right of suit. The provisions contained in S. 58(2) above would also not help him for the simple reason that the power which is vested in the State Government of suspending an employee pending the decision of the appeal can hardly be said to be a condition of the order of the Board. In any event, that power is given to the State Government for giving relief to the employee who has thus appealed against the rigour of the order of dismissal passed by the Board, against him. The employee may have been dismissed by the Board, in which case on looking at the prima facie aspect of the matter the State Government may as well come to the conclusion that the operation of the order of dismissal may be stayed and he be suspended instead, thus entitling him to subsistence allowance during the pendency of the appeal. If the appeal is eventually dismissed the order of dismissal by the Board will stand; if the appeal is allowed he will be entitled to continue in the employ and enjoy all the benefits and privileges of such employment, but he would not have to starve during the period that the appeal was pending before the State Government. The provisions of Section 58(2) have to be read along with those of Section 58 (1) and it cannot be urged that the power of suspension vested in the State Government is to be exercised in any other case except that of dismissal or removal of the employee by the Board. In the case of any other punishment an order of suspension passed by the State Government pending the decision of the appeal would only mean that during the pendency of the appeal the State Government is empowered to visit on him a higher punishment than what has meted out to him already by the Board. Such an absurd position could never have been thought of by the legislature and the only way in which S. 58 (1) can be read consistently with S. 58 (2) is to construe this power of suspension vested in the State Government to apply only to those cases where a higher punishment than suspension has been meted out by Board to the employee.Sec. 58 (2) merely prescribes the powers which the State Government may exercise in the matter of the appeal which has been filed by the employee against the order of the Board. The more filing of an appeal has not the effect of holding the order of the Board in abeyance or postponing the effect thereof until the decision of the appeal. Such a construction would on the other hand involve that even though a special resolution was passed by the Board dismissing or removing the employee he would continue to function as such and draw his salary pending the decision of his appeal, once he filed an appeal to the State Government as prescribed. We do not see any words in S. 58(1) and (2) which would suspend the operation of the order passed by the Board or render it ineffective by reason of the filing or the pendency of theis, therefore, clear that even though the order passed by the Board was subject to the right of appeal given to the employee in the manner aforesaid, the operation of the order was not suspended nor was its effect in any manner postponed till a later date by the mere filing of the appeal and it became effective from the date when it was communicated to the employee. The cause of action, if any, accrued to the employee on the date of such communication and the period of limitation commenced to run from that date.The original decree being thus operative what we are really concerned with is the commencement of the period of limitation as prescribed in the relevant statute and if the statute prescribes that it commences from the date of the accrual of the cause of action there is no getting behind these word in spite of the apparent iniquity of applying the same.The cause of action in the present case accrued to the appellant the moment the resolution of the Board was communicated to him and that was the date of the commencement of the limitation. The remedy, if any, by way of filing a suit against the Board in respect of his wrongful dismissal was available to him from that date and it was open to him to pursue that remedy within the period of limitation prescribed under Section 326 of the Act. | 0 | 5,274 | 861 | ### Instruction:
Ascertain if the court will uphold (1) or dismiss (0) the appeal in the case proceeding, and then clarify this prediction by discussing critical sentences from the text.
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first court passed its judgment, time would certainly begin to run from that date under Art. 181 and the mere fact that the judgment was challenged by way of an appeal which might eventually set it aside, does not, in my opinion, operate to suspend the running of time. Nor would the appellate courts decree into which the decree of the trial court would undoubtedly merge give the party a fresh starting point for limitation."21. The analogy of the decree of the trial court merging into a decree of the appeal court clearly does not apply to these cases. The observations of Rankin C. J. in Hari Mohan v. Parameshwar Shau. AIR 1928 Cal 646 at p. 650: ILR 56 Cal 61 at p. 78 (D) are also in point. Said the learned Chief Justice at p. 650 :"But the application to be made under S. 144 is an application which must be made to the Court of the first instance whether the decree varies or reversed was passed by that Court or a higher Court. That Court has to determine whether the applicant is entitled to any and what benefits, by way of restitution or otherwise, by reason of the decree of the appellate court varying or reversing a previous decree. We have to determine this case under Art. 181, of the Limitation Act, which directs us, in general language, to find out the date on which the applicants right accrued. In the ordinary and natural meaning of the words, their right accrued immediately the District Judge reversed the decision of the trial court, and reduced the amount of the plaintiffs claim. Unless, therefore, we are required by reason of the nature of the matter to ignore the effect of that decision, because it was confirmed on appeal, it seems to me to be wrong to do so. To refuse so to do does not involve the proposition that two decrees for the same thing may be executed simultaneously. Nor does it involve, so far as I can see, the affirmance of any other proposition that can be regarded as inconvenient or absurd."22. Further, when even if the analogy applies, where the decree of the appeal court only affirms the decree of the trial court, this Court has held in the State of U. P. v. Mohd. Nooh (B) Supra, that the original decree of the trial court remains operative This Court has said at p. 95:"In the next place, while it is true that a decree of a court of first instance may be said to merge in the decree passed on appeal therefrom or even in the order passed in revision, it does so only for certain purposes, namely, for the purposes of computing the period of limitation for execution of the decree as in Batuk Nath v. Munni Dei, 41 Ind App. 104: (AIR 1914 PC 65) (E), or for computing the period of limitation for an application for final decree in a mortgage suit as in Jowad Hussain v. Gendan Singh. 53 Ind App 197 : (AIR 1926 PC 93) (F). but as pointed by Sir Lawrence Jenkins in delivering the judgment of the Privy Council in Juscurn Boid v. Pirthichand Lal, 46 Ind App 52 : ILR 46 Cal 670 at pp. 678-679: (AIR 1918 PC 151 at pp. 152-153) (G), whatever be the theory under other systems of law, under the Indian law and procedure an, original decree is not suspended by the presentation of an appeal nor is its operation interrupted where the decree on appeal is merely one of dismissal. There is nothing in the Indian law to warrant the suggestion that the decree or order of the court or tribunal of the first instance becomes final only on the termination of all proceedings by way of appeal or revision, The filing of the appeal or revision may put the decree or order in jeopardy but until it is reversed or modified it remains effective."23. The original decree being thus operative what we are really concerned with is the commencement of the period of limitation as prescribed in the relevant statute and if the statute prescribes that it commences from the date of the accrual of the cause of action there is no getting behind these word in spite of the apparent iniquity of applying the same. As was pointed out by Mr. Justice Seshagiri Ayyar in Mathu Korakkai Cheety v. Madar Ammal, ILR 43 Mad 185 at p. 213: (AIR 1920 Mad 1 at p. 13) (H)."Therefore in my opinion, the true rule deducible from these various decisions of the Judicial Committee is this: that subject to the exemptions, exclusion, mode of computation and the excusing of delay, etc., which are provided in the Limitation Act, the language of the third column of the first schedule should be so interpreted as to carry out the true intention of the legislature, that is to say, by dating the cause of action from a date when the remedy is available to the party."24. The cause of action in the present case accrued to the appellant the moment the resolution of the Board was communicated to him and that was the date of the commencement of the limitation. The remedy, if any, by way of filing a suit against the Board in respect of his wrongful dismissal was available to him from that date and it was open to him to pursue that remedy within the period of limitation prescribed under Section 326 of the Act.25. The result is no doubt unfortunate for the appellant, because the trial court found in his favour in regard to his plea of wrongful dismissal. If he had only brought the suit within the period prescribed by S. 326 of the Act, he might possibly have got some relief from the Court. He however chose to wait till the decision of the State Government on his appeal and overstepped the limit of time to his own detriment.
### Response:
0
### Explanation:
The principle that the superior courts may not in their discretion issue the prerogative writs unless the applicant has exhausted all his remedies under the special Act does not apply to a suit.There is nothing in S. 58(1) which expressly or impliedly bars his right of suit. The provisions contained in S. 58(2) above would also not help him for the simple reason that the power which is vested in the State Government of suspending an employee pending the decision of the appeal can hardly be said to be a condition of the order of the Board. In any event, that power is given to the State Government for giving relief to the employee who has thus appealed against the rigour of the order of dismissal passed by the Board, against him. The employee may have been dismissed by the Board, in which case on looking at the prima facie aspect of the matter the State Government may as well come to the conclusion that the operation of the order of dismissal may be stayed and he be suspended instead, thus entitling him to subsistence allowance during the pendency of the appeal. If the appeal is eventually dismissed the order of dismissal by the Board will stand; if the appeal is allowed he will be entitled to continue in the employ and enjoy all the benefits and privileges of such employment, but he would not have to starve during the period that the appeal was pending before the State Government. The provisions of Section 58(2) have to be read along with those of Section 58 (1) and it cannot be urged that the power of suspension vested in the State Government is to be exercised in any other case except that of dismissal or removal of the employee by the Board. In the case of any other punishment an order of suspension passed by the State Government pending the decision of the appeal would only mean that during the pendency of the appeal the State Government is empowered to visit on him a higher punishment than what has meted out to him already by the Board. Such an absurd position could never have been thought of by the legislature and the only way in which S. 58 (1) can be read consistently with S. 58 (2) is to construe this power of suspension vested in the State Government to apply only to those cases where a higher punishment than suspension has been meted out by Board to the employee.Sec. 58 (2) merely prescribes the powers which the State Government may exercise in the matter of the appeal which has been filed by the employee against the order of the Board. The more filing of an appeal has not the effect of holding the order of the Board in abeyance or postponing the effect thereof until the decision of the appeal. Such a construction would on the other hand involve that even though a special resolution was passed by the Board dismissing or removing the employee he would continue to function as such and draw his salary pending the decision of his appeal, once he filed an appeal to the State Government as prescribed. We do not see any words in S. 58(1) and (2) which would suspend the operation of the order passed by the Board or render it ineffective by reason of the filing or the pendency of theis, therefore, clear that even though the order passed by the Board was subject to the right of appeal given to the employee in the manner aforesaid, the operation of the order was not suspended nor was its effect in any manner postponed till a later date by the mere filing of the appeal and it became effective from the date when it was communicated to the employee. The cause of action, if any, accrued to the employee on the date of such communication and the period of limitation commenced to run from that date.The original decree being thus operative what we are really concerned with is the commencement of the period of limitation as prescribed in the relevant statute and if the statute prescribes that it commences from the date of the accrual of the cause of action there is no getting behind these word in spite of the apparent iniquity of applying the same.The cause of action in the present case accrued to the appellant the moment the resolution of the Board was communicated to him and that was the date of the commencement of the limitation. The remedy, if any, by way of filing a suit against the Board in respect of his wrongful dismissal was available to him from that date and it was open to him to pursue that remedy within the period of limitation prescribed under Section 326 of the Act.
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Qatar Airways Vs. Shapoorji Pallonji & Company | of government." These observations tend to show that a trading activity carried on by the corporation is not a trading activity carried on by the State departmentally, nor is it a trading activity carried on by a State through its agents appointed in that behalf. (emphasis supplied).16. The same principle was reiterated in a subsequent judgment of the Supreme Court in Western Coalfields Ltd. vs. Special Area Development Authority, Korba & Ors. (AIR 1982 SC 697 )thus:The companies, which are incorporated under the Companies Act, have a corporate personality of their own, distinct from that of the Government of India. The lands and buildings are vested in and owned by the companies: the Government of India only owns the share capital. In Rustom Cavasjee Cooper v. Union of India : [1970]3SCR530, 555 : (AIR 1970 SC 56 at p. 584) (The Banks Nationalisation case) it was held:A company registered under the Companies Act is a legal person, separate and distinct from its individual members. Property of the Company is not the property of the shareholders. A shareholder has merely an interest in the Company arising under its Articles of Association, measured by a sum of money for the purpose of liability, and by a share in the profit.17. The judgments of the Supreme Court in Mirza Ali Akbar as well as in New Central Jute Mills Co. Ltd., clearly involved a situation where it was either a foreign State or a department of a foreign State that was being sued. In Mirza Ali Akbar the action was brought against the United Arab Republic and a department of Government of Egypt at Cairo on the Original Side of the Calcutta High Court . Similarly, the action in New Central Jute Mills Co. Ltd., in which proceedings eventually led upto the Supreme Court, was brought against an entity which was regarded having regard to the provisions of the Constitution of the German Democratic Republic as a department of the foreign State. The subsequent decision in Ethiopian Airlines now makes it abundantly clear that a corporate entity which carries on business or trade in India does not fall within the protection of the doctrine of sovereign immunity as embodied in Section 86 of the CPC. In the world today, corporate bodies both Indian and foreign carry on trade, commerce and business across geographical and national boundaries. Foreign companies carry on business in India. They bring investment, finance and trade. Indian companies carry on business abroad, taking with them investment and our enormous human resource base. The contractual and commercial obligations which they assume are governed by the discipline of the law. In their commercial and business operations such corporate entities cannot claim an immunity to civil actions. Qatar Airways carries on commercial airline operations. It brings and takes passengers and cargo to and from India. It operates offices, engages employees, solicits business and carries on activities of a commercial airline here, as abroad.18. The rationale for the emerging principle of law was recognised in the judgment of the Court of Appeal in the United Kingdom in Trendtex Trading Corporation Ltd. v. Central Bank of Nigeria (1997) 1 All ER 881)in the following dictum:It is perhaps right to consider first whether the narrower principle is in better conformity with contemporary international relationships than the doctrine of absolute immunity. It seems undeniable that it is. So long as sovereign institutions confined themselves to what may in general terms be described as the basic functions of government a total personal or individual immunity from suit was unobjectionable since the area in which it operated had its own inherent limits. The comity of nations was aided by such a doctrine confined as it was, broadly speaking, to acts which could be properly described as an exercise of sovereign power. The radical changes in political and economic and sociological concepts since the first world war have falsified the very foundations of the old doctrine of sovereign immunity. Governments everywhere engage in activities which although incidental in one way or another to the business of government are in themselves essentially commercial in their nature. To apply a universal doctrine of sovereign immunity to such activities is more likely to disserve than to conserve the comity of nations on the preservation of which the doctrine is founded. It is no longer necessary or desirable that what are truly matters of trading rather than of sovereignty should be hedged about with special exonerations and fenced off from the processes of the law by the attribution of a perverse and inappropriate notion of sovereign dignity.These principles have now been authoritatively recognised as being part of Indian jurisprudence in the Ethiopian Airlines decision of the Supreme Court. The judgment in Ethiopian Airlines has construed the observation in the judgment of the Division Bench of this Court in Kenya Airways as to the entitlement of Kenya Airways to immunity under Section 86 as a prima facie finding since in any event the Division Bench had come to the conclusion that the immunity had been waived by conduct.19. In the present case, without expressing any view on merits of the rival entitlements in the summary suit, we need only observe that the claim is founded on a purely contractual and commercial dealing between the Appellant and the Respondent. The Appellant is not a foreign State within the meaning of sub-Section (1) of Section 86. It has a distinct legal personality of its own which finds recognition in the contractual relationships into which it enters. Those contractual relationships occasioned by its business activities in India would be subject to the jurisdiction of a competent court in this country.20. For these reasons, we do not find that the learned Single Judge was in any error in holding that the suit was maintainable. The Union Government has been correct in its assertion that the question of permission of the Union Government did not arise and, as urged by ASG, that the provisions of Section 86 are not attracted. | 0[ds]17. The judgments of the Supreme Court in Mirza Ali Akbar as well as in New Central Jute Mills Co. Ltd., clearly involved a situation where it was either a foreign State or a department of a foreign State that was being sued. In Mirza Ali Akbar the action was brought against the United Arab Republic and a department of Government of Egypt at Cairo on the Original Side of the Calcutta High Court . Similarly, the action in New Central Jute Mills Co. Ltd., in which proceedings eventually led upto the Supreme Court, was brought against an entity which was regarded having regard to the provisions of the Constitution of the German Democratic Republic as a department of the foreign State. The subsequent decision in Ethiopian Airlines now makes it abundantly clear that a corporate entity which carries on business or trade in India does not fall within the protection of the doctrine of sovereign immunity as embodied in Section 86 of the CPC. In the world today, corporate bodies both Indian and foreign carry on trade, commerce and business across geographical and national boundaries. Foreign companies carry on business in India. They bring investment, finance and trade. Indian companies carry on business abroad, taking with them investment and our enormous human resource base. The contractual and commercial obligations which they assume are governed by the discipline of the law. In their commercial and business operations such corporate entities cannot claim an immunity to civil actions. Qatar Airways carries on commercial airline operations. It brings and takes passengers and cargo to and from India. It operates offices, engages employees, solicits business and carries on activities of a commercial airline here, as abroad.18. The rationale for the emerging principle of law was recognised in the judgment of the Court of Appeal in the United Kingdom in Trendtex Trading Corporation Ltd. v. Central Bank of Nigeria (1997) 1 All ER 881)in the following dictum:It is perhaps right to consider first whether the narrower principle is in better conformity with contemporary international relationships than the doctrine of absolute immunity. It seems undeniable that it is. So long as sovereign institutions confined themselves to what may in general terms be described as the basic functions of government a total personal or individual immunity from suit was unobjectionable since the area in which it operated had its own inherent limits. The comity of nations was aided by such a doctrine confined as it was, broadly speaking, to acts which could be properly described as an exercise of sovereign power. The radical changes in political and economic and sociological concepts since the first world war have falsified the very foundations of the old doctrine of sovereign immunity. Governments everywhere engage in activities which although incidental in one way or another to the business of government are in themselves essentially commercial in their nature. To apply a universal doctrine of sovereign immunity to such activities is more likely to disserve than to conserve the comity of nations on the preservation of which the doctrine is founded. It is no longer necessary or desirable that what are truly matters of trading rather than of sovereignty should be hedged about with special exonerations and fenced off from the processes of the law by the attribution of a perverse and inappropriate notion of sovereign dignity.These principles have now been authoritatively recognised as being part of Indian jurisprudence in the Ethiopian Airlines decision of the Supreme Court. The judgment in Ethiopian Airlines has construed the observation in the judgment of the Division Bench of this Court in Kenya Airways as to the entitlement of Kenya Airways to immunity under Section 86 as a prima facie finding since in any event the Division Bench had come to the conclusion that the immunity had been waived by conduct.19. In the present case, without expressing any view on merits of the rival entitlements in the summary suit, we need only observe that the claim is founded on a purely contractual and commercial dealing between the Appellant and the Respondent. The Appellant is not a foreign State within the meaning of(1) of Section 86. It has a distinct legal personality of its own which finds recognition in the contractual relationships into which it enters. Those contractual relationships occasioned by its business activities in India would be subject to the jurisdiction of a competent court in this country.20. For these reasons, we do not find that the learned Single Judge was in any error in holding that the suit was maintainable. The Union Government has been correct in its assertion that the question of permission of the Union Government did not arise and, as urged by ASG, that the provisions of Section 86 are not attracted. | 0 | 6,214 | 851 | ### 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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of government." These observations tend to show that a trading activity carried on by the corporation is not a trading activity carried on by the State departmentally, nor is it a trading activity carried on by a State through its agents appointed in that behalf. (emphasis supplied).16. The same principle was reiterated in a subsequent judgment of the Supreme Court in Western Coalfields Ltd. vs. Special Area Development Authority, Korba & Ors. (AIR 1982 SC 697 )thus:The companies, which are incorporated under the Companies Act, have a corporate personality of their own, distinct from that of the Government of India. The lands and buildings are vested in and owned by the companies: the Government of India only owns the share capital. In Rustom Cavasjee Cooper v. Union of India : [1970]3SCR530, 555 : (AIR 1970 SC 56 at p. 584) (The Banks Nationalisation case) it was held:A company registered under the Companies Act is a legal person, separate and distinct from its individual members. Property of the Company is not the property of the shareholders. A shareholder has merely an interest in the Company arising under its Articles of Association, measured by a sum of money for the purpose of liability, and by a share in the profit.17. The judgments of the Supreme Court in Mirza Ali Akbar as well as in New Central Jute Mills Co. Ltd., clearly involved a situation where it was either a foreign State or a department of a foreign State that was being sued. In Mirza Ali Akbar the action was brought against the United Arab Republic and a department of Government of Egypt at Cairo on the Original Side of the Calcutta High Court . Similarly, the action in New Central Jute Mills Co. Ltd., in which proceedings eventually led upto the Supreme Court, was brought against an entity which was regarded having regard to the provisions of the Constitution of the German Democratic Republic as a department of the foreign State. The subsequent decision in Ethiopian Airlines now makes it abundantly clear that a corporate entity which carries on business or trade in India does not fall within the protection of the doctrine of sovereign immunity as embodied in Section 86 of the CPC. In the world today, corporate bodies both Indian and foreign carry on trade, commerce and business across geographical and national boundaries. Foreign companies carry on business in India. They bring investment, finance and trade. Indian companies carry on business abroad, taking with them investment and our enormous human resource base. The contractual and commercial obligations which they assume are governed by the discipline of the law. In their commercial and business operations such corporate entities cannot claim an immunity to civil actions. Qatar Airways carries on commercial airline operations. It brings and takes passengers and cargo to and from India. It operates offices, engages employees, solicits business and carries on activities of a commercial airline here, as abroad.18. The rationale for the emerging principle of law was recognised in the judgment of the Court of Appeal in the United Kingdom in Trendtex Trading Corporation Ltd. v. Central Bank of Nigeria (1997) 1 All ER 881)in the following dictum:It is perhaps right to consider first whether the narrower principle is in better conformity with contemporary international relationships than the doctrine of absolute immunity. It seems undeniable that it is. So long as sovereign institutions confined themselves to what may in general terms be described as the basic functions of government a total personal or individual immunity from suit was unobjectionable since the area in which it operated had its own inherent limits. The comity of nations was aided by such a doctrine confined as it was, broadly speaking, to acts which could be properly described as an exercise of sovereign power. The radical changes in political and economic and sociological concepts since the first world war have falsified the very foundations of the old doctrine of sovereign immunity. Governments everywhere engage in activities which although incidental in one way or another to the business of government are in themselves essentially commercial in their nature. To apply a universal doctrine of sovereign immunity to such activities is more likely to disserve than to conserve the comity of nations on the preservation of which the doctrine is founded. It is no longer necessary or desirable that what are truly matters of trading rather than of sovereignty should be hedged about with special exonerations and fenced off from the processes of the law by the attribution of a perverse and inappropriate notion of sovereign dignity.These principles have now been authoritatively recognised as being part of Indian jurisprudence in the Ethiopian Airlines decision of the Supreme Court. The judgment in Ethiopian Airlines has construed the observation in the judgment of the Division Bench of this Court in Kenya Airways as to the entitlement of Kenya Airways to immunity under Section 86 as a prima facie finding since in any event the Division Bench had come to the conclusion that the immunity had been waived by conduct.19. In the present case, without expressing any view on merits of the rival entitlements in the summary suit, we need only observe that the claim is founded on a purely contractual and commercial dealing between the Appellant and the Respondent. The Appellant is not a foreign State within the meaning of sub-Section (1) of Section 86. It has a distinct legal personality of its own which finds recognition in the contractual relationships into which it enters. Those contractual relationships occasioned by its business activities in India would be subject to the jurisdiction of a competent court in this country.20. For these reasons, we do not find that the learned Single Judge was in any error in holding that the suit was maintainable. The Union Government has been correct in its assertion that the question of permission of the Union Government did not arise and, as urged by ASG, that the provisions of Section 86 are not attracted.
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17. The judgments of the Supreme Court in Mirza Ali Akbar as well as in New Central Jute Mills Co. Ltd., clearly involved a situation where it was either a foreign State or a department of a foreign State that was being sued. In Mirza Ali Akbar the action was brought against the United Arab Republic and a department of Government of Egypt at Cairo on the Original Side of the Calcutta High Court . Similarly, the action in New Central Jute Mills Co. Ltd., in which proceedings eventually led upto the Supreme Court, was brought against an entity which was regarded having regard to the provisions of the Constitution of the German Democratic Republic as a department of the foreign State. The subsequent decision in Ethiopian Airlines now makes it abundantly clear that a corporate entity which carries on business or trade in India does not fall within the protection of the doctrine of sovereign immunity as embodied in Section 86 of the CPC. In the world today, corporate bodies both Indian and foreign carry on trade, commerce and business across geographical and national boundaries. Foreign companies carry on business in India. They bring investment, finance and trade. Indian companies carry on business abroad, taking with them investment and our enormous human resource base. The contractual and commercial obligations which they assume are governed by the discipline of the law. In their commercial and business operations such corporate entities cannot claim an immunity to civil actions. Qatar Airways carries on commercial airline operations. It brings and takes passengers and cargo to and from India. It operates offices, engages employees, solicits business and carries on activities of a commercial airline here, as abroad.18. The rationale for the emerging principle of law was recognised in the judgment of the Court of Appeal in the United Kingdom in Trendtex Trading Corporation Ltd. v. Central Bank of Nigeria (1997) 1 All ER 881)in the following dictum:It is perhaps right to consider first whether the narrower principle is in better conformity with contemporary international relationships than the doctrine of absolute immunity. It seems undeniable that it is. So long as sovereign institutions confined themselves to what may in general terms be described as the basic functions of government a total personal or individual immunity from suit was unobjectionable since the area in which it operated had its own inherent limits. The comity of nations was aided by such a doctrine confined as it was, broadly speaking, to acts which could be properly described as an exercise of sovereign power. The radical changes in political and economic and sociological concepts since the first world war have falsified the very foundations of the old doctrine of sovereign immunity. Governments everywhere engage in activities which although incidental in one way or another to the business of government are in themselves essentially commercial in their nature. To apply a universal doctrine of sovereign immunity to such activities is more likely to disserve than to conserve the comity of nations on the preservation of which the doctrine is founded. It is no longer necessary or desirable that what are truly matters of trading rather than of sovereignty should be hedged about with special exonerations and fenced off from the processes of the law by the attribution of a perverse and inappropriate notion of sovereign dignity.These principles have now been authoritatively recognised as being part of Indian jurisprudence in the Ethiopian Airlines decision of the Supreme Court. The judgment in Ethiopian Airlines has construed the observation in the judgment of the Division Bench of this Court in Kenya Airways as to the entitlement of Kenya Airways to immunity under Section 86 as a prima facie finding since in any event the Division Bench had come to the conclusion that the immunity had been waived by conduct.19. In the present case, without expressing any view on merits of the rival entitlements in the summary suit, we need only observe that the claim is founded on a purely contractual and commercial dealing between the Appellant and the Respondent. The Appellant is not a foreign State within the meaning of(1) of Section 86. It has a distinct legal personality of its own which finds recognition in the contractual relationships into which it enters. Those contractual relationships occasioned by its business activities in India would be subject to the jurisdiction of a competent court in this country.20. For these reasons, we do not find that the learned Single Judge was in any error in holding that the suit was maintainable. The Union Government has been correct in its assertion that the question of permission of the Union Government did not arise and, as urged by ASG, that the provisions of Section 86 are not attracted.
|
Food Corporation Of India & Anr Vs. Yadav Engineer & Contractor | steps in the proceedings after appearance. Analysing that constitutes step in the proceedings, inter alia, it has been held that the filing of affidavits in answer to an application by the plaintiff for appointment of Receiver does not amount to taking a step in the proceedings [see Zalinoff v. Hammond, (1898) 2 Ch.D 92, referred to in Halsburys Laws of England, 4th Ed. Vol. 2, para 563, note 12]. Russell on Arbitration, 19th Edn., page 183, under the heading "steps held not to be in the proceedings", notes that filing affidavits in reply to plaintiffs affidavits in support of a motion for a Receiver in a partnership action is not a step in the proceedings. There are 5-6 other situations noticed by the author which, when individually analysed, would show that the steps taken with reference to interlocutory proceedings are ordinarily not held as steps in the proceedings. 32. Having thus critically examined both on principle and precedent the meaning to be given to the expression talling steps in the proceedings, we are clearly of the view that unless the step alleged to have been taken by the party seeking to enforce arbitration agreement is such as would display an unequivocal intention to proceed with the suit and acquiesce in the method of resolution of dispute adopted by the other party, namely, filing of the suit and thereby indicate that it has abandoned its right under the arbitration agreement to get the dispute resolved by arbitration, any other step would not disentitle the party from seeking relief under Section 34. It may be clearly emphasised that contesting the application for interim injunction or for appointment of Receiver or for interim relief by itself without anything more would not constitute such step as would disentitle the party to an order under Section 34 of the Act. 33. Reverting to the facts of this case it is crystal clear that the defendants had taken no steps in the proceedings which would disentitle them to a relief under Section 34. Suit was filed on June 1, 1981, impleading two defendants, Food Corporation of India, 1st defendant and Shyam Narain Nigam, 2nd defendant being the District Manager of the defendant Corporation. Along with the plaint a notice of motion was taken out for ex parte ad interim injunction. The Court issued notice on the notice of motion and made it returnable on the next day, i.e. June 2, 1981. When the matter was placed on Board of the Court on June 2, 1981, the proceedings show that the District Manager, 2nd defendant was served and appeared through Advocate Mr.N.K. Modi. Defendant 1 was shown absent with an endorsement the summons showing service not received back. Then comes what transpired on that day as disclosed in the proceedings of the day. The same may be extracted:"Mr.Modi filed Vakalatnama on behalf of defendant No. 2 and prayed for time for reply and arguments to the plaintiffs application for temporary injunction. Plaintiffs Counsel has no objection. Therefore, request is accepted. For reply arguments and awaiting service on 3rd June, 1981." On June 3, 1981, an application for stay of suit was made on behalf of the 1st defendant under Section 34. Ex facie, the proceedings did not disclose any step having been taken by the 1st defendant in the proceedings as would disentitle it to an order under Section 34. 2nd defendant was impleaded in his official capacity. Assuming the application of the 2nd defendant for filing reply to the interim injunction application also binds the 1st defendant though it was not served with the summons yet an application seeking time to file reply to an interim injunction application cannot be said to be a step in the proceedings as would display an unequivocal intention to proceed with the suit or would disclose that the defendants had acquiesced into the resolution of dispute by the Court or had abandoned the rights under the arbitration agreement. 34. The learned Judge also negatived the prayer for stay for the additional reason that the 1st defendant had not complied with another condition for relief under Section 34. The learned Judge found that in the application for stay the applicant had not stated that at the time when the proceedings were commenced it was ready and willing to do all things, necessary to the proper conduct of the arbitration and still remains ready and willing to do the same. The learned Judge held after referring to the averments in the application for stay that there is no averment to that effect. Plaintiff contesting the application had not raised this contention before the trial Court and the first appellate Court and that becomes evident from what the learned Judge has stated in the judgment that both the Courts have not taken into account this aspect of the case at all. Obviously the learned Judge ought not to have permitted the contention while hearing a revision petition under Section 115 of the Code of Civil Procedure. But apart from this, the finding of the learned Judge is contrary to record. The application for stay was read over to us and a copy was submitted for our perusal. In para 2 of the application it is clearly stated that ‘the defendant is ready and willing (ichhuk) for this purpose?. It appears that the original application was in Hindi. The important word used in the application is ichhuk which, it was agreed, would mean ready and willing. It is followed by the expression for this purpose which would imply that the 1st defendant was always ready and willing to proceed with the arbitration when commenced and is shown to be ready and willing at the time of applying for stay. Therefore, the 1st defendant had complied with the requirement of his readiness and willingness to go to arbitration. Therefore, the learned Judge was clearly in error in interfering with the order of the trial Court confirmed by the 1st appellate Court on this ground also. | 1[ds]10. Let the precedents rest for the time being and let an attempt be made to ascertain the underlying intendment in enacting the condition in Section 34 which prescribes a mode of enforcing the arbitration agreement to the effect that if a party to an arbitration agreement commences an action the other party to the agreement, if it desires to enforce the agreement, may seek stay of the suit before either filing written statement or taking other steps in the proceedings. A valid Arbitration agreement envisages resolution of dispute by a forum of the choice of the parties and displaces the State Courts. Ordinarily, a party to a valid arbitration agreement is not entitled unilaterally to commit a breach of the agreement or ignore the agreement. Now, if a party to an arbitration agreement has a dispute to be resolved arising out of the contract in which the arbitration agreement is incorporated and instead of invoking the arbitration agreement by inviting the parties to appoint the arbitrator it rushes to the Court in breach of the agreement and files a suit, the other party is undoubtedly entitled to enforce the agreement. True, the other party, is equally entitled to waive the benefit of the arbitration agreement. If the other party desires to waive the benefit of the agreement it can appear in the suit and contest the suit. Such conduct would demonstrably show that both the parties have waived the benefit flowing from the arbitration agreement of getting the dispute between them resolved by a forum of their choice. But if the first party in breach of the agreement files a suit the other party to the agreement must have an option and opportunity to enforce the arbitration agreement. Section 34 prescribes a mode and method of enforcing the arbitration agreement. When a party to the agreement has filed a suit in breach of the agreement and the other party to the agreement is dragged to the Court, by staying the suit at the instance of the other party so dragged to the Court the first party consequently would be forced to honour the arbitration agreement. But before the other party to the arbitration agreement is entitled to enforce the arbitration agreement by stay of the suit it must disclose its unequivocal intention to abide by the agreement and, therefore, Section 34 obliges such a party to ask for stay of the proceedings before such a party takes any steps which may unequivocally indicate the intention to waive the benefit of the arbitration agreement. Abandonment of a right to seek resolution of dispute as provided in the arbitration agreement must be clearly manifested by the step taken by such party. Once such unequivocal intention is declared or abandonment of the right to claim the benefit of the agreement becomes manifest from the conduct, such party would then not be entitled to enforce the arbitration agreement because there is thus a breach of the agreement by both the parties disentitling both to claim any benefit of the arbitration agreement. Section 34 provides that a party dragged to the Court as defendant by another party who is a party to the arbitration agreement must ask for stay of the proceedings before filing the written statement or before taking any other step in the proceedings. That party must simultaneously show its readiness and willingness to do all things necessary to the proper conduct of the arbitration. The Legislature by making it mandatory on the party seeking benefit of the arbitration agreement to apply for stay of the proceedings before filing the written statement or before taking any other steps in the proceedings unmistakably pointed out that filing of the written statement discloses such conduct on the part of the party as would unquestionably show that the party has abandoned its rights under the arbitration agreement and has disclosed an unequivocal intention to accept the forum of the Court for resolution of the dispute by waiving its right to get the dispute resolved by a forum contemplated by the arbitration agreement. When the party files written statement to the suit it discloses its defence, enters into a contest and invites the Court to adjudicate upon the dispute. Once the Court is invited to adjudicate upon the dispute there is no question of then enforcing an arbitration agreement by forcing the parties to resort to the forum of their choice as set out in the arbitration agreement11. Apart from filing written statement, what other step did the legislature contemplate as being taken in the proceedings which would disentitle the party to the suit from obtaining stay of the proceedings which would have the effect of enforcing the arbitration agreement? General words taking any other steps in the proceedings just follow the specific expression filing a written statement and both are used for achieving the same purpose. Therefore, the latter general expression must be construed ejusdem generis with the specific expression just proceeding to bring out the ambit of the latter. Expression ‘written statement is a term of specific cannotation ordinarily signifying a reply to the plaint filed by the plaintiff. Therefore, the expression written statement in Sction 34 signifies a specific thing, namely, filing an answer on merits to the plaint filed by the plaintiff. This specific word is followed by general words taking any other steps in the proceedings. The principle of ejusdem generis must help in finding out the import of the general words because it is a well established rule in the construction of statutes that general terms following particular ones apply to such persons or things as are ejusdem generis with these comprehended in the language of the Legislature14. Having examined the contention on the language of the statute, the setting in which it is placed, the underlying intendment and the purpose it seeks to serve, let us turn to precedents. There is a clear-cut cleavage and divergence of opinion amongst various High Courts. Allahabad, Bombay and later decisions of Calcutta High Court, Gujarat, Madhya Pradesh and Rajasthan High Courts have taken the view that appearing and contesting interlocutory application is not a step taken in the proceedings so as to disentitle the party from taking benefit of the arbitration agreement by seeking stay of the suit. On the other hand, earlier decisions of Calcutta High Court, Delhi and Madras High Courts have taken a contrary view32. Having thus critically examined both on principle and precedent the meaning to be given to the expression talling steps in the proceedings, we are clearly of the view that unless the step alleged to have been taken by the party seeking to enforce arbitration agreement is such as would display an unequivocal intention to proceed with the suit and acquiesce in the method of resolution of dispute adopted by the other party, namely, filing of the suit and thereby indicate that it has abandoned its right under the arbitration agreement to get the dispute resolved by arbitration, any other step would not disentitle the party from seeking relief under Section 34. It may be clearly emphasised that contesting the application for interim injunction or for appointment of Receiver or for interim relief by itself without anything more would not constitute such step as would disentitle the party to an order under Section 34 of the Act34. The learned Judge also negatived the prayer for stay for the additional reason that the 1st defendant had not complied with another condition for relief under Section 34. The learned Judge found that in the application for stay the applicant had not stated that at the time when the proceedings were commenced it was ready and willing to do all things, necessary to the proper conduct of the arbitration and still remains ready and willing to do the same. The learned Judge held after referring to the averments in the application for stay that there is no averment to that effect. Plaintiff contesting the application had not raised this contention before the trial Court and the first appellate Court and that becomes evident from what the learned Judge has stated in the judgment that both the Courts have not taken into account this aspect of the case at all. Obviously the learned Judge ought not to have permitted the contention while hearing a revision petition under Section 115 of theCode of Civil Procedure. But apart from this, the finding of the learned Judge is contrary to record. The application for stay was read over to us and a copy was submitted for our perusal. In para 2 of the application it is clearly stated that ‘the defendant is ready and willing (ichhuk) for this purpose?. It appears that the original application was in Hindi. The important word used in the application is ichhuk which, it was agreed, would mean ready and willing. It is followed by the expression for this purpose which would imply that the 1st defendant was always ready and willing to proceed with the arbitration when commenced and is shown to be ready and willing at the time of applying for stay. Therefore, the 1st defendant had complied with the requirement of his readiness and willingness to go to arbitration. Therefore, the learned Judge was clearly in error in interfering with the order of the trial Court confirmed by the 1st appellate Court on this ground also. | 1 | 10,192 | 1,651 | ### 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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steps in the proceedings after appearance. Analysing that constitutes step in the proceedings, inter alia, it has been held that the filing of affidavits in answer to an application by the plaintiff for appointment of Receiver does not amount to taking a step in the proceedings [see Zalinoff v. Hammond, (1898) 2 Ch.D 92, referred to in Halsburys Laws of England, 4th Ed. Vol. 2, para 563, note 12]. Russell on Arbitration, 19th Edn., page 183, under the heading "steps held not to be in the proceedings", notes that filing affidavits in reply to plaintiffs affidavits in support of a motion for a Receiver in a partnership action is not a step in the proceedings. There are 5-6 other situations noticed by the author which, when individually analysed, would show that the steps taken with reference to interlocutory proceedings are ordinarily not held as steps in the proceedings. 32. Having thus critically examined both on principle and precedent the meaning to be given to the expression talling steps in the proceedings, we are clearly of the view that unless the step alleged to have been taken by the party seeking to enforce arbitration agreement is such as would display an unequivocal intention to proceed with the suit and acquiesce in the method of resolution of dispute adopted by the other party, namely, filing of the suit and thereby indicate that it has abandoned its right under the arbitration agreement to get the dispute resolved by arbitration, any other step would not disentitle the party from seeking relief under Section 34. It may be clearly emphasised that contesting the application for interim injunction or for appointment of Receiver or for interim relief by itself without anything more would not constitute such step as would disentitle the party to an order under Section 34 of the Act. 33. Reverting to the facts of this case it is crystal clear that the defendants had taken no steps in the proceedings which would disentitle them to a relief under Section 34. Suit was filed on June 1, 1981, impleading two defendants, Food Corporation of India, 1st defendant and Shyam Narain Nigam, 2nd defendant being the District Manager of the defendant Corporation. Along with the plaint a notice of motion was taken out for ex parte ad interim injunction. The Court issued notice on the notice of motion and made it returnable on the next day, i.e. June 2, 1981. When the matter was placed on Board of the Court on June 2, 1981, the proceedings show that the District Manager, 2nd defendant was served and appeared through Advocate Mr.N.K. Modi. Defendant 1 was shown absent with an endorsement the summons showing service not received back. Then comes what transpired on that day as disclosed in the proceedings of the day. The same may be extracted:"Mr.Modi filed Vakalatnama on behalf of defendant No. 2 and prayed for time for reply and arguments to the plaintiffs application for temporary injunction. Plaintiffs Counsel has no objection. Therefore, request is accepted. For reply arguments and awaiting service on 3rd June, 1981." On June 3, 1981, an application for stay of suit was made on behalf of the 1st defendant under Section 34. Ex facie, the proceedings did not disclose any step having been taken by the 1st defendant in the proceedings as would disentitle it to an order under Section 34. 2nd defendant was impleaded in his official capacity. Assuming the application of the 2nd defendant for filing reply to the interim injunction application also binds the 1st defendant though it was not served with the summons yet an application seeking time to file reply to an interim injunction application cannot be said to be a step in the proceedings as would display an unequivocal intention to proceed with the suit or would disclose that the defendants had acquiesced into the resolution of dispute by the Court or had abandoned the rights under the arbitration agreement. 34. The learned Judge also negatived the prayer for stay for the additional reason that the 1st defendant had not complied with another condition for relief under Section 34. The learned Judge found that in the application for stay the applicant had not stated that at the time when the proceedings were commenced it was ready and willing to do all things, necessary to the proper conduct of the arbitration and still remains ready and willing to do the same. The learned Judge held after referring to the averments in the application for stay that there is no averment to that effect. Plaintiff contesting the application had not raised this contention before the trial Court and the first appellate Court and that becomes evident from what the learned Judge has stated in the judgment that both the Courts have not taken into account this aspect of the case at all. Obviously the learned Judge ought not to have permitted the contention while hearing a revision petition under Section 115 of the Code of Civil Procedure. But apart from this, the finding of the learned Judge is contrary to record. The application for stay was read over to us and a copy was submitted for our perusal. In para 2 of the application it is clearly stated that ‘the defendant is ready and willing (ichhuk) for this purpose?. It appears that the original application was in Hindi. The important word used in the application is ichhuk which, it was agreed, would mean ready and willing. It is followed by the expression for this purpose which would imply that the 1st defendant was always ready and willing to proceed with the arbitration when commenced and is shown to be ready and willing at the time of applying for stay. Therefore, the 1st defendant had complied with the requirement of his readiness and willingness to go to arbitration. Therefore, the learned Judge was clearly in error in interfering with the order of the trial Court confirmed by the 1st appellate Court on this ground also.
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do all things necessary to the proper conduct of the arbitration. The Legislature by making it mandatory on the party seeking benefit of the arbitration agreement to apply for stay of the proceedings before filing the written statement or before taking any other steps in the proceedings unmistakably pointed out that filing of the written statement discloses such conduct on the part of the party as would unquestionably show that the party has abandoned its rights under the arbitration agreement and has disclosed an unequivocal intention to accept the forum of the Court for resolution of the dispute by waiving its right to get the dispute resolved by a forum contemplated by the arbitration agreement. When the party files written statement to the suit it discloses its defence, enters into a contest and invites the Court to adjudicate upon the dispute. Once the Court is invited to adjudicate upon the dispute there is no question of then enforcing an arbitration agreement by forcing the parties to resort to the forum of their choice as set out in the arbitration agreement11. Apart from filing written statement, what other step did the legislature contemplate as being taken in the proceedings which would disentitle the party to the suit from obtaining stay of the proceedings which would have the effect of enforcing the arbitration agreement? General words taking any other steps in the proceedings just follow the specific expression filing a written statement and both are used for achieving the same purpose. Therefore, the latter general expression must be construed ejusdem generis with the specific expression just proceeding to bring out the ambit of the latter. Expression ‘written statement is a term of specific cannotation ordinarily signifying a reply to the plaint filed by the plaintiff. Therefore, the expression written statement in Sction 34 signifies a specific thing, namely, filing an answer on merits to the plaint filed by the plaintiff. This specific word is followed by general words taking any other steps in the proceedings. The principle of ejusdem generis must help in finding out the import of the general words because it is a well established rule in the construction of statutes that general terms following particular ones apply to such persons or things as are ejusdem generis with these comprehended in the language of the Legislature14. Having examined the contention on the language of the statute, the setting in which it is placed, the underlying intendment and the purpose it seeks to serve, let us turn to precedents. There is a clear-cut cleavage and divergence of opinion amongst various High Courts. Allahabad, Bombay and later decisions of Calcutta High Court, Gujarat, Madhya Pradesh and Rajasthan High Courts have taken the view that appearing and contesting interlocutory application is not a step taken in the proceedings so as to disentitle the party from taking benefit of the arbitration agreement by seeking stay of the suit. On the other hand, earlier decisions of Calcutta High Court, Delhi and Madras High Courts have taken a contrary view32. Having thus critically examined both on principle and precedent the meaning to be given to the expression talling steps in the proceedings, we are clearly of the view that unless the step alleged to have been taken by the party seeking to enforce arbitration agreement is such as would display an unequivocal intention to proceed with the suit and acquiesce in the method of resolution of dispute adopted by the other party, namely, filing of the suit and thereby indicate that it has abandoned its right under the arbitration agreement to get the dispute resolved by arbitration, any other step would not disentitle the party from seeking relief under Section 34. It may be clearly emphasised that contesting the application for interim injunction or for appointment of Receiver or for interim relief by itself without anything more would not constitute such step as would disentitle the party to an order under Section 34 of the Act34. The learned Judge also negatived the prayer for stay for the additional reason that the 1st defendant had not complied with another condition for relief under Section 34. The learned Judge found that in the application for stay the applicant had not stated that at the time when the proceedings were commenced it was ready and willing to do all things, necessary to the proper conduct of the arbitration and still remains ready and willing to do the same. The learned Judge held after referring to the averments in the application for stay that there is no averment to that effect. Plaintiff contesting the application had not raised this contention before the trial Court and the first appellate Court and that becomes evident from what the learned Judge has stated in the judgment that both the Courts have not taken into account this aspect of the case at all. Obviously the learned Judge ought not to have permitted the contention while hearing a revision petition under Section 115 of theCode of Civil Procedure. But apart from this, the finding of the learned Judge is contrary to record. The application for stay was read over to us and a copy was submitted for our perusal. In para 2 of the application it is clearly stated that ‘the defendant is ready and willing (ichhuk) for this purpose?. It appears that the original application was in Hindi. The important word used in the application is ichhuk which, it was agreed, would mean ready and willing. It is followed by the expression for this purpose which would imply that the 1st defendant was always ready and willing to proceed with the arbitration when commenced and is shown to be ready and willing at the time of applying for stay. Therefore, the 1st defendant had complied with the requirement of his readiness and willingness to go to arbitration. Therefore, the learned Judge was clearly in error in interfering with the order of the trial Court confirmed by the 1st appellate Court on this ground also.
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Ramsaran Das And Bros Vs. Commercial Tax Officer, Calacuttaand Others | original order of the Taxing Officer. It is claimed on behalf of the appellant that that decision completely covers the points in controversy in the present case also. It is contended that that was also a case, like the present one, of commission agents who had been charged sales tax. There are several reasons why the authority of that decision cannot be invoked in favour of the appellant on the preliminary question whether this Court should at all entertain the appeal. In that case, in the reported decision of this Court, no such question, as we have to determine, had been raised. Apparently; counsel for both the parties went anxious to have the final determination of the controversy by this Court. Secondly, there were special circumstances in that case, which are not present in the instant case. The most outstanding feature of that case was, as pointed out by this Court, that the Assessing Authority had not exercised its own judgment in the matter of the assessment in question. The Assessing Authority had, contrary to its own judgment, taken instructions from the Assistant Commissioner and followed those directions, This Court had also pointed out that even though the Assessing Authority was satisfied on the materials placed by the assessee that he was not liable to pay sales tax, he carried out the directions of a superior officer. This Court further pointed out that there had been complete failure of justice on account of the fact that the assessee had been given no opportunity to meet the points made by the Assistant Commissioner, and the assessment order was made behind his back. The Court was led to make the following very significant observations:"The procedure adopted was, to say the least, unfair and was calculated to undermine the confidence of the public in the impartial and fair administration of the sales-tax Department concerned. We would have, simply on this ground, set aside the assessment order made by the first respondent and remanded the matter back to him for his due consideration in accordance with law; but as the matter is old and a remand would lead to unnecessary harassment of the appellants, we have preferred to deal with the appeal on merits." (p. 560).It was in those circumstances that this Court went into the whole controversy on its merits and determined the appear in favour of the assessee. That case, therefore, is no precedent in favour of the appellant.4. The next case relied upon by the counsel for the appellant is State of Bombay v. M/s. Ratilal Vadilal Bros., AIR 1961 SC 1106 . That was a case in which the State of Bombay had appealed to this Court on special leave against the order of the Sales Tax Tribunal, Bombay, by which the Tribunal had allowed the appeal before it and set aside the order of the Collector of Sales Tax, under the Bombay Sales Tax Act. The respondents in that case were commission agents doing business as clearing and transport contractors. They had applied to the Collector of Sales Tax, Bombay, for the determination of the question if they could be called dealers within the meaning of the Act, after giving the facts and circumstances of their case. In that case also no steps had been taken to have a reference made to the High Court, and this Court observed that it had been frequently noticed that appeals had been filed to this Court without exhausting all the remedies open to appellants and that ordinarily this Court would not allow the High Courts to be bypassed and the appropriate course for an appellant was to exhaust all his remedies before invoking the jurisdiction of this Court under Art. 136 of the Constitution. But this Court went into the merits of the case because both the parties invited the court to do so and did not insist upon the preliminary issue being decided. It is clear, therefore, that neither of the two cases relied upon by counsel for the appellant is an authority for the proposition that he can come up to this Court on special leave directly against the judgment of the Assessing Authority without exhausting all his remedies under the Act.5. There are cases in which this Court was moved directly against the order of assessment, after ignoring the orders of the High Court refusing to have a reference made, or deciding the point referred, against the assessee. In those circumstances, this Court refused to entertain the appeal and held that the appellant was not entitled to invoke the jurisdiction of this Court under Art. 136, without coming up in appeal from the final decision inter parts given by the High Court. The latest decision of this Court on that question is the case of Chandi Prasad Chokhani v. State of Bihar, C. A. Nos. 170, 172 of 1959 D/- 24-4-1961 : (AIR 1961 SC 1708 ). In that case, the previous decisions of this Court have all been considered in extenso. We are in entire agreement with what has been laid down by this Court in trial batch of cases. Another decision of a Division Bench of this Court is the case of Kanhaiyalal Lohia v. Commissioner of Income-tax, West Bengal, C. A. Nos. 347-350 of 1960 D/- 17-7-1961 : (AIR 1962 SC 1323 ). In that case, this Court has taken the same view and dismissed the appeal as incompetent.6. The present case is a much simpler one, in which there are no special circumstances and in which the facts have not yet been finally determined. It may also be noted that the appellant has not challenged the vires of the Act or of any other law. We, therefore, think that we should dismiss this appeal as incompetent, without expressing any opinion on the merits of the controversy. It will be open to the appellant to take such steps as it may be advised, in pursuing such remedies as may be available to it under the law. | 0[ds]. It is clear, therefore, that neither of the two cases relied upon by counsel for the appellant is an authority for the proposition that he can come up to this Court on special leave directly against the judgment of the Assessing Authority without exhausting all his remedies under the Act.5. There are cases in which this Court was moved directly against the order of assessment, after ignoring the orders of the High Court refusing to have a reference made, or deciding the point referred, against the assessee. In those circumstances, this Court refused to entertain the appeal and held that the appellant was not entitled to invoke the jurisdiction of this Court under Art. 136, without coming up in appeal from the final decision inter parts given by the High Court. The latest decision of this Court on that question is the case of Chandi Prasad Chokhani v. State of Bihar, C. A. Nos. 170, 172 of 1959 D/- 24-4-1961 : (AIR 1961 SC 1708 ). In that case, the previous decisions of this Court have all been considered in extenso. We are in entire agreement with what has been laid down by this Court in trial batch of cases. Another decision of a Division Bench of this Court is the case of Kanhaiyalal Lohia v. Commissioner of Income-tax, West Bengal, C. A. Nos. 347-350 of 1960 D/- 17-7-1961 : (AIR 1962 SC 1323 ). In that case, this Court has taken the same view and dismissed the appeal as incompetent.6. The present case is a much simpler one, in which there are no special circumstances and in which the facts have not yet been finally determined. It may also be noted that the appellant has not challenged the vires of the Act or of any other law. We, therefore, think that we should dismiss this appeal as incompetent, without expressing any opinion on the merits of the controversy. It will be open to the appellant to take such steps as it may be advised, in pursuing such remedies as may be available to it under the law. | 0 | 1,931 | 388 | ### 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:
original order of the Taxing Officer. It is claimed on behalf of the appellant that that decision completely covers the points in controversy in the present case also. It is contended that that was also a case, like the present one, of commission agents who had been charged sales tax. There are several reasons why the authority of that decision cannot be invoked in favour of the appellant on the preliminary question whether this Court should at all entertain the appeal. In that case, in the reported decision of this Court, no such question, as we have to determine, had been raised. Apparently; counsel for both the parties went anxious to have the final determination of the controversy by this Court. Secondly, there were special circumstances in that case, which are not present in the instant case. The most outstanding feature of that case was, as pointed out by this Court, that the Assessing Authority had not exercised its own judgment in the matter of the assessment in question. The Assessing Authority had, contrary to its own judgment, taken instructions from the Assistant Commissioner and followed those directions, This Court had also pointed out that even though the Assessing Authority was satisfied on the materials placed by the assessee that he was not liable to pay sales tax, he carried out the directions of a superior officer. This Court further pointed out that there had been complete failure of justice on account of the fact that the assessee had been given no opportunity to meet the points made by the Assistant Commissioner, and the assessment order was made behind his back. The Court was led to make the following very significant observations:"The procedure adopted was, to say the least, unfair and was calculated to undermine the confidence of the public in the impartial and fair administration of the sales-tax Department concerned. We would have, simply on this ground, set aside the assessment order made by the first respondent and remanded the matter back to him for his due consideration in accordance with law; but as the matter is old and a remand would lead to unnecessary harassment of the appellants, we have preferred to deal with the appeal on merits." (p. 560).It was in those circumstances that this Court went into the whole controversy on its merits and determined the appear in favour of the assessee. That case, therefore, is no precedent in favour of the appellant.4. The next case relied upon by the counsel for the appellant is State of Bombay v. M/s. Ratilal Vadilal Bros., AIR 1961 SC 1106 . That was a case in which the State of Bombay had appealed to this Court on special leave against the order of the Sales Tax Tribunal, Bombay, by which the Tribunal had allowed the appeal before it and set aside the order of the Collector of Sales Tax, under the Bombay Sales Tax Act. The respondents in that case were commission agents doing business as clearing and transport contractors. They had applied to the Collector of Sales Tax, Bombay, for the determination of the question if they could be called dealers within the meaning of the Act, after giving the facts and circumstances of their case. In that case also no steps had been taken to have a reference made to the High Court, and this Court observed that it had been frequently noticed that appeals had been filed to this Court without exhausting all the remedies open to appellants and that ordinarily this Court would not allow the High Courts to be bypassed and the appropriate course for an appellant was to exhaust all his remedies before invoking the jurisdiction of this Court under Art. 136 of the Constitution. But this Court went into the merits of the case because both the parties invited the court to do so and did not insist upon the preliminary issue being decided. It is clear, therefore, that neither of the two cases relied upon by counsel for the appellant is an authority for the proposition that he can come up to this Court on special leave directly against the judgment of the Assessing Authority without exhausting all his remedies under the Act.5. There are cases in which this Court was moved directly against the order of assessment, after ignoring the orders of the High Court refusing to have a reference made, or deciding the point referred, against the assessee. In those circumstances, this Court refused to entertain the appeal and held that the appellant was not entitled to invoke the jurisdiction of this Court under Art. 136, without coming up in appeal from the final decision inter parts given by the High Court. The latest decision of this Court on that question is the case of Chandi Prasad Chokhani v. State of Bihar, C. A. Nos. 170, 172 of 1959 D/- 24-4-1961 : (AIR 1961 SC 1708 ). In that case, the previous decisions of this Court have all been considered in extenso. We are in entire agreement with what has been laid down by this Court in trial batch of cases. Another decision of a Division Bench of this Court is the case of Kanhaiyalal Lohia v. Commissioner of Income-tax, West Bengal, C. A. Nos. 347-350 of 1960 D/- 17-7-1961 : (AIR 1962 SC 1323 ). In that case, this Court has taken the same view and dismissed the appeal as incompetent.6. The present case is a much simpler one, in which there are no special circumstances and in which the facts have not yet been finally determined. It may also be noted that the appellant has not challenged the vires of the Act or of any other law. We, therefore, think that we should dismiss this appeal as incompetent, without expressing any opinion on the merits of the controversy. It will be open to the appellant to take such steps as it may be advised, in pursuing such remedies as may be available to it under the law.
### Response:
0
### Explanation:
. It is clear, therefore, that neither of the two cases relied upon by counsel for the appellant is an authority for the proposition that he can come up to this Court on special leave directly against the judgment of the Assessing Authority without exhausting all his remedies under the Act.5. There are cases in which this Court was moved directly against the order of assessment, after ignoring the orders of the High Court refusing to have a reference made, or deciding the point referred, against the assessee. In those circumstances, this Court refused to entertain the appeal and held that the appellant was not entitled to invoke the jurisdiction of this Court under Art. 136, without coming up in appeal from the final decision inter parts given by the High Court. The latest decision of this Court on that question is the case of Chandi Prasad Chokhani v. State of Bihar, C. A. Nos. 170, 172 of 1959 D/- 24-4-1961 : (AIR 1961 SC 1708 ). In that case, the previous decisions of this Court have all been considered in extenso. We are in entire agreement with what has been laid down by this Court in trial batch of cases. Another decision of a Division Bench of this Court is the case of Kanhaiyalal Lohia v. Commissioner of Income-tax, West Bengal, C. A. Nos. 347-350 of 1960 D/- 17-7-1961 : (AIR 1962 SC 1323 ). In that case, this Court has taken the same view and dismissed the appeal as incompetent.6. The present case is a much simpler one, in which there are no special circumstances and in which the facts have not yet been finally determined. It may also be noted that the appellant has not challenged the vires of the Act or of any other law. We, therefore, think that we should dismiss this appeal as incompetent, without expressing any opinion on the merits of the controversy. It will be open to the appellant to take such steps as it may be advised, in pursuing such remedies as may be available to it under the law.
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B.R. Mehta Vs. Smt. Atma Devi & Ors | which highlights that such oral admission must be definite and unambiguous and must be satisfactorily established. In our opinion, from the fact that the wife of the tenant was allotted a temporary Government accommodation, it cannot be said that there was admission by virtue of which the tenant could lose his tenancy that the wife has acquired a house which is available to the husband over which the husband has a domain which could be a substitute to the tenanted premises. In that view of the matter we are of the opinion that there was no admission at all. 6. Our attention was drawn to certain observations of Bhagwati, J., as the learned Chief Justice then was, in Phiroze Bamanji Desai vs. Chandrakant M. Patel and Others, (1974) 3 S.C.R. 267), were dealing with certain facts whether premises given on a licence could be considered in considering the bona fide requirement of the landlord to the allotment or acquisition. In our opinion, this principle is wholly irrelevant for the point in controversy before this Court. We are not concerned whether there was ground for bona fide requirement of the landlord for which a suit had been filed and which is pending appeal. This fact of acquisition or allotment of flat in the name of wife (which incidentally she has lost having given up her job) can be in certain circumstances a factor in Judging the bona fide needs of the landlord; but the same indisputably cannot be any ground to evict the tenant on the ground that he has acquired vacant possession or allotted residence in terms of Clause (h) of Section 14(1). Mr. Rohtagi drew our attention to certain observations of this Court in Gajanan Dattatraya vs. Sherbanu Hosang Patel and Others, (1976 1 S.C.R. 535), where this Court held that the tenant?s liability to eviction arises when the fact of unlawful subletting is proved. The fact that subsequently the other tenant had left the premises does not cure the mischief done. Mr. Rohtagi placing this decision tried to urge before us that the allotment itself of a residence or acquisition of a residence by the tenant or the wife of the tenant was sufficient to attract Clause (h) of Section 14(1) of the Act. The fact that subsequently the tenant had left the premises was irrelevant and did not affect the position. It was further submitted that the tenant had acquired a premises or allotted a residence which could be considered to be so in terms of Clause (h) of Section 14(1) and but the flat in question allotted to the wife of the tenant was not by any stretch of imagination be considered to be a matrimonial home. In England the rights of the spouses be husband and wife to the matrimonial home are now governed by the pro-visions of Matrimonial Homes Act, 1967 Halsbury?s Laws of England, Fourth Edition Vol. 22 page 650 deals with the rights of occupation of matrimonial home and paragraph 1047 deals and provides that where one spouse is entitled to occupy a dwelling house by virtue of any estate or interest or contract or by virtue of any enactment giving him or her the right to remain in occupa-tion, and the other spouse is not so entitled, then the spouse not so entitled has the certain rights (known as ?rights of occupation?) that is to say if in occupation, a right not be evicted or excluded from the dwelling house or any part of it by the other spouse except with the leave of the Court given by an order if not in occupation, a right with the leave of the Court so given to enter into and occupy the dwelling house. But such rights are not granted in India though it may be in that with change of situation and complex problems arising it is high time to give the wife or the spouse a right of occupation in a truly matrimonial home, in case of marriage breaking up or in case of strain-ed relationship between the husband and the wife. We, however, cannot for the purpose of this case get much assistance from the principle adumbrated in paragraph 1047 of Halsbury?s Laws of England. In England cases before 1968 established that occupation of the matrimonial home by a tenant?s wife after the tenant had left counts as occupation by the tenant so as to preserve the statutory tenancy for as long as the marriage itself subsists. In those circumstances in England the landlord could not properly be granted an order for possession against the husband unless there were available grounds for possession against both husband and wife. The tenant cannot abandon his rights while his wife remains; nor can the landlord evict the wife even if the tenant consents or purports to surrender his statutory tenancy. This is the result of the case law in England and much social awareness and the case laws have been given statutory expression in the Matrimonial Homes Act, 1967. We have no such law. The premises in question which the wife occupied was indisputably not the matrimonial home. It is nobody?s case. The husband would not, therefore, have any statutory or legal right against the Government to use and enjoy the allotted premises to the wife of the tenant because of her job. Looked at any point of view, the tenant cannot be made to lose his tenancy because of wife acquiring possession of a flat or allotment of a flat because of her official duties over which the husband has no right or domain or occupation. 7. In the premises we are unable to sustain the judgment under appeal. To complete the story the wife of the tenant has resigned and has joined the husband at 2/14, Kalkaji Extension, New Delhi. We hope there will be no more strained relationship in the family. Hereafter they will live happily provided landlord the permits so. We shall try to ensure that they so permit. | 1[ds]We are unable to accept the view of the Delhi High Court, We have noted the provisions. The purpose of the Act is to control rents and eviction, in other words, to control unreasonable evictions and to ensure that in an atmosphere of acute shortage of accommodation, there is proper enjoyment of available spaces by those who want and deserve. In other words, to ensure that there is no unreasonable and unnecessary spaces in the hands of one tenant and other tenants and landlords? need of occupation of spaces remains unsatisfied, Clause (h) of Section 14(1) is an attempt in a way to ration out accommoda-tion between tenants and landlords. Looked at from that point of view unless acquisition of a premises or a flat or allotment of a premises or part of a premises by the tenant in which he has domain which he can reasonably and alternatively use as a substitute for the place he is using in the tenancy it cannot lead to a forfeiture of his right to occupy his tenanted premises. The case would be otherwise, however, if a tenant comes into possession of a pre-mises or is allotted a piece of residence or acquires vacant possession of the premises then such a tenant cannot prevent, if other conditions are fulfilled under Section 14(1)(h) of the Act being liable to forfeiture of his tenancyHaving considered the averments of the parties on the point at issue it was held in that case that the respondent had through his wife acquired vacant possession of a residence in Delhi and in that view of the matter was held not entitled to retain old tenant-ed premises. Mr. Avadh Bihari Rohtagi, learned Counsel strenuously contended before us that this proposition that acquisition of a flat by the wife was acquisition by the tenant and such acquisition in all circumstances would be within the mischief of Section 14(1)(h) of the Act and would disentitle the tenant to retain his flat in question. We are unable to accept this reading of said Act. The said decision rested on the facts of that case. There in that case, this Court has found in a case that the respondent?s wife had purchased a flat in Saket and that further found that the flat was available to the respon-dent. In those circumstances it was held that there was acquisition of vacant possession of a residence and as such Section 14(1)(h) of the Act would be attracted. It cannot however be laid down as a general proposition of law that acquisition of flat by the wife in all circumstances would amount to acquisition of flat by the tenantTenancy is a right vested in the tenant. The main purpose of the Act is the protection of tenants from eviction. The various provisos to Sub-section (1) of Section 14 laid down the exception to this rule. The learned Judge observed that when proviso (h) made tenant liable to eviction, its effect was to divest the tenant of his right of tenancy. The intention of the legislature in divesting the tenant of his right was based upon the fact that the tenant had legally acquired another residence as of right. There is no law according to which husband and wife could be deemed to be one person. Therefore, the correct position must be that if a wife or a husband vice-versa acquires a property then the other spouse if he/she is the tenant and by such acquisition by the other spouse of a tenant as a legal right to go there and have right of stay and then only can such acquisition or allotment of premises would disentitle or attract the provisions of Clause (h) of Section 14(1), otherwise the whole purpose would be defeated. In other words if for all practi-cal and real sense the tenant, acquired, built or allotted another residence then his need for the old tenanted residence goes and the tenant loses his right to retain his tenanted premises. That is the rationale behind the schemeIn our opinion, this principle is wholly irrelevant for the point in controversy before this Court. We are not concerned whether there was ground for bona fide requirement of the landlord for which a suit had been filed and which is pending appeal. This fact of acquisition or allotment of flat in the name of wife (which incidentally she has lost having given up her job) can be in certain circumstances a factor in Judging the bona fide needs of the landlord; but the same indisputably cannot be any ground to evict the tenant on the ground that he has acquired vacant possession or allotted residence in terms of Clause (h) of Section 14(1)7. In the premises we are unable to sustain the judgment under appeal. To complete the story the wife of the tenant has resigned and has joined the husband at 2/14, Kalkaji Extension, New Delhi. We hope there will be no more strained relationship in the family. Hereafter they will live happily provided landlord the permits so. We shall try to ensure that they so permit. | 1 | 4,248 | 946 | ### Instruction:
Decide if the appeal in the case proceeding is more likely to be successful (1) or unsuccessful (0), and then justify your decision by focusing on essential sentences in the document.
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which highlights that such oral admission must be definite and unambiguous and must be satisfactorily established. In our opinion, from the fact that the wife of the tenant was allotted a temporary Government accommodation, it cannot be said that there was admission by virtue of which the tenant could lose his tenancy that the wife has acquired a house which is available to the husband over which the husband has a domain which could be a substitute to the tenanted premises. In that view of the matter we are of the opinion that there was no admission at all. 6. Our attention was drawn to certain observations of Bhagwati, J., as the learned Chief Justice then was, in Phiroze Bamanji Desai vs. Chandrakant M. Patel and Others, (1974) 3 S.C.R. 267), were dealing with certain facts whether premises given on a licence could be considered in considering the bona fide requirement of the landlord to the allotment or acquisition. In our opinion, this principle is wholly irrelevant for the point in controversy before this Court. We are not concerned whether there was ground for bona fide requirement of the landlord for which a suit had been filed and which is pending appeal. This fact of acquisition or allotment of flat in the name of wife (which incidentally she has lost having given up her job) can be in certain circumstances a factor in Judging the bona fide needs of the landlord; but the same indisputably cannot be any ground to evict the tenant on the ground that he has acquired vacant possession or allotted residence in terms of Clause (h) of Section 14(1). Mr. Rohtagi drew our attention to certain observations of this Court in Gajanan Dattatraya vs. Sherbanu Hosang Patel and Others, (1976 1 S.C.R. 535), where this Court held that the tenant?s liability to eviction arises when the fact of unlawful subletting is proved. The fact that subsequently the other tenant had left the premises does not cure the mischief done. Mr. Rohtagi placing this decision tried to urge before us that the allotment itself of a residence or acquisition of a residence by the tenant or the wife of the tenant was sufficient to attract Clause (h) of Section 14(1) of the Act. The fact that subsequently the tenant had left the premises was irrelevant and did not affect the position. It was further submitted that the tenant had acquired a premises or allotted a residence which could be considered to be so in terms of Clause (h) of Section 14(1) and but the flat in question allotted to the wife of the tenant was not by any stretch of imagination be considered to be a matrimonial home. In England the rights of the spouses be husband and wife to the matrimonial home are now governed by the pro-visions of Matrimonial Homes Act, 1967 Halsbury?s Laws of England, Fourth Edition Vol. 22 page 650 deals with the rights of occupation of matrimonial home and paragraph 1047 deals and provides that where one spouse is entitled to occupy a dwelling house by virtue of any estate or interest or contract or by virtue of any enactment giving him or her the right to remain in occupa-tion, and the other spouse is not so entitled, then the spouse not so entitled has the certain rights (known as ?rights of occupation?) that is to say if in occupation, a right not be evicted or excluded from the dwelling house or any part of it by the other spouse except with the leave of the Court given by an order if not in occupation, a right with the leave of the Court so given to enter into and occupy the dwelling house. But such rights are not granted in India though it may be in that with change of situation and complex problems arising it is high time to give the wife or the spouse a right of occupation in a truly matrimonial home, in case of marriage breaking up or in case of strain-ed relationship between the husband and the wife. We, however, cannot for the purpose of this case get much assistance from the principle adumbrated in paragraph 1047 of Halsbury?s Laws of England. In England cases before 1968 established that occupation of the matrimonial home by a tenant?s wife after the tenant had left counts as occupation by the tenant so as to preserve the statutory tenancy for as long as the marriage itself subsists. In those circumstances in England the landlord could not properly be granted an order for possession against the husband unless there were available grounds for possession against both husband and wife. The tenant cannot abandon his rights while his wife remains; nor can the landlord evict the wife even if the tenant consents or purports to surrender his statutory tenancy. This is the result of the case law in England and much social awareness and the case laws have been given statutory expression in the Matrimonial Homes Act, 1967. We have no such law. The premises in question which the wife occupied was indisputably not the matrimonial home. It is nobody?s case. The husband would not, therefore, have any statutory or legal right against the Government to use and enjoy the allotted premises to the wife of the tenant because of her job. Looked at any point of view, the tenant cannot be made to lose his tenancy because of wife acquiring possession of a flat or allotment of a flat because of her official duties over which the husband has no right or domain or occupation. 7. In the premises we are unable to sustain the judgment under appeal. To complete the story the wife of the tenant has resigned and has joined the husband at 2/14, Kalkaji Extension, New Delhi. We hope there will be no more strained relationship in the family. Hereafter they will live happily provided landlord the permits so. We shall try to ensure that they so permit.
### Response:
1
### Explanation:
We are unable to accept the view of the Delhi High Court, We have noted the provisions. The purpose of the Act is to control rents and eviction, in other words, to control unreasonable evictions and to ensure that in an atmosphere of acute shortage of accommodation, there is proper enjoyment of available spaces by those who want and deserve. In other words, to ensure that there is no unreasonable and unnecessary spaces in the hands of one tenant and other tenants and landlords? need of occupation of spaces remains unsatisfied, Clause (h) of Section 14(1) is an attempt in a way to ration out accommoda-tion between tenants and landlords. Looked at from that point of view unless acquisition of a premises or a flat or allotment of a premises or part of a premises by the tenant in which he has domain which he can reasonably and alternatively use as a substitute for the place he is using in the tenancy it cannot lead to a forfeiture of his right to occupy his tenanted premises. The case would be otherwise, however, if a tenant comes into possession of a pre-mises or is allotted a piece of residence or acquires vacant possession of the premises then such a tenant cannot prevent, if other conditions are fulfilled under Section 14(1)(h) of the Act being liable to forfeiture of his tenancyHaving considered the averments of the parties on the point at issue it was held in that case that the respondent had through his wife acquired vacant possession of a residence in Delhi and in that view of the matter was held not entitled to retain old tenant-ed premises. Mr. Avadh Bihari Rohtagi, learned Counsel strenuously contended before us that this proposition that acquisition of a flat by the wife was acquisition by the tenant and such acquisition in all circumstances would be within the mischief of Section 14(1)(h) of the Act and would disentitle the tenant to retain his flat in question. We are unable to accept this reading of said Act. The said decision rested on the facts of that case. There in that case, this Court has found in a case that the respondent?s wife had purchased a flat in Saket and that further found that the flat was available to the respon-dent. In those circumstances it was held that there was acquisition of vacant possession of a residence and as such Section 14(1)(h) of the Act would be attracted. It cannot however be laid down as a general proposition of law that acquisition of flat by the wife in all circumstances would amount to acquisition of flat by the tenantTenancy is a right vested in the tenant. The main purpose of the Act is the protection of tenants from eviction. The various provisos to Sub-section (1) of Section 14 laid down the exception to this rule. The learned Judge observed that when proviso (h) made tenant liable to eviction, its effect was to divest the tenant of his right of tenancy. The intention of the legislature in divesting the tenant of his right was based upon the fact that the tenant had legally acquired another residence as of right. There is no law according to which husband and wife could be deemed to be one person. Therefore, the correct position must be that if a wife or a husband vice-versa acquires a property then the other spouse if he/she is the tenant and by such acquisition by the other spouse of a tenant as a legal right to go there and have right of stay and then only can such acquisition or allotment of premises would disentitle or attract the provisions of Clause (h) of Section 14(1), otherwise the whole purpose would be defeated. In other words if for all practi-cal and real sense the tenant, acquired, built or allotted another residence then his need for the old tenanted residence goes and the tenant loses his right to retain his tenanted premises. That is the rationale behind the schemeIn our opinion, this principle is wholly irrelevant for the point in controversy before this Court. We are not concerned whether there was ground for bona fide requirement of the landlord for which a suit had been filed and which is pending appeal. This fact of acquisition or allotment of flat in the name of wife (which incidentally she has lost having given up her job) can be in certain circumstances a factor in Judging the bona fide needs of the landlord; but the same indisputably cannot be any ground to evict the tenant on the ground that he has acquired vacant possession or allotted residence in terms of Clause (h) of Section 14(1)7. In the premises we are unable to sustain the judgment under appeal. To complete the story the wife of the tenant has resigned and has joined the husband at 2/14, Kalkaji Extension, New Delhi. We hope there will be no more strained relationship in the family. Hereafter they will live happily provided landlord the permits so. We shall try to ensure that they so permit.
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Usman Gani J. Khatri of Bombay Etc Vs. Cantonment Board and Others Etc | in the Cantonment where housing was inadequate. Prior to December, 1982, the building bye-laws of Poona Cantonment Board did not provide for an y restrictions on floor space index (FSI) or height of buildings. Owing to non-existence of FSI restrictions, high-rise building came up in the densely populated civil area of the Cantonment. In order to prevent over-crowding and congestions and ensure sanitation, it became necessary for the GOC-in-C, the command to intervene in exercise of the powers vested in him under Section 181-A of the Cantonments Act, 1924 and impose a scheme of restriction in March, 1984. (a) The FSI was restricted to 1 in the civil and bazar areas and 0.5 in the bangalow areas. (b) maximum height of buildings was stipulated as 18 mtrs. (c) maximum number of storeys is to be ground plus 2. 27. The Cantonment Board has initiated amendments to the building bye-laws incorporating the above restrictions which are stated to be under the consideration of Government. The possibility of land speculators and builders taking advantage of they policy to permit conversion of old grant sites into free hold, as pointed out above, lies at one end of the spectrum. At the other end is the inability of the urban-dwellers to build new houses in place of the dilapidated house or tenement or bungalow. Even where the Government has resumed the bungalows it is not in a position to reconstruct them for want of resources. The working Group is of the view that the land policy of the Government in regard to the civil areas of the Cantonment should be more liberal so as to contribute to urban renewal. However it would be required to tighten building controls and regulations, if environmental degradation, as it has taken place in Poona Cantonment on account of the laxity of such controls and regulations, is not to occur in other Cantonments."One of the suggestions and recommendations reads as under:- "The group has observed that building bye-laws particularly the FSI restrictions are now being enforced in 15 cantonments falling under the Southern Command. Building regulations are essential to control the quality of built environment. It is recommended that similar steps should be taken in all cantonments through out the country and rigidly enforced to stop commercial building activities within the limits of military establishments, as had occurred in Pune Cantonment". 28. None of the petitioners have submitted fresh building plans according to the scheme of building restrictions in force at the relevant time and no sanction was accorded in favour of any of the petitioners to the building plans submitted originally. In case, petitioners shall submit fresh building plans now the same would be governed by the new bye-laws which have already come into force on 30.4.1988. 29. The schemes of building restrictions made by GOC-in- Chief dated 24.12.1982 and 26.3.19 84 and amended bye-laws in 1988 putting restrictions and reducing the height and floor space index in respect of multi-storeyed buildings have been made in larger public interest and for the benefit of the entire population of the city of Pune. No argument challenging the validity of such schemes or bye-laws have been addressed before us. The slogan of the builders and land owners of utilising the maximum area for construction of high-rise buildings for fulfilling the need of houses in big urban cities should always be subservient to the building restrictions and regulations made in the larger interest of the whole inhabitants of Pune and keeping in view the influx of population, environment hazards, sanitation, provision for supply of water, electricity and other amenities.A couplet in Telugu translated in English is quoted:- "I will not stop cutting down trees, Though there is life in them. I will not stop plucking out leaves, Though they make nature beautiful. I will not stop hacking off branches, Though they are the arms of a tree. Because - I need a hut." 30. It was also contended on behalf of the petitioners that this Court by an order dated 23rd February, 1990 in Shoriar Baharam Irani &Ors. v. Pune Cantonment Board & Ors. in civil Appeal No. 2184 of 1987 filed against the judgment of the High Court dated 15.4.1987, have allowed the appellants of that case to make constructions in accordance with the building plan as sanctioned by the Cantonment Board subject to the restrictions imposed by the order of the GOC-in-Chief dated 24.12.1982. It is submitted that the cases of the petitioners are identical and as such they are also entitled to a similar order as passed in the above mentioned case. We find no force in this contention. In the order dated 23.2.1990 referred to above, it was clearly observed as under:- "It is stated before us that a number of petitions are pending before the Bombay High Court challenging the validity of various building plans sanctioned by the Cantonment Board, Pune , in respect of other parties. We accordingly make it clear that this order will not effect the questions raised in those petitions, as we express no opinion on the merit of the contentions raised by the parties. However, we direct that the Writ Petition No. 156/87 and Writ Petition No. 1547/87 pending before the Bombay High Court against the appellants will stand disposed of in terms of this order. The appeals are accordingly disposed of without expressing any opinion on the contentions raised by the parties or on the questions decided by the High Court, under appeal." 31. A perusal of the observations made in the above order leave no manner of doubt that this Court had clearly mentioned that it was not expressing any opinion on the contentions raised by the parties nor on the questions decided by the High Court. Thus, the above decision cannot be considered as a precedent for the cases in hand before us and no help can be sought by the petitioners on the questions now raised before us and decided by giving detailed reasons as mentioned above.32. | 0[ds]We have considered the arguments advanced before us and we are clearly of the view that there is no force in any of these special leave petitions. The builders are playing the game of hide and seek and did not come in a straight forward manner accepting the first scheme of restrictions on buildings brought into force as back as on 24th December, 1982 and went on insisting that the said scheme of restrictions was not binding on them. We cannot be oblivious to the fact of thrust of population in all the Urban cities in our country and the problem of basic amenities to be made available to the residents of the cities including Pune. We are already in the last decade of the 20th century and all planning is to be done on a long term basis taking note of the growth of industries and over crowding of population causing environmental and pollution problems in the cities. Growing awareness of these problems has activated the Government as well as the various social activists in taking notice of this menacing problem which is posing a danger to the very survival and existence of humanappears from the record that the Union Ministry of Environment, State of Maharashtra, National Commission on Urbanization and expert working group on Cantonment areas took notice of this problem in the city of Pune and suggested schemes which took the shape of orders issued by the G.O.C .-in-Chief, Southern Command and amendments in the bye-laws by the Cantonment Board. The petitioners did not acquire any legal right in respect of building plans until the same were sanctioned in their favour after having paid the total amount of conversion charges in lump sum or in terms of sanctioned installments and getting conversion of their land in free-hold tenure. The first scheme of restrictions was brought into force long back on 24th December, 1982 and the second on 26th March, 1984. The petitioners did not submit any fresh building plans in accordance with the first or the second scheme of restrictions. Many of the petitioners have not paid a single pie towards the conversion charges, some of them have paid only few installments and the others though have paid the installments but not according to the schedule. In any case, the High Court is right in taking the view that the building plans ca n only be sanctioned according to the building regulations prevailing at the time of sanctioning of such building plans. At present the statutory bye-laws published on 30th April, 1988 are in force and the fresh building plans to be submitted by the petitioners, if any, shall now be governed by these bye-laws and not by any other bye-laws or schemes which are no longer in force now. If we consider a reverse case where building regulations are amended more favourably to the builders be fore sanctioning of building plans already submitted, the builders would certainly claim and get the advantage of the regulations amended to their benefit.The National Commission on Urbanization appointed by the Government of India has submitted its report in August,of the petitioners have submitted fresh building plans according to the scheme of building restrictions in force at the relevant time and no sanction was accorded in favour of any of the petitioners to the building plans submitted originally. In case, petitioners shall submit fresh building plans now the same would be governed by the new bye-laws which have already come into force onfind no force in this contention. In the order dated 23.2.1990 referred to above, it was clearly observed asis stated before us that a number of petitions are pending before the Bombay High Court challenging the validity of various building plans sanctioned by the Cantonment Board, Pune , in respect of other parties. We accordingly make it clear that this order will not effect the questions raised in those petitions, as we express no opinion on the merit of the contentions raised by the parties. However, we direct that the Writ Petition No. 156/87 and Writ Petition No. 1547/87 pending before the Bombay High Court against the appellants will stand disposed of in terms of this order. The appeals are accordingly disposed of without expressing any opinion on the contentions raised by the parties or on the questions decided by the High Court, under appeal."perusal of the observations made in the above order leave no manner of doubt that this Court had clearly mentioned that it was not expressing any opinion on the contentions raised by the parties nor on the questions decided by the High Court. Thus, the above decision cannot be considered as a precedent for the cases in hand before us and no help can be sought by the petitioners on the questions now raised before us and decided by giving detailed reasons as mentioned above. | 0 | 7,400 | 860 | ### Instruction:
Decide if the appeal in the case proceeding is more likely to be successful (1) or unsuccessful (0), and then justify your decision by focusing on essential sentences in the document.
### Input:
in the Cantonment where housing was inadequate. Prior to December, 1982, the building bye-laws of Poona Cantonment Board did not provide for an y restrictions on floor space index (FSI) or height of buildings. Owing to non-existence of FSI restrictions, high-rise building came up in the densely populated civil area of the Cantonment. In order to prevent over-crowding and congestions and ensure sanitation, it became necessary for the GOC-in-C, the command to intervene in exercise of the powers vested in him under Section 181-A of the Cantonments Act, 1924 and impose a scheme of restriction in March, 1984. (a) The FSI was restricted to 1 in the civil and bazar areas and 0.5 in the bangalow areas. (b) maximum height of buildings was stipulated as 18 mtrs. (c) maximum number of storeys is to be ground plus 2. 27. The Cantonment Board has initiated amendments to the building bye-laws incorporating the above restrictions which are stated to be under the consideration of Government. The possibility of land speculators and builders taking advantage of they policy to permit conversion of old grant sites into free hold, as pointed out above, lies at one end of the spectrum. At the other end is the inability of the urban-dwellers to build new houses in place of the dilapidated house or tenement or bungalow. Even where the Government has resumed the bungalows it is not in a position to reconstruct them for want of resources. The working Group is of the view that the land policy of the Government in regard to the civil areas of the Cantonment should be more liberal so as to contribute to urban renewal. However it would be required to tighten building controls and regulations, if environmental degradation, as it has taken place in Poona Cantonment on account of the laxity of such controls and regulations, is not to occur in other Cantonments."One of the suggestions and recommendations reads as under:- "The group has observed that building bye-laws particularly the FSI restrictions are now being enforced in 15 cantonments falling under the Southern Command. Building regulations are essential to control the quality of built environment. It is recommended that similar steps should be taken in all cantonments through out the country and rigidly enforced to stop commercial building activities within the limits of military establishments, as had occurred in Pune Cantonment". 28. None of the petitioners have submitted fresh building plans according to the scheme of building restrictions in force at the relevant time and no sanction was accorded in favour of any of the petitioners to the building plans submitted originally. In case, petitioners shall submit fresh building plans now the same would be governed by the new bye-laws which have already come into force on 30.4.1988. 29. The schemes of building restrictions made by GOC-in- Chief dated 24.12.1982 and 26.3.19 84 and amended bye-laws in 1988 putting restrictions and reducing the height and floor space index in respect of multi-storeyed buildings have been made in larger public interest and for the benefit of the entire population of the city of Pune. No argument challenging the validity of such schemes or bye-laws have been addressed before us. The slogan of the builders and land owners of utilising the maximum area for construction of high-rise buildings for fulfilling the need of houses in big urban cities should always be subservient to the building restrictions and regulations made in the larger interest of the whole inhabitants of Pune and keeping in view the influx of population, environment hazards, sanitation, provision for supply of water, electricity and other amenities.A couplet in Telugu translated in English is quoted:- "I will not stop cutting down trees, Though there is life in them. I will not stop plucking out leaves, Though they make nature beautiful. I will not stop hacking off branches, Though they are the arms of a tree. Because - I need a hut." 30. It was also contended on behalf of the petitioners that this Court by an order dated 23rd February, 1990 in Shoriar Baharam Irani &Ors. v. Pune Cantonment Board & Ors. in civil Appeal No. 2184 of 1987 filed against the judgment of the High Court dated 15.4.1987, have allowed the appellants of that case to make constructions in accordance with the building plan as sanctioned by the Cantonment Board subject to the restrictions imposed by the order of the GOC-in-Chief dated 24.12.1982. It is submitted that the cases of the petitioners are identical and as such they are also entitled to a similar order as passed in the above mentioned case. We find no force in this contention. In the order dated 23.2.1990 referred to above, it was clearly observed as under:- "It is stated before us that a number of petitions are pending before the Bombay High Court challenging the validity of various building plans sanctioned by the Cantonment Board, Pune , in respect of other parties. We accordingly make it clear that this order will not effect the questions raised in those petitions, as we express no opinion on the merit of the contentions raised by the parties. However, we direct that the Writ Petition No. 156/87 and Writ Petition No. 1547/87 pending before the Bombay High Court against the appellants will stand disposed of in terms of this order. The appeals are accordingly disposed of without expressing any opinion on the contentions raised by the parties or on the questions decided by the High Court, under appeal." 31. A perusal of the observations made in the above order leave no manner of doubt that this Court had clearly mentioned that it was not expressing any opinion on the contentions raised by the parties nor on the questions decided by the High Court. Thus, the above decision cannot be considered as a precedent for the cases in hand before us and no help can be sought by the petitioners on the questions now raised before us and decided by giving detailed reasons as mentioned above.32.
### Response:
0
### Explanation:
We have considered the arguments advanced before us and we are clearly of the view that there is no force in any of these special leave petitions. The builders are playing the game of hide and seek and did not come in a straight forward manner accepting the first scheme of restrictions on buildings brought into force as back as on 24th December, 1982 and went on insisting that the said scheme of restrictions was not binding on them. We cannot be oblivious to the fact of thrust of population in all the Urban cities in our country and the problem of basic amenities to be made available to the residents of the cities including Pune. We are already in the last decade of the 20th century and all planning is to be done on a long term basis taking note of the growth of industries and over crowding of population causing environmental and pollution problems in the cities. Growing awareness of these problems has activated the Government as well as the various social activists in taking notice of this menacing problem which is posing a danger to the very survival and existence of humanappears from the record that the Union Ministry of Environment, State of Maharashtra, National Commission on Urbanization and expert working group on Cantonment areas took notice of this problem in the city of Pune and suggested schemes which took the shape of orders issued by the G.O.C .-in-Chief, Southern Command and amendments in the bye-laws by the Cantonment Board. The petitioners did not acquire any legal right in respect of building plans until the same were sanctioned in their favour after having paid the total amount of conversion charges in lump sum or in terms of sanctioned installments and getting conversion of their land in free-hold tenure. The first scheme of restrictions was brought into force long back on 24th December, 1982 and the second on 26th March, 1984. The petitioners did not submit any fresh building plans in accordance with the first or the second scheme of restrictions. Many of the petitioners have not paid a single pie towards the conversion charges, some of them have paid only few installments and the others though have paid the installments but not according to the schedule. In any case, the High Court is right in taking the view that the building plans ca n only be sanctioned according to the building regulations prevailing at the time of sanctioning of such building plans. At present the statutory bye-laws published on 30th April, 1988 are in force and the fresh building plans to be submitted by the petitioners, if any, shall now be governed by these bye-laws and not by any other bye-laws or schemes which are no longer in force now. If we consider a reverse case where building regulations are amended more favourably to the builders be fore sanctioning of building plans already submitted, the builders would certainly claim and get the advantage of the regulations amended to their benefit.The National Commission on Urbanization appointed by the Government of India has submitted its report in August,of the petitioners have submitted fresh building plans according to the scheme of building restrictions in force at the relevant time and no sanction was accorded in favour of any of the petitioners to the building plans submitted originally. In case, petitioners shall submit fresh building plans now the same would be governed by the new bye-laws which have already come into force onfind no force in this contention. In the order dated 23.2.1990 referred to above, it was clearly observed asis stated before us that a number of petitions are pending before the Bombay High Court challenging the validity of various building plans sanctioned by the Cantonment Board, Pune , in respect of other parties. We accordingly make it clear that this order will not effect the questions raised in those petitions, as we express no opinion on the merit of the contentions raised by the parties. However, we direct that the Writ Petition No. 156/87 and Writ Petition No. 1547/87 pending before the Bombay High Court against the appellants will stand disposed of in terms of this order. The appeals are accordingly disposed of without expressing any opinion on the contentions raised by the parties or on the questions decided by the High Court, under appeal."perusal of the observations made in the above order leave no manner of doubt that this Court had clearly mentioned that it was not expressing any opinion on the contentions raised by the parties nor on the questions decided by the High Court. Thus, the above decision cannot be considered as a precedent for the cases in hand before us and no help can be sought by the petitioners on the questions now raised before us and decided by giving detailed reasons as mentioned above.
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Patel Premji Jiva By L.Rs Vs. State of Gujarat and Others | SHAH, J. 1. In exercise of the powers under Section 4 of the Land Acquisition Act 1 of 1894, the Government of Gujarat notified for acquisition an area of land in the town of Gondal, for a public purpose. Enquiry was under Section 5-A of the Land Acquisition Act and thereafter on May 11, 1966, a notification was published under Section 6 of the Act declaring that the land was needed for a public purpose. It was stated in the notification "and whereas the Government of Gujarat is satisfied after considering the report of the Deputy Collector under sub-section (2) of Section 6-A of the Land Acquisition Act 1 of 1894 that the said land is needed to be acquired at the expense of a local body, i.e., Agricultural Procedure Markets Committee, Gondal, for the purpose specified in Column 4 of the Schedule hereto, it is hereby declared under the provisions of Section 6 of the said Act that the land is required for the purpose specified in Column 4 of the Schedule hereto; and in Column 4 of the Schedule the purpose specified was for New Market Yard at Gondal". 2. The appellant moved a petition before the High Court of Gujarat challenging the validity of this notification. It was urged in support of the petition that the Agricultural Procedure Markets Committee not being a "local authority" within the meaning of Section 6 of the Land Acquisition Act, the Government of Gujarat was not competent to acquire the land under the Land Acquisition Act. 3. Section 6 of the Land Acquisition Act, by the first sub-section provides for making a declaration that the land is needed for a public purpose. There are two proviso to that section of which the second is relevant : "Provided further that no such declaration shall be made unless the compensation to be awarded for such property is to be paid by a Company, or wholly or partly out of public revenue or some fund controlled or managed by a local authority." 4. The expression "local authority" is not defined in the Land Acquisition Act. But by the General Clauses Act 10 of 1897 the expression "local authority" is defined as meaning "a municipal committee, district board, body of port Commissioners or other authority legally entitled to or entrusted by the Government with, the control or management of a municipal or local fund". By virtue of Section 10(2) of the Gujarat Agricultural Procedure Markets Act, 1963, the market committee is a local authority within the meaning of the Bombay General Clauses Act. A local authority being by virtue of Section 3(26) of the Bombay General Clauses Act, 1904, a body which is entrusted by Government with control or management, inter alia, of a local fund, there is no scope for the argument that the market committee constituted under Gujarat Agricultural Markets Act, 1963, is not a local authority within the meaning of Section 6 of the Land Acquisition Act. | 0[ds]3. Section 6 of the Land Acquisition Act, by the firstn provides for making a declaration that the land is needed for a public purpose. There are two proviso to that section of which the second is relevant :"Provided further that no such declaration shall be made unless the compensation to be awarded for such property is to be paid by a Company, or wholly or partly out of public revenue or some fund controlled or managed by a local authority."4. The expression "local authority" is not defined in the Land Acquisition Act. But by the General Clauses Act 10 of 1897 the expression "local authority" is defined as meaning "a municipal committee, district board, body of port Commissioners or other authority legally entitled to or entrusted by the Government with, the control or management of a municipal or local fund". By virtue of Section 10(2) of the Gujarat Agricultural Procedure Markets Act, 1963, the market committee is a local authority within the meaning of the Bombay General Clauses Act. A local authority being by virtue of Section 3(26) of the Bombay General Clauses Act, 1904, a body which is entrusted by Government with control or management, inter alia, of a local fund, there is no scope for the argument that the market committee constituted under Gujarat Agricultural Markets Act, 1963, is not a local authority within the meaning of Section 6 of the Land Acquisition Act. | 0 | 557 | 278 | ### 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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SHAH, J. 1. In exercise of the powers under Section 4 of the Land Acquisition Act 1 of 1894, the Government of Gujarat notified for acquisition an area of land in the town of Gondal, for a public purpose. Enquiry was under Section 5-A of the Land Acquisition Act and thereafter on May 11, 1966, a notification was published under Section 6 of the Act declaring that the land was needed for a public purpose. It was stated in the notification "and whereas the Government of Gujarat is satisfied after considering the report of the Deputy Collector under sub-section (2) of Section 6-A of the Land Acquisition Act 1 of 1894 that the said land is needed to be acquired at the expense of a local body, i.e., Agricultural Procedure Markets Committee, Gondal, for the purpose specified in Column 4 of the Schedule hereto, it is hereby declared under the provisions of Section 6 of the said Act that the land is required for the purpose specified in Column 4 of the Schedule hereto; and in Column 4 of the Schedule the purpose specified was for New Market Yard at Gondal". 2. The appellant moved a petition before the High Court of Gujarat challenging the validity of this notification. It was urged in support of the petition that the Agricultural Procedure Markets Committee not being a "local authority" within the meaning of Section 6 of the Land Acquisition Act, the Government of Gujarat was not competent to acquire the land under the Land Acquisition Act. 3. Section 6 of the Land Acquisition Act, by the first sub-section provides for making a declaration that the land is needed for a public purpose. There are two proviso to that section of which the second is relevant : "Provided further that no such declaration shall be made unless the compensation to be awarded for such property is to be paid by a Company, or wholly or partly out of public revenue or some fund controlled or managed by a local authority." 4. The expression "local authority" is not defined in the Land Acquisition Act. But by the General Clauses Act 10 of 1897 the expression "local authority" is defined as meaning "a municipal committee, district board, body of port Commissioners or other authority legally entitled to or entrusted by the Government with, the control or management of a municipal or local fund". By virtue of Section 10(2) of the Gujarat Agricultural Procedure Markets Act, 1963, the market committee is a local authority within the meaning of the Bombay General Clauses Act. A local authority being by virtue of Section 3(26) of the Bombay General Clauses Act, 1904, a body which is entrusted by Government with control or management, inter alia, of a local fund, there is no scope for the argument that the market committee constituted under Gujarat Agricultural Markets Act, 1963, is not a local authority within the meaning of Section 6 of the Land Acquisition Act.
### Response:
0
### Explanation:
3. Section 6 of the Land Acquisition Act, by the firstn provides for making a declaration that the land is needed for a public purpose. There are two proviso to that section of which the second is relevant :"Provided further that no such declaration shall be made unless the compensation to be awarded for such property is to be paid by a Company, or wholly or partly out of public revenue or some fund controlled or managed by a local authority."4. The expression "local authority" is not defined in the Land Acquisition Act. But by the General Clauses Act 10 of 1897 the expression "local authority" is defined as meaning "a municipal committee, district board, body of port Commissioners or other authority legally entitled to or entrusted by the Government with, the control or management of a municipal or local fund". By virtue of Section 10(2) of the Gujarat Agricultural Procedure Markets Act, 1963, the market committee is a local authority within the meaning of the Bombay General Clauses Act. A local authority being by virtue of Section 3(26) of the Bombay General Clauses Act, 1904, a body which is entrusted by Government with control or management, inter alia, of a local fund, there is no scope for the argument that the market committee constituted under Gujarat Agricultural Markets Act, 1963, is not a local authority within the meaning of Section 6 of the Land Acquisition Act.
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Subodh S. Salaskar Vs. Jayprakash M. Shah | any application in the instant case." The question is now covered by a judgment of this Court in Anil Kumar Goel v. Kishan Chand Kaura [2008 AIR SCW 295] holding: "8. All laws that affect substantive rights generally operate prospectively and there is a presumption against their retrospectivity if they affect vested rights and obligations, unless the legislative intent is clear and compulsive. Such retrospective effect may be given where there are express words giving retrospective effect or where the language used necessarily implies that such retrospective operation is intended. Hence the question whether a statutory provision has retrospective effect or not depends primarily on the language in which it is couched. If the language is clear and unambiguous, effect will have to be given to the provision is question in accordance with its tenor. If the language is not clear then the court has to decide whether, in the light of the surrounding circumstances, retrospective effect should be given to it or not. (See: Punjab Tin Supply Co., Chandigarh etc. etc. v. Central Government and Ors., AIR 1984 SC 87 ).9. There is nothing in the amendment made to Section 142(b) by the Act 55 of 2002 that the same was intended to operate retrospectively. In fact that was not even the stand of the respondent. Obviously, when the complaint was filed on 28.11.1998, the respondent could not have foreseen that in future any amendment providing for extending the period of limitation on sufficient cause being shown would be enacted." 26. Therefore, there cannot be any doubt whatsoever that the courts below committed a manifest error in applying the proviso to the fact of the instant case. If the complaint petition was barred by limitation, the learned Magistrate had no jurisdiction to take cognizance under Section 138 of the Act. The direction to issue summons on the appellant, therefore, being illegal and without jurisdiction was a nullity. 27. Section 415 of the Indian Penal Code defines "cheating". The said provision requires: (i) deception of any person, (ii) whereby fraudulently or dishonestly inducing that person to deliver any property to any person or to consent that any person shall retain any property, or (iii) intentionally inducing that person to do or omit to do anything which he would not do or omit if he were not so deceived, and which act or omission causes or is likely to cause damage or harm to that person in body, mind, reputation or property. Deception of any person is common to the second and third requirements of the provision. [See Devender Kumar Singla v. Baldev Krishan Singla (2005) 9 SCC 15 ] 28. Noticing the ingredients of cheating, this Court in Suryalakshmi Cotton Mills Ltd. v. Rajvir Industries Ltd. and Ors., [JT 2008 (1) SC 340 ], held : "A bare perusal of Section 415 read with Section 420 of the Indian Penal Code would clearly lead to the conclusion that fraudulent or dishonest inducement on the part of the accused must be at the inception and not at a subsequent stage.22. For the said purpose, we may only notice that blank cheques were handed over to the accused during the period 2000-2004 for use thereof for business purposes but the dispute between the parties admittedly arose much thereafter i.e. in 2005. In B. Suresh Yadav v. Sharifa Bee 2007 (12) SCALE 364 , it was held;13. For the purpose of establishing the offence of cheating, the complainant is required to show that the accused had fraudulent or dishonest intention at the time of making promise or representation. In a case of this nature, it is permissible in law to consider the stand taken by a party in a pending civil litigation. We do not, however, mean to lay down a law that the liability of a person cannot be both civil and criminal at the same time. But when a stand has been taken in a complaint petition which is contrary to or inconsistent with the stand taken by him in a civil suit, it assumes significance. Had the fact as purported to have been represented before us that the appellant herein got the said two rooms demolished and concealed the said fact at the time of execution of the deed of sale, the matter might have been different. As the deed of sale was executed on 30.9.2005 and the purported demolition took place on 29.9.2005, it was expected that the complainant/first respondent would come out with her real grievance in the written statement filed by her in the aforementioned suit. She, for reasons best known to her, did not choose to do so. No case for proceeding against the respondent under Section 420 of the Indian Penal Code is therefore, made out.23. Filling up of the blanks in a cheque by itself would not amount to forgery. Whereas in the complaint petition, allegations have been made that it was respondent Nos. 2 and 3 who had entered into a conspiracy to commit the said offence as indicated hereinbefore, in the counter affidavit, it has been alleged that the employees of the Respondent Company did so." 29. The cheques were post dated ones. Admittedly they were issued in the year 1996. They were presented before the bank on a much later date. They were in fact presented only on 10.01.2001. When the cheques were issued, the accounts were operative. Even assuming that the account was closed subsequently the same would not mean that the appellant had an intention to cheat when the post dated cheques were issued. Even otherwise the allegations made in the complaint petition, even if given face value and taken to be correct in its entirety do not disclose commission of an offence under Section 420 of the Indian Penal Code. They do not satisfy the ingredients of the suit provision. It is, therefore, in the fact situation obtaining in the instant case, difficult to hold that the provisions of Section 420 of the Indian Penal Code were attracted. | 1[ds]28. Noticing the ingredients of cheating, this Court in Suryalakshmi Cotton Mills Ltd. v. Rajvir Industries Ltd. and Ors., [JT 2008 (1) SC 340 ], heldbare perusal of Section 415 read with Section 420 of the Indian Penal Code would clearly lead to the conclusion that fraudulent or dishonest inducement on the part of the accused must be at the inception and not at a subsequent stage.22. For the said purpose, we may only notice that blank cheques were handed over to the accused during the period 2000-2004 for use thereof for business purposes but the dispute between the parties admittedly arose much thereafter i.e. in 2005. In B. Suresh Yadav v. Sharifa Bee 2007 (12) SCALE 364 , it was held;13. For the purpose of establishing the offence of cheating, the complainant is required to show that the accused had fraudulent or dishonest intention at the time of making promise or representation. In a case of this nature, it is permissible in law to consider the stand taken by a party in a pending civil litigation. We do not, however, mean to lay down a law that the liability of a person cannot be both civil and criminal at the same time. But when a stand has been taken in a complaint petition which is contrary to or inconsistent with the stand taken by him in a civil suit, it assumes significance. Had the fact as purported to have been represented before us that the appellant herein got the said two rooms demolished and concealed the said fact at the time of execution of the deed of sale, the matter might have been different. As the deed of sale was executed on 30.9.2005 and the purported demolition took place on 29.9.2005, it was expected that the complainant/first respondent would come out with her real grievance in the written statement filed by her in the aforementioned suit. She, for reasons best known to her, did not choose to do so. No case for proceeding against the respondent under Section 420 of the Indian Penal Code is therefore, made out.23. Filling up of the blanks in a cheque by itself would not amount to forgery. Whereas in the complaint petition, allegations have been made that it was respondent Nos. 2 and 3 who had entered into a conspiracy to commit the said offence as indicated hereinbefore, in the counter affidavit, it has been alleged that the employees of the Respondent Company did so.The cheques were post dated ones. Admittedly they were issued in the year 1996. They were presented before the bank on a much later date. They were in fact presented only on 10.01.2001. When the cheques were issued, the accounts were operative. Even assuming that the account was closed subsequently the same would not mean that the appellant had an intention to cheat when the post dated cheques were issued. Even otherwise the allegations made in the complaint petition, even if given face value and taken to be correct in its entirety do not disclose commission of an offence under Section 420 of the Indian Penal Code. They do not satisfy the ingredients of the suit provision. It is, therefore, in the fact situation obtaining in the instant case, difficult to hold that the provisions of Section 420 of the Indian Penal Code were attracted. | 1 | 5,423 | 614 | ### 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:
any application in the instant case." The question is now covered by a judgment of this Court in Anil Kumar Goel v. Kishan Chand Kaura [2008 AIR SCW 295] holding: "8. All laws that affect substantive rights generally operate prospectively and there is a presumption against their retrospectivity if they affect vested rights and obligations, unless the legislative intent is clear and compulsive. Such retrospective effect may be given where there are express words giving retrospective effect or where the language used necessarily implies that such retrospective operation is intended. Hence the question whether a statutory provision has retrospective effect or not depends primarily on the language in which it is couched. If the language is clear and unambiguous, effect will have to be given to the provision is question in accordance with its tenor. If the language is not clear then the court has to decide whether, in the light of the surrounding circumstances, retrospective effect should be given to it or not. (See: Punjab Tin Supply Co., Chandigarh etc. etc. v. Central Government and Ors., AIR 1984 SC 87 ).9. There is nothing in the amendment made to Section 142(b) by the Act 55 of 2002 that the same was intended to operate retrospectively. In fact that was not even the stand of the respondent. Obviously, when the complaint was filed on 28.11.1998, the respondent could not have foreseen that in future any amendment providing for extending the period of limitation on sufficient cause being shown would be enacted." 26. Therefore, there cannot be any doubt whatsoever that the courts below committed a manifest error in applying the proviso to the fact of the instant case. If the complaint petition was barred by limitation, the learned Magistrate had no jurisdiction to take cognizance under Section 138 of the Act. The direction to issue summons on the appellant, therefore, being illegal and without jurisdiction was a nullity. 27. Section 415 of the Indian Penal Code defines "cheating". The said provision requires: (i) deception of any person, (ii) whereby fraudulently or dishonestly inducing that person to deliver any property to any person or to consent that any person shall retain any property, or (iii) intentionally inducing that person to do or omit to do anything which he would not do or omit if he were not so deceived, and which act or omission causes or is likely to cause damage or harm to that person in body, mind, reputation or property. Deception of any person is common to the second and third requirements of the provision. [See Devender Kumar Singla v. Baldev Krishan Singla (2005) 9 SCC 15 ] 28. Noticing the ingredients of cheating, this Court in Suryalakshmi Cotton Mills Ltd. v. Rajvir Industries Ltd. and Ors., [JT 2008 (1) SC 340 ], held : "A bare perusal of Section 415 read with Section 420 of the Indian Penal Code would clearly lead to the conclusion that fraudulent or dishonest inducement on the part of the accused must be at the inception and not at a subsequent stage.22. For the said purpose, we may only notice that blank cheques were handed over to the accused during the period 2000-2004 for use thereof for business purposes but the dispute between the parties admittedly arose much thereafter i.e. in 2005. In B. Suresh Yadav v. Sharifa Bee 2007 (12) SCALE 364 , it was held;13. For the purpose of establishing the offence of cheating, the complainant is required to show that the accused had fraudulent or dishonest intention at the time of making promise or representation. In a case of this nature, it is permissible in law to consider the stand taken by a party in a pending civil litigation. We do not, however, mean to lay down a law that the liability of a person cannot be both civil and criminal at the same time. But when a stand has been taken in a complaint petition which is contrary to or inconsistent with the stand taken by him in a civil suit, it assumes significance. Had the fact as purported to have been represented before us that the appellant herein got the said two rooms demolished and concealed the said fact at the time of execution of the deed of sale, the matter might have been different. As the deed of sale was executed on 30.9.2005 and the purported demolition took place on 29.9.2005, it was expected that the complainant/first respondent would come out with her real grievance in the written statement filed by her in the aforementioned suit. She, for reasons best known to her, did not choose to do so. No case for proceeding against the respondent under Section 420 of the Indian Penal Code is therefore, made out.23. Filling up of the blanks in a cheque by itself would not amount to forgery. Whereas in the complaint petition, allegations have been made that it was respondent Nos. 2 and 3 who had entered into a conspiracy to commit the said offence as indicated hereinbefore, in the counter affidavit, it has been alleged that the employees of the Respondent Company did so." 29. The cheques were post dated ones. Admittedly they were issued in the year 1996. They were presented before the bank on a much later date. They were in fact presented only on 10.01.2001. When the cheques were issued, the accounts were operative. Even assuming that the account was closed subsequently the same would not mean that the appellant had an intention to cheat when the post dated cheques were issued. Even otherwise the allegations made in the complaint petition, even if given face value and taken to be correct in its entirety do not disclose commission of an offence under Section 420 of the Indian Penal Code. They do not satisfy the ingredients of the suit provision. It is, therefore, in the fact situation obtaining in the instant case, difficult to hold that the provisions of Section 420 of the Indian Penal Code were attracted.
### Response:
1
### Explanation:
28. Noticing the ingredients of cheating, this Court in Suryalakshmi Cotton Mills Ltd. v. Rajvir Industries Ltd. and Ors., [JT 2008 (1) SC 340 ], heldbare perusal of Section 415 read with Section 420 of the Indian Penal Code would clearly lead to the conclusion that fraudulent or dishonest inducement on the part of the accused must be at the inception and not at a subsequent stage.22. For the said purpose, we may only notice that blank cheques were handed over to the accused during the period 2000-2004 for use thereof for business purposes but the dispute between the parties admittedly arose much thereafter i.e. in 2005. In B. Suresh Yadav v. Sharifa Bee 2007 (12) SCALE 364 , it was held;13. For the purpose of establishing the offence of cheating, the complainant is required to show that the accused had fraudulent or dishonest intention at the time of making promise or representation. In a case of this nature, it is permissible in law to consider the stand taken by a party in a pending civil litigation. We do not, however, mean to lay down a law that the liability of a person cannot be both civil and criminal at the same time. But when a stand has been taken in a complaint petition which is contrary to or inconsistent with the stand taken by him in a civil suit, it assumes significance. Had the fact as purported to have been represented before us that the appellant herein got the said two rooms demolished and concealed the said fact at the time of execution of the deed of sale, the matter might have been different. As the deed of sale was executed on 30.9.2005 and the purported demolition took place on 29.9.2005, it was expected that the complainant/first respondent would come out with her real grievance in the written statement filed by her in the aforementioned suit. She, for reasons best known to her, did not choose to do so. No case for proceeding against the respondent under Section 420 of the Indian Penal Code is therefore, made out.23. Filling up of the blanks in a cheque by itself would not amount to forgery. Whereas in the complaint petition, allegations have been made that it was respondent Nos. 2 and 3 who had entered into a conspiracy to commit the said offence as indicated hereinbefore, in the counter affidavit, it has been alleged that the employees of the Respondent Company did so.The cheques were post dated ones. Admittedly they were issued in the year 1996. They were presented before the bank on a much later date. They were in fact presented only on 10.01.2001. When the cheques were issued, the accounts were operative. Even assuming that the account was closed subsequently the same would not mean that the appellant had an intention to cheat when the post dated cheques were issued. Even otherwise the allegations made in the complaint petition, even if given face value and taken to be correct in its entirety do not disclose commission of an offence under Section 420 of the Indian Penal Code. They do not satisfy the ingredients of the suit provision. It is, therefore, in the fact situation obtaining in the instant case, difficult to hold that the provisions of Section 420 of the Indian Penal Code were attracted.
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State of Bihar and others Vs. Indian Aluminum Company and others | has been regarded as meaning the land on surface and also below the surface. Therefore, in order that a tax can be levied under Entry 49 of List II it is essential that land as a unit must exist on which the tax is imposed. In the instant case the tax is, in effect, being levied not on land but on the absence of land. The levy is on the void which has been created. The forest land which is being used is not subjected to tax. The Schedule to the Act itself shows that the assessment of tax is on excavation and use of forest land for non-forest purpose. The Schedule further says that the rate of tax to be levied, in the case of mining or excavation varies with the extent of the land voided. In case the land has been rehabilitated no tax is to be levied. The tax is levied in effect on the activity of the removal or excavation of land. In other words the tax is squarely on the activity of mining because it is under the mining lease that mechanized and non-mechanized excavation as well as underground excavation takes place and this is what is referred to in column 1 of the Schedule to the Act while determining the amount of tax leviable. Levy in other words is on the activity of removal of earth and not on the land itself and is, therefore, outside the ambit of Entry 49 of List II 16. There is yet another reason why this tax cannot be regarded as being a tax on land. Section 3 read with the Schedule [and clauses (a), (b) and (c)] of the Act says that the tax is not on the surface of the land but is on the extent to which destruction has taken place. It is with reference to the extent of the empty space or the void which has been created as a result of the mining activity that the tax is levied. Tax, in effect, is levied on the absence of land and not on land itself. At the most this may be regarded as a tax in respect of land but it is certainly not a tax on land. The existing land or trees are not taxed, the tax is leviable only when a non-forest activity takes place and the land is not rehabilitated. Therefore, in pith and substance it is a tax on activity on land and not on land itself 17. Mr. Sibal placed strong reliance on the decision in the case of Goodricke Group Ltd. v. State of W. B. in support of his contention that the levy was on land itself and that the Act would be covered by Entry 49. Goodricke cases is clearly distinguishable. There education cess and rural employment cess were levied on certain lands and buildings in the State of West Bengal. The estates were carved out as a separate category and a different rate was prescribed therefor. The cess on tea estates was calculated on the basis of yield of tea whereas cess on other lands was determined having regard to the development value of the same. It was held that the tax was upon land though the cess was quantified on the basis of produce of the tea estate. In the present case, however, we do not find that the tax is on land. In fact what is sought to be taxed is in the absence of land. There being this fundamental difference the decision in Goodricke cases Can have no application merely because in that case the quantum of cess on the estate to be charged depended on the quantity of tea dispatched from the tea estate. The tax, in other words, was on the existing tea estate but, for the purpose of calculating the tax it was relatable to the quantum of the tea dispatched as a measure of the tax 18. One of the facets of tax being levied on land is that the primary responsibility of the payment of tax is on the owner of the land. In the instant case the levy is not on the general ownership of the land but is on the person who uses it and who may or may not be the owner. The primary liability is on the use by the occupier and if the occupier and the owner are two different persons the liability would be that of the occupier alone and not of the owner 19. The provisions of clauses (d), (e) and (f) of the Schedule to the Act, in effect and substance, amount to levy of tax on the use of forest land for non-forest purposes and for rehabilitating the forest land. The Forest Conservation Act, 1980 and the rules and guidelines made thereunder contain complete provisions for reclamation and rehabilitation of such land. Planting and replanting trees thereon is a matter clearly covered by the said Act and therefore, the said clauses (d) to (f) of the Schedule in the impugned Act directly impinge on the analogous provisions of the Forest Conservation Act, 1980 20. From the aforesaid discussion it is obvious that the present tax is one on the excavation and use of forest land and not on the forest land as such. Taxing of the undertaking of a non-forest activity in a forest land cannot be regarded as being covered by Entry 49 of the State List because what is sought to be taxed is not land but the tax is on absence of land or forest by reason of the activity of excavation and/or mining or use of forest land for a non-forest purpose. The High Court was, therefore, right in allowing the writ petitions filed by the respondents 21. As, in our opinion, legislative competence was lacking in the enactment of this Act, it is not necessary for us to consider the other questions or issues which were raised and decided by the High Court | 0[ds]The validity of the levy of cess on royalty charged for mining levied by the Cess Acts of the States of Orissa, Bihar, Bengal and Madhya Pradesh came up for consideration before this Court in the case of Orissa Cement Ltd. v. State of Orissa where again relying upon the earlier decisions, this Court held that tax on land envisaged by Entry 49 of List II must be one directly imposed on land, levied on land as a unit and bearing a direct relationship to it. The last authority which needs to be referred to in this connection is of State of Orissa v. Mahanadi Coalfields Ltd. where this Court was called upon to determine the competence of the State Legislature to levy tax ong lands levied under the Orissa Rural Employment, Education and Production Act, 1992. This Act had been promulgated with a view to provide additional resources for promotion of education and employment in rural areas and for implementing rural employment, education and production programmes. The Act sought to levy rural employment, education and production tax only ong land. The validity of the Act having been challenged, the High Court held that the State Legislature did not have the competence to levy tax on coal bearing land. In appeal the legislative competence was sought to be derived from Entry 49 of List II. Rejecting this contention and following the ratio of the earlier decisions of this Court, it was held that the levy in that case was in substance on minerals and mineral rights and not on land and was beyond the competence of the State Legislature and did not fall within Entry 49 of List II15. Applying the ratio of the aforesaid decisions to the facts of the present case we find that the position is no different. Entry 49 of List II has been interpreted to mean the levy of tax directly on land as a unit. The land has been regarded as meaning the land on surface and also below the surface. Therefore, in order that a tax can be levied under Entry 49 of List II it is essential that land as a unit must exist on which the tax is imposed. In the instant case the tax is, in effect, being levied not on land but on the absence of land. The levy is on the void which has been created. The forest land which is being used is not subjected to tax. The Schedule to the Act itself shows that the assessment of tax is on excavation and use of forest land fort purpose. The Schedule further says that the rate of tax to be levied, in the case of mining or excavation varies with the extent of the land voided. In case the land has been rehabilitated no tax is to be levied. The tax is levied in effect on the activity of the removal or excavation of land. In other words the tax is squarely on the activity of mining because it is under the mining lease that mechanized andd excavation as well as underground excavation takes place and this is what is referred to in column 1 of the Schedule to the Act while determining the amount of tax leviable. Levy in other words is on the activity of removal of earth and not on the land itself and is, therefore, outside the ambit of Entry 49 of List IIIn the present case, however, we do not find that the tax is on land. In fact what is sought to be taxed is in the absence of land. There being this fundamental difference the decision in Goodricke cases Can have no application merely because in that case the quantum of cess on the estate to be charged depended on the quantity of tea dispatched from the tea estate. The tax, in other words, was on the existing tea estate but, for the purpose of calculating the tax it was relatable to the quantum of the tea dispatched as a measure of the tax20. From the aforesaid discussion it is obvious that the present tax is one on the excavation and use of forest land and not on the forest land as such. Taxing of the undertaking of at activity in a forest land cannot be regarded as being covered by Entry 49 of the State List because what is sought to be taxed is not land but the tax is on absence of land or forest by reason of the activity of excavation and/or mining or use of forest land for at purpose. The High Court was, therefore, right in allowing the writ petitions filed by the respondents21. As, in our opinion, legislative competence was lacking in the enactment of this Act, it is not necessary for us to consider the other questions or issues which were raised and decided by the High Court | 0 | 5,504 | 872 | ### 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:
has been regarded as meaning the land on surface and also below the surface. Therefore, in order that a tax can be levied under Entry 49 of List II it is essential that land as a unit must exist on which the tax is imposed. In the instant case the tax is, in effect, being levied not on land but on the absence of land. The levy is on the void which has been created. The forest land which is being used is not subjected to tax. The Schedule to the Act itself shows that the assessment of tax is on excavation and use of forest land for non-forest purpose. The Schedule further says that the rate of tax to be levied, in the case of mining or excavation varies with the extent of the land voided. In case the land has been rehabilitated no tax is to be levied. The tax is levied in effect on the activity of the removal or excavation of land. In other words the tax is squarely on the activity of mining because it is under the mining lease that mechanized and non-mechanized excavation as well as underground excavation takes place and this is what is referred to in column 1 of the Schedule to the Act while determining the amount of tax leviable. Levy in other words is on the activity of removal of earth and not on the land itself and is, therefore, outside the ambit of Entry 49 of List II 16. There is yet another reason why this tax cannot be regarded as being a tax on land. Section 3 read with the Schedule [and clauses (a), (b) and (c)] of the Act says that the tax is not on the surface of the land but is on the extent to which destruction has taken place. It is with reference to the extent of the empty space or the void which has been created as a result of the mining activity that the tax is levied. Tax, in effect, is levied on the absence of land and not on land itself. At the most this may be regarded as a tax in respect of land but it is certainly not a tax on land. The existing land or trees are not taxed, the tax is leviable only when a non-forest activity takes place and the land is not rehabilitated. Therefore, in pith and substance it is a tax on activity on land and not on land itself 17. Mr. Sibal placed strong reliance on the decision in the case of Goodricke Group Ltd. v. State of W. B. in support of his contention that the levy was on land itself and that the Act would be covered by Entry 49. Goodricke cases is clearly distinguishable. There education cess and rural employment cess were levied on certain lands and buildings in the State of West Bengal. The estates were carved out as a separate category and a different rate was prescribed therefor. The cess on tea estates was calculated on the basis of yield of tea whereas cess on other lands was determined having regard to the development value of the same. It was held that the tax was upon land though the cess was quantified on the basis of produce of the tea estate. In the present case, however, we do not find that the tax is on land. In fact what is sought to be taxed is in the absence of land. There being this fundamental difference the decision in Goodricke cases Can have no application merely because in that case the quantum of cess on the estate to be charged depended on the quantity of tea dispatched from the tea estate. The tax, in other words, was on the existing tea estate but, for the purpose of calculating the tax it was relatable to the quantum of the tea dispatched as a measure of the tax 18. One of the facets of tax being levied on land is that the primary responsibility of the payment of tax is on the owner of the land. In the instant case the levy is not on the general ownership of the land but is on the person who uses it and who may or may not be the owner. The primary liability is on the use by the occupier and if the occupier and the owner are two different persons the liability would be that of the occupier alone and not of the owner 19. The provisions of clauses (d), (e) and (f) of the Schedule to the Act, in effect and substance, amount to levy of tax on the use of forest land for non-forest purposes and for rehabilitating the forest land. The Forest Conservation Act, 1980 and the rules and guidelines made thereunder contain complete provisions for reclamation and rehabilitation of such land. Planting and replanting trees thereon is a matter clearly covered by the said Act and therefore, the said clauses (d) to (f) of the Schedule in the impugned Act directly impinge on the analogous provisions of the Forest Conservation Act, 1980 20. From the aforesaid discussion it is obvious that the present tax is one on the excavation and use of forest land and not on the forest land as such. Taxing of the undertaking of a non-forest activity in a forest land cannot be regarded as being covered by Entry 49 of the State List because what is sought to be taxed is not land but the tax is on absence of land or forest by reason of the activity of excavation and/or mining or use of forest land for a non-forest purpose. The High Court was, therefore, right in allowing the writ petitions filed by the respondents 21. As, in our opinion, legislative competence was lacking in the enactment of this Act, it is not necessary for us to consider the other questions or issues which were raised and decided by the High Court
### Response:
0
### Explanation:
The validity of the levy of cess on royalty charged for mining levied by the Cess Acts of the States of Orissa, Bihar, Bengal and Madhya Pradesh came up for consideration before this Court in the case of Orissa Cement Ltd. v. State of Orissa where again relying upon the earlier decisions, this Court held that tax on land envisaged by Entry 49 of List II must be one directly imposed on land, levied on land as a unit and bearing a direct relationship to it. The last authority which needs to be referred to in this connection is of State of Orissa v. Mahanadi Coalfields Ltd. where this Court was called upon to determine the competence of the State Legislature to levy tax ong lands levied under the Orissa Rural Employment, Education and Production Act, 1992. This Act had been promulgated with a view to provide additional resources for promotion of education and employment in rural areas and for implementing rural employment, education and production programmes. The Act sought to levy rural employment, education and production tax only ong land. The validity of the Act having been challenged, the High Court held that the State Legislature did not have the competence to levy tax on coal bearing land. In appeal the legislative competence was sought to be derived from Entry 49 of List II. Rejecting this contention and following the ratio of the earlier decisions of this Court, it was held that the levy in that case was in substance on minerals and mineral rights and not on land and was beyond the competence of the State Legislature and did not fall within Entry 49 of List II15. Applying the ratio of the aforesaid decisions to the facts of the present case we find that the position is no different. Entry 49 of List II has been interpreted to mean the levy of tax directly on land as a unit. The land has been regarded as meaning the land on surface and also below the surface. Therefore, in order that a tax can be levied under Entry 49 of List II it is essential that land as a unit must exist on which the tax is imposed. In the instant case the tax is, in effect, being levied not on land but on the absence of land. The levy is on the void which has been created. The forest land which is being used is not subjected to tax. The Schedule to the Act itself shows that the assessment of tax is on excavation and use of forest land fort purpose. The Schedule further says that the rate of tax to be levied, in the case of mining or excavation varies with the extent of the land voided. In case the land has been rehabilitated no tax is to be levied. The tax is levied in effect on the activity of the removal or excavation of land. In other words the tax is squarely on the activity of mining because it is under the mining lease that mechanized andd excavation as well as underground excavation takes place and this is what is referred to in column 1 of the Schedule to the Act while determining the amount of tax leviable. Levy in other words is on the activity of removal of earth and not on the land itself and is, therefore, outside the ambit of Entry 49 of List IIIn the present case, however, we do not find that the tax is on land. In fact what is sought to be taxed is in the absence of land. There being this fundamental difference the decision in Goodricke cases Can have no application merely because in that case the quantum of cess on the estate to be charged depended on the quantity of tea dispatched from the tea estate. The tax, in other words, was on the existing tea estate but, for the purpose of calculating the tax it was relatable to the quantum of the tea dispatched as a measure of the tax20. From the aforesaid discussion it is obvious that the present tax is one on the excavation and use of forest land and not on the forest land as such. Taxing of the undertaking of at activity in a forest land cannot be regarded as being covered by Entry 49 of the State List because what is sought to be taxed is not land but the tax is on absence of land or forest by reason of the activity of excavation and/or mining or use of forest land for at purpose. The High Court was, therefore, right in allowing the writ petitions filed by the respondents21. As, in our opinion, legislative competence was lacking in the enactment of this Act, it is not necessary for us to consider the other questions or issues which were raised and decided by the High Court
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R.V. Dnyansagar Vs. Maharashtra Industrial and Technical Consultancy Organisation Limited | person or persons appointed by the President, CSIR."The Governing Body of the Society is constituted by the :(a) Director General;(b) Member Finance;(c) Directors of two national laboratories;(d) Two eminent Scientists/Technologists, one of whom shall be from academia;(e) Heads of two scientific departments/agencies of the Government of India."12.The aspect of financial aid was noted in paragraph 55 of the report which reads thus:"55. The initial capital of CSIR was Rs.10 lakhs, made available pursuant to the Resolution of the Legislative Assembly on 14-11-1941. Paragraph 5 of the 26-9-1942 Resolution of the Government of India pursuant to which CSIR was formed reads :"The Government of India have decided that a fund, viz., the Industrial Research Fund, should be constituted by grants from the Central revenues to which additions are to be made from time to time as moneys flow in from other sources. These other sources will comprise grants, if any, by Provincial Governments, by industrialists for special or general purposes, contributions from universities or local bodies, donations or benefactions, royalties, etc., received from the development of the results of industrial research, and miscellaneous receipts. The Council of Scientific and Industrial Research will exercise full powers in regard to the expenditure to be met out of the Industrial Research Fund subject to its observing the bye-laws framed by the Governing Body of the Council, from time to time, with the approval of the Governor-General-in-Council, and to its annual budget being approved by the Governor-General-in-Council."13.In the light of the review of the judicial opinion as noted in the judgment, the majority view ultimately held that CSIR was a State within the meaning of Article 12 of the Constitution of India.14.As regards the respondent company nothing is produced by the petitioner indicating formation of the respondent company, its objects and functions and management and control which may lead us to hold that respondent company is a State within the meaning of Article 12. The primary burden was on the petitioner to produce material to establish that the respondent company was a State within the meaning of Article 12 of the Constitution of India, which he has failed to discharge. Because the shares of the respondent company prior to 1.6.1995 were held by Banks or Industrial Banks Infrastructure Corporation by itself would not make it State or agency or instrumentality of State within meaning of Article 12 of the Constitution of India. There is nothing on record to indicate that State Government has deep and pervasive control over the respondent. Pertinently the respondent company is not even a Government company within the meaning of Section 617 of the Companies Act. It is only a deemed Government company within the meaning of Section 619 B of the Companies Act whereby the provisions of Section 619 have been made applicable. Sections 619 and 619B of the Companies Act read thus:"619.(1) In the case of a Government company, the following provisions shall apply, notwithstanding anything contained in sections 224 to 233.(2) The auditor of a Government company shall be appointed or re-appointed by the Comptroller and Auditor-General of India;Provided that the limits specified in sub-sections (1B) and (1C) of Section 224 shall apply in relation to the appointment or re-appointment of an auditor under this sub-section.(3) The Comptroller and Auditor-General of India shall have power -(a) to direct the manner in which the companys accounts shall be audited by the auditor appointed in pursuance of sub-section (2) and to give such auditor instructions in regard to any matter relating to the performance of his functions as such;(b) to conduct a supplementary or test audit of the companys accounts by such person or persons as he may authorise in this behalf; and for the purposes of such audit, to require information or additional information to be furnished to any person or persons, so authorised, on such matters, by such person or persons, and in such form, as the Comptroller and Auditor-General may, by general or special order, direct.(4) The auditor aforesaid shall submit a copy of his audit report to the Comptroller and Auditor-General of India who shall have the right to comment upon, or supplement, the audit report in such manner as he may think fit.(5) Any such comments upon, or supplement to, the audit report shall be placed before the annual general meeting of the company at the same time and in the same manner as the audit report.619B. The provisions of section 619 shall apply to a company in which not less than fifty-one per cent of the paid-up share capital is held by one or more of the following or any combination thereof, as if it were a Government company, namely:-(a) the Central Government and one or more Government companies;(b) any State Government or Governments and one or more Government companies;(c) the Central Government, one or more State Governments and one or more Government companies;(d) the Central Government and one or more corporations owned or controlled by the Central Government;(e) the Central Government, one or more State Governments and one or more corporations owned or controlled by the Central Government;(f) one or more corporations owned or controlled by the Central Government or the State Government;(g) more than one Government company."15.What is provided by Section 169B is that the provisions of Section 619 shall be applicable to a company wherein not less than 51% of the paid up share capital is held by one or more of the combinations provided in clauses (a) to (g). In case of the respondent company prior to 1.6.1995 though it was covered by clause (g) of Section 619B as its shareholding was held by more than one Government company and accordingly Section 619 was applicable to it but that does not make it Government company within the meaning of Section 617. It is deemed to be Government company only for the purposes of Section 619 and as a result of which Sections 224 to 233 pertaining to audit of the company applicable to Government companies were also applicable to it. | 0[ds]6.In Mysore Paper Mills, inter alia the question posed before the Apex Court, whether Mysore Paper Mills which was a company incorporated under the Companies Act, 1956 and was a Government company as defined in Section 617 of the Companies Act was covered within the meaning of the word "State" as defined in Article 12 of the Constitution of India. In that case, in the judgment of the High Court as noted by the Apex Court the following facts were adverted before its status was held as of State within the meaning of Article 12:"(a) That theis a governmental company as per Section 617 of the Companies Act, 1956.(b) The declared objects of the company viz. 1,establish that the Company has been entrusted with an important function of public interest closely related to governmental functions and it enjoys monopoly status, which isThe functions entrusted to thego to show that the government operates behind a corporate veil carrying out governmental functions of vital importance and therefore, there is no difficulty in identifying theto be State within the meaning of Article 12 of the Constitution of India.(d) The summarized balance sheets for the years96 disclosed that more than 97% of the share capital has been contributed by the State of Karnataka and the financial institutions controlled and belonging to the Government of India.(e) The business of the Company which has to be managed by the Board of Directors (Article 114 of the articles of association) shall have the Chairman of the Board and Managing Director (Article 119) and four Directors of whom one will be the Chairman will be nominated by the Government of Karnataka who shall not retire by rotation or be removed from office except under the orders of the Government of Karnataka (Article 94). The Directors to whom the management is entrusted shall not be more than 12 or less than 9, inclusive of the government nominees and nominees of the financial institutions noticed under Articleand not only such nominees of financial institutions hold office so long as moneys remain owed to those institutions or those institutions hold debentures in the Company as a result of direct subscription or private placement, but the Board also has no powers to remove them during such period.(f) Theis found to be under the control of the Government of Karnatakasometimes directly and sometimes through the machinery of Karnataka State Bureau of Public Enterprises in respect of matters entrusted to it: as disclosed from the book published by the Department of Personnel and Administration Reforms of the Government of Karnataka.(g) Apart from the Directors who are nominees of the Government and the financial institutions controlled by the Central Government even the elected Directors were also to be nominated by the Government of Karnataka and one cannot become a Director of thewithout the concurrence or nomination by the Government.(h) Appointment of several officers, playing vital role in theadministration of the Company can be done only with the prior permission or approval of the Government of Karnataka. The General Manager also may be appointed on such terms and remunerations as may be fixed, only subject to the approval of the Government of Karnataka.(i) For any investment or expenditure above 25 lakhs the approval of the Government of Karnataka is required. Any revision of pay scales and allowances of employees and officers also have to be done only with the approval of KSBPE. Recruitments to posts carrying pay scales above Rs.4700 can only be with the permission of the Government and reservation policies under Article 16(4) of the Constitution are also applicable to recruitments by the Company. Deputation to Government and vice versa are also permitted. All foreign tours of officers have to be approved by the Government.(j) All loans taken by theare guaranteed by the Government of Karnataka.(k) The Company Secretary of thehas in his communication Annexure GGG declared that the same is an undertaking under the control of the Government ofunmistakable terms it was thus held by the Apex Court that the State Government of Karnataka has deep and pervasive control of the Mysore Paper Mills and itsadministration and accordingly it confirmed the finding of the High Court that the said company viz. Mysore Paper Mills was nothing but an instrumentality or agency of the State and the physical form of the company is merely a cloak or cover for the Government.9.The seven Judge Bench of the Supreme Court in Pradeep Kumar Biswas was dealing with the question whether the Council for Scientific and Industrial Research (CSIR) is a State within the meaning of Article 12 of the Constitution of India. Paragraph 40 of the majority judgment reads:"40. The picture that ultimately emerges is that the tests formulated in Ajay Hasia are not a rigid set of principles so that if a body falls within any one of them it must, ex hypothesi, be considered to be a State within the meaning of Article 12. The question in each case would be whether in the light of the cumulative facts as established, the body is financially, functionally and administratively dominated by or under the control of the Government. Such control must be particular to the body in question and must be pervasive. If this is found then the body is a State within Article 12. On the other hand, when the control is merely regulatory whether under statute or otherwise, it would not serve to make the body a State."10.The majority view of the Supreme Court, thus, emphasises that the question, whether an entity is a State within the meaning of Article 12 has to be decided by taking into consideration the cumulative facts as established and that whether such body or entity is financially, functionally and administratively dominated by or under the control of the Government. In other words, whether the State Government has deep and pervasive control to the body in question. If the control was merely regulatory, whether under Statute or otherwise, the body would not be a State within the meaning of Article 12. The formation of CSIR was noted in paragraph 42 of the report and its objects and functions are noted in paragraph 44 of the report which read thus:"42. Onthe Board of Scientific and Industrial Research and onthe Industrial Research Utilisation Committee were set up by the Department of Commerce, Government of India with the broad objective of promoting industrial growth in this country. Ona Resolution was passed by the Legislative Assembly and accepted by the Government of India to the following effect:"This Assembly recommends to thethat a fund called the Industrial Research Fund be constituted, for the purpose of fostering industrial development in this country and that provision be made in the budget for an annual grant of rupees ten lakhs to the fund for a period of fivethe light of the review of the judicial opinion as noted in the judgment, the majority view ultimately held that CSIR was a State within the meaning of Article 12 of the Constitution of India.14.As regards the respondent company nothing is produced by the petitioner indicating formation of the respondent company, its objects and functions and management and control which may lead us to hold that respondent company is a State within the meaning of Article 12. The primary burden was on the petitioner to produce material to establish that the respondent company was a State within the meaning of Article 12 of the Constitution of India, which he has failed to discharge. Because the shares of the respondent company prior to 1.6.1995 were held by Banks or Industrial Banks Infrastructure Corporation by itself would not make it State or agency or instrumentality of State within meaning of Article 12 of the Constitution of India. There is nothing on record to indicate that State Government has deep and pervasive control over the respondent. Pertinently the respondent company is not even a Government company within the meaning of Section 617 of the Companies Act. It is only a deemed Government company within the meaning of Section 619 B of the Companies Act whereby the provisions of Section 619 have been made applicable. Sections 619 and 619B of the Companies Act read thus:"619.(1) In the case of a Government company, the following provisions shall apply, notwithstanding anything contained in sections 224 to 233.(2) The auditor of a Government company shall be appointed orby the Comptroller andof India;Provided that the limits specified in(1B) and (1C) of Section 224 shall apply in relation to the appointment orof an auditor under thisThe Comptroller andof India shall haveto direct the manner in which the companys accounts shall be audited by the auditor appointed in pursuance of(2) and to give such auditor instructions in regard to any matter relating to the performance of his functions as such;(b) to conduct a supplementary or test audit of the companys accounts by such person or persons as he may authorise in this behalf; and for the purposes of such audit, to require information or additional information to be furnished to any person or persons, so authorised, on such matters, by such person or persons, and in such form, as the Comptroller andmay, by general or special order, direct.(4) The auditor aforesaid shall submit a copy of his audit report to the Comptroller andof India who shall have the right to comment upon, or supplement, the audit report in such manner as he may think fit.(5) Any such comments upon, or supplement to, the audit report shall be placed before the annual general meeting of the company at the same time and in the same manner as the audit report.619B. The provisions of section 619 shall apply to a company in which not less thanper cent of theshare capital is held by one or more of the following or any combination thereof, as if it were a Government company,the Central Government and one or more Government companies;(b) any State Government or Governments and one or more Government companies;(c) the Central Government, one or more State Governments and one or more Government companies;(d) the Central Government and one or more corporations owned or controlled by the Central Government;(e) the Central Government, one or more State Governments and one or more corporations owned or controlled by the Central Government;(f) one or more corporations owned or controlled by the Central Government or the State Government;(g) more than one Government company."15.What is provided by Section 169B is that the provisions of Section 619 shall be applicable to a company wherein not less than 51% of the paid up share capital is held by one or more of the combinations provided in clauses (a) to (g). In case of the respondent company prior to 1.6.1995 though it was covered by clause (g) of Section 619B as its shareholding was held by more than one Government company and accordingly Section 619 was applicable to it but that does not make it Government company within the meaning of Section 617. It is deemed to be Government company only for the purposes of Section 619 and as a result of which Sections 224 to 233 pertaining to audit of the company applicable to Government companies were also applicable to it. We are afraid, this would not make the respondent company a State or agency or instrumentality of State within the meaning of Article 12 of the Constitution of India.16.Besides that from reply affidavit filed on behalf of respondent company, it transpires that after 1.6.1995 the respondent company has even ceased to be deemed Government company under Section 619B of Companies Act because of substantial change in the Constitution and composition of its shareholders. The status of the respondent company, therefore, today is no better than a public limited company under the Companies Act. We are afraid, such company is not and cannot be amenable to the writ jurisdiction under Article 226 of the Constitution of India. | 0 | 4,306 | 2,208 | ### Instruction:
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person or persons appointed by the President, CSIR."The Governing Body of the Society is constituted by the :(a) Director General;(b) Member Finance;(c) Directors of two national laboratories;(d) Two eminent Scientists/Technologists, one of whom shall be from academia;(e) Heads of two scientific departments/agencies of the Government of India."12.The aspect of financial aid was noted in paragraph 55 of the report which reads thus:"55. The initial capital of CSIR was Rs.10 lakhs, made available pursuant to the Resolution of the Legislative Assembly on 14-11-1941. Paragraph 5 of the 26-9-1942 Resolution of the Government of India pursuant to which CSIR was formed reads :"The Government of India have decided that a fund, viz., the Industrial Research Fund, should be constituted by grants from the Central revenues to which additions are to be made from time to time as moneys flow in from other sources. These other sources will comprise grants, if any, by Provincial Governments, by industrialists for special or general purposes, contributions from universities or local bodies, donations or benefactions, royalties, etc., received from the development of the results of industrial research, and miscellaneous receipts. The Council of Scientific and Industrial Research will exercise full powers in regard to the expenditure to be met out of the Industrial Research Fund subject to its observing the bye-laws framed by the Governing Body of the Council, from time to time, with the approval of the Governor-General-in-Council, and to its annual budget being approved by the Governor-General-in-Council."13.In the light of the review of the judicial opinion as noted in the judgment, the majority view ultimately held that CSIR was a State within the meaning of Article 12 of the Constitution of India.14.As regards the respondent company nothing is produced by the petitioner indicating formation of the respondent company, its objects and functions and management and control which may lead us to hold that respondent company is a State within the meaning of Article 12. The primary burden was on the petitioner to produce material to establish that the respondent company was a State within the meaning of Article 12 of the Constitution of India, which he has failed to discharge. Because the shares of the respondent company prior to 1.6.1995 were held by Banks or Industrial Banks Infrastructure Corporation by itself would not make it State or agency or instrumentality of State within meaning of Article 12 of the Constitution of India. There is nothing on record to indicate that State Government has deep and pervasive control over the respondent. Pertinently the respondent company is not even a Government company within the meaning of Section 617 of the Companies Act. It is only a deemed Government company within the meaning of Section 619 B of the Companies Act whereby the provisions of Section 619 have been made applicable. Sections 619 and 619B of the Companies Act read thus:"619.(1) In the case of a Government company, the following provisions shall apply, notwithstanding anything contained in sections 224 to 233.(2) The auditor of a Government company shall be appointed or re-appointed by the Comptroller and Auditor-General of India;Provided that the limits specified in sub-sections (1B) and (1C) of Section 224 shall apply in relation to the appointment or re-appointment of an auditor under this sub-section.(3) The Comptroller and Auditor-General of India shall have power -(a) to direct the manner in which the companys accounts shall be audited by the auditor appointed in pursuance of sub-section (2) and to give such auditor instructions in regard to any matter relating to the performance of his functions as such;(b) to conduct a supplementary or test audit of the companys accounts by such person or persons as he may authorise in this behalf; and for the purposes of such audit, to require information or additional information to be furnished to any person or persons, so authorised, on such matters, by such person or persons, and in such form, as the Comptroller and Auditor-General may, by general or special order, direct.(4) The auditor aforesaid shall submit a copy of his audit report to the Comptroller and Auditor-General of India who shall have the right to comment upon, or supplement, the audit report in such manner as he may think fit.(5) Any such comments upon, or supplement to, the audit report shall be placed before the annual general meeting of the company at the same time and in the same manner as the audit report.619B. The provisions of section 619 shall apply to a company in which not less than fifty-one per cent of the paid-up share capital is held by one or more of the following or any combination thereof, as if it were a Government company, namely:-(a) the Central Government and one or more Government companies;(b) any State Government or Governments and one or more Government companies;(c) the Central Government, one or more State Governments and one or more Government companies;(d) the Central Government and one or more corporations owned or controlled by the Central Government;(e) the Central Government, one or more State Governments and one or more corporations owned or controlled by the Central Government;(f) one or more corporations owned or controlled by the Central Government or the State Government;(g) more than one Government company."15.What is provided by Section 169B is that the provisions of Section 619 shall be applicable to a company wherein not less than 51% of the paid up share capital is held by one or more of the combinations provided in clauses (a) to (g). In case of the respondent company prior to 1.6.1995 though it was covered by clause (g) of Section 619B as its shareholding was held by more than one Government company and accordingly Section 619 was applicable to it but that does not make it Government company within the meaning of Section 617. It is deemed to be Government company only for the purposes of Section 619 and as a result of which Sections 224 to 233 pertaining to audit of the company applicable to Government companies were also applicable to it.
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question. If the control was merely regulatory, whether under Statute or otherwise, the body would not be a State within the meaning of Article 12. The formation of CSIR was noted in paragraph 42 of the report and its objects and functions are noted in paragraph 44 of the report which read thus:"42. Onthe Board of Scientific and Industrial Research and onthe Industrial Research Utilisation Committee were set up by the Department of Commerce, Government of India with the broad objective of promoting industrial growth in this country. Ona Resolution was passed by the Legislative Assembly and accepted by the Government of India to the following effect:"This Assembly recommends to thethat a fund called the Industrial Research Fund be constituted, for the purpose of fostering industrial development in this country and that provision be made in the budget for an annual grant of rupees ten lakhs to the fund for a period of fivethe light of the review of the judicial opinion as noted in the judgment, the majority view ultimately held that CSIR was a State within the meaning of Article 12 of the Constitution of India.14.As regards the respondent company nothing is produced by the petitioner indicating formation of the respondent company, its objects and functions and management and control which may lead us to hold that respondent company is a State within the meaning of Article 12. The primary burden was on the petitioner to produce material to establish that the respondent company was a State within the meaning of Article 12 of the Constitution of India, which he has failed to discharge. Because the shares of the respondent company prior to 1.6.1995 were held by Banks or Industrial Banks Infrastructure Corporation by itself would not make it State or agency or instrumentality of State within meaning of Article 12 of the Constitution of India. There is nothing on record to indicate that State Government has deep and pervasive control over the respondent. Pertinently the respondent company is not even a Government company within the meaning of Section 617 of the Companies Act. It is only a deemed Government company within the meaning of Section 619 B of the Companies Act whereby the provisions of Section 619 have been made applicable. Sections 619 and 619B of the Companies Act read thus:"619.(1) In the case of a Government company, the following provisions shall apply, notwithstanding anything contained in sections 224 to 233.(2) The auditor of a Government company shall be appointed orby the Comptroller andof India;Provided that the limits specified in(1B) and (1C) of Section 224 shall apply in relation to the appointment orof an auditor under thisThe Comptroller andof India shall haveto direct the manner in which the companys accounts shall be audited by the auditor appointed in pursuance of(2) and to give such auditor instructions in regard to any matter relating to the performance of his functions as such;(b) to conduct a supplementary or test audit of the companys accounts by such person or persons as he may authorise in this behalf; and for the purposes of such audit, to require information or additional information to be furnished to any person or persons, so authorised, on such matters, by such person or persons, and in such form, as the Comptroller andmay, by general or special order, direct.(4) The auditor aforesaid shall submit a copy of his audit report to the Comptroller andof India who shall have the right to comment upon, or supplement, the audit report in such manner as he may think fit.(5) Any such comments upon, or supplement to, the audit report shall be placed before the annual general meeting of the company at the same time and in the same manner as the audit report.619B. The provisions of section 619 shall apply to a company in which not less thanper cent of theshare capital is held by one or more of the following or any combination thereof, as if it were a Government company,the Central Government and one or more Government companies;(b) any State Government or Governments and one or more Government companies;(c) the Central Government, one or more State Governments and one or more Government companies;(d) the Central Government and one or more corporations owned or controlled by the Central Government;(e) the Central Government, one or more State Governments and one or more corporations owned or controlled by the Central Government;(f) one or more corporations owned or controlled by the Central Government or the State Government;(g) more than one Government company."15.What is provided by Section 169B is that the provisions of Section 619 shall be applicable to a company wherein not less than 51% of the paid up share capital is held by one or more of the combinations provided in clauses (a) to (g). In case of the respondent company prior to 1.6.1995 though it was covered by clause (g) of Section 619B as its shareholding was held by more than one Government company and accordingly Section 619 was applicable to it but that does not make it Government company within the meaning of Section 617. It is deemed to be Government company only for the purposes of Section 619 and as a result of which Sections 224 to 233 pertaining to audit of the company applicable to Government companies were also applicable to it. We are afraid, this would not make the respondent company a State or agency or instrumentality of State within the meaning of Article 12 of the Constitution of India.16.Besides that from reply affidavit filed on behalf of respondent company, it transpires that after 1.6.1995 the respondent company has even ceased to be deemed Government company under Section 619B of Companies Act because of substantial change in the Constitution and composition of its shareholders. The status of the respondent company, therefore, today is no better than a public limited company under the Companies Act. We are afraid, such company is not and cannot be amenable to the writ jurisdiction under Article 226 of the Constitution of India.
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Raymond Synthetics Limited and Others Vs. Union of India and Others | and these two circumstances can never be imagined to be unforeseen circumstances. We need not examine the claim as to whether the two circumstances were unforeseen circumstances which prevented the Company from completing the process of refund of money. We will assume that the Company was prevented from completing the process of refund within the stipulated period and then examine as to whether doctrine of impossibility of performance can be invoked in the facts and circumstances of the case. Shri Nariman referred to the passage in Brooms Maxims to the following effect :"The law itself and the administration of it, said Sir W. Scott, with reference to an alleged infraction of the revenue laws, must yield to that to which everything must bend, to necessity; the law, in its most positive and peremptory injunctions, is understood to disclaim, as it does in its general aphorisms, all intention of compelling to impossibilities, and the administration of laws must adopt that general exception in the consideration of all particular cases..... It is, then, a general rule which admits of ample practical illustration, that impotentia excusat legem; where the law creates a duty or charge, and the party is disabled to preform it, without any default in him, and has no remedy over, that the law will in general excuse him; and though impossibility of performance is in general no excuse for not performing an obligation which a party has expressly undertaken by contract, yet when the obligation is one implied by law, impossibility of performance is a good excuse."Shri Nariman submitted that the Company was impossible to perform the obligation to refund the excess amount within the stipulated period and therefore, should be relieved of the liability to pay interest as prescribed under sub-section (2-A) of section 73 of the Companies Act. We are unable to find any merit in the submission. We are not sure whether the Company was prevented from performing the obligation for two excuses set up by the Company, but even assuming that these two reasons are sufficient to lead to the conclusion that the Company was unable to perform the obligation to refund the excess amount for reason beyond their control, still the doctrine of impossibility of performance is not attracted to the facts of the present case. In our judgment, the Court should invoke the doctrine only in cases where the absolute nature of obligation leads to the harshness or adversely affects the party who has to carry out obligation and further leads to injustice. On the facts of the present case we have no hesitation in concluding that the obligation to pay interest costs no hardship whatsoever to the Company, but permitting the Company to retain the excess amount beyond the stipulated period without payment of interest would certainly cause serious prejudice to the interest of the investor. Shri Nariman submitted that sub-section (3) of section 73 requires the Company to keep all the moneys received in pursuance of prospectus in a separate bank account and sub-section (3-A) does not permit utilisation of that money for any purpose other than adjustment against allotment of shares or repayment of moneys. The learned Counsel urged that as the Company had not earned any interest on the excess amount which was required to be repaid within the stipulated period, the obligation to pay interest caused hardship. The submission is not correct. It is not necessary for the Company to keep the amount locked up in the account in pursuances of provisions of sub-section (3) of section 73. The Reserve Bank of India had issued circular dated July 13, 1990 to all scheduled commercial Banks in regard to the application moneys for issued of shares, debentures etc. and utilisation thereof. The circular recites that earlier the Banks were advised that Company should not be permitted to utilise the subscription moneys for any purpose other than those specifically mentioned in section 73(3-A) of the Companies Act. The circular then recites that it is permissible for the Banks to invest on request of the Company the application moneys received in interest bearing short term deposits. The short-term deposits are to be allowed interest at the rates prescribed in the directives of the Reserve Bank on interest rates for the relevant periods. This circular makes it extremely clear that it is open for the Company to request the bankers to invest the amount received from the investor in interest bearing short term deposits and the Company will certainly earn interest. It is therefore futile to suggest that the amount which is required to be refunded to the investor lies locked up in the account and would not confer any benefit upon the Company. The Company would certainly enjoy the benefit of earning interest by keeping the amount in the interest bearing short term deposits. Shri Bhabha submitted that the amount of interest which the Company is required to pay to the investor is about Rs. 4 crores. The Company after securing a large amount from the investor cannot be permitted to enjoy that amount by investing in interest bearing short term deposits and then plead that the investor should be deprived of the right to earn interest conferred by sub-section (2-A) of section 73 of the Companies Act. In these circumstances we decline in exercise of our writ jurisdiction under Article 226 of the Constitution of India to invoke the doctrine of impossibility of performance. In our judgment, the petitioners are not entitled to any relief and the petition is nothing but an attempt to deprive the investor of the advantage of payment of interest in respect of repayment of excess money beyond the stipulated period. The Company by filing the present petition desires to enjoy the interest on a large amount which is really due to the investing public.We wish to record that though the petition raises several issues and several reliefs were asked for, Shri Nariman did not agitate any contentions save and except those referred to in the judgment. | 0[ds]In our judgment, the submission of Shri Nariman that the expression "forthwith" does not require payment at once of immediately but such payment is permissible within a reasonable time if circumstances so warrant, cannot be accepted in the facts and circumstances of the present case. The expression "forthwith" will have a different meaning according to the act which is to be performed. There are certain ministerial acts where the requirement of immediate performance can be construed as performance within the reasonable time, but there are other acts which demand performance forthwith without exception and in such cases it is not permissible to allow performance with the reasonableLegislature had in contemplation that though the expression "forthwith" is used, it may require some reasonable time to make payment and therefore permitted grace period of eight days before liability to repay with interest arises. In other words the Legislature was fully conscious that the expression "forthwith", as claimed by Shri Nariman," may be construed as within a reasonable time and not at once. The Legislature in its wisdom therefore permitted grace period of eight days before requiring the Company and the directors to repay the amount with interest. Once it is obvious that Legislature had in contemplation that there may be delay for unforeseen circumstances in making repayment forthwith and therefore some grance period is required, then it is not permissible for the courts to find out whether still further time can be granted for repayment by resort to the unforeseen circumstances. In our judgment, the provisions of) of section 73of the CompaniesAct are absolute in nature and once the Company fails to repay the excess amount within the grace period of eight days as contemplated by the section, then there is no escape from payment of interest irrespective of the circumstances which the Company mayare unable to find any merit in this submission for more than one reason. In the first instance Shri. Nariman was unable to point out any source of power in the Stock Exchange to grant such extension. Our repeated enquires with Shri Dwarkadas, who appeared on behalf of Madhya Pradesh Stock Exchange, did not elicit any material to indicate that the Stock Exchange has power to entertain application for extension of stipulated period. Apart from the fact that provisions of) of section 73of the CompaniesAct are absolute in nature, the section does not refer to any authority, including the Government of India, who could extend the stipulated period for refund of the excess amount. We are also unable to gather any material from the Company or the Madhya Pradesh Stock Exchange to conclude that the Stock Exchange can extend that period for unforeseenis not possible to accede to the submission of the learned Counsel for several reasons. In the first instance the provisions of) of section 73of the CompaniesAct are absolute in nature and do not leave any scope for any authority to extend the period on accrual of liability to refund or to pay interest. The liability to refund the excess amount arises forthwith on allotment of shares and the liability to pay interest accrues on expiry of eight grace days. Neither the Stock Exchange nor the Government have any authority to extend the stipulated period of ten weeks from the date of closure of the subscriptions list mentioned in the prospectus for refund of the amount and even though the Stock Exchange informs the Company that the time is extended for making refund, that would not wipe out the liability to pay interest at the expiry of the gracealso enquired as to whether there is any agreement between the Company and the Stock Exchange conferring authority on the Stock Exchange to extend the period for unforeseen circumstances, and the answer was in the negative.Thirdly, the contention that the authority flows from the prospectus is entirely unsustainable because the mere recital in the prospectus authorising stock exchange to permit Company to refund the excess amount beyond the period of ten weeks from the closure of the subscription list in the event of unforeseen circumstances does not confer such authority on the Stock Exchange, nor can take away the substantial right conferred by) of section 73upon the investing public. The submission of Shri Nariman that as the prospectus amounts to contract between the investor and the Company, the investor cannot challenge the authority conferred on the Stock Exchange is required to be turned down in view of provisions of) of section 73of the Companiesn (4) prescribes that any condition requiring or binding any applicant for shares or debentures to waive compliance with requirements of section 73 shall be void. It is therefore obvious that even assuming that the investor had bound himself to waive compliance with) of sectionsuch condition cannot bind the investor, the condition being void. In our judgment, it is not open for the Company to urge with reference to the contents of the prospectus that it is permissible for the Company to travel beyond the stipulated period for refund of excess amount on the Stock Exchange being satisfied that refund cannot be made within the stipulated period. It is also not possible to accede to the submission that the liability to pay interest contemplated under) of sectionof the CompaniesAct is suspended or wiped out when Stock Exchange is satisfied that refund of excess amount cannot be completed within the stipulated period. In our judgment, the Legislature, with a view to protect the interest of the investor, provided that the refund of excess amount should be made forthwith and granted a grace period of eight days, but on expiry of that period the liability to pay interest is absolute and is not subject to satisfaction of the Stock Exchange about the unforeseen circumstances. It is also not possible to spell out power of extension in favour of the Stock Exchange merely because the Stock Exchange have exercised such power in some instances and have approved the prospectus containing averments to thatNariman submitted that the proviso to) prior to its election clearly indicates that the Legislature did not wish to impose liability on the directors unless the liability has accrued due to any misconduct or negligence on the part of the directors. It was urged that this is acircumstance to indicate that though the Legislature used the expression "forthwith" in) of sectionthe liability to pay is not absolute but is subject to any unforeseen circumstances, and in case the repayment is not done forthwith, still liability to pay interest by directors would not arise if it is established that the failure to repay was not due to any misconduct of the directors. The submission is controverted by Shri Cooper and Shri Andhyarujina by pointing out that the proviso to) was embodied by the Legislature with a view to making the requirement of) very rigorous. The Legislature felt that it is not desirable that the Company should retain the excess amount beyond the stipulated period and after expiry of the grace days earn advantage and deprive the investor of the use of the money. The submission is correct and deserves acceptance. The deletion of the proviso is indicative of the fact that the Legislature desired that the investor should earn interest on the excess amount after the stipulated period and that right to earn interest for deprival of the amount has nothing to do with any circumstance in which the Company is placed. It is possible that there may be unforeseen circumstances for inability of the Company to refund the amount within the stipulated period, but the end result is that the amount was retained by the Company and the investor was deprived of the enjoyment of this amount. It is therefore obvious that the omission of the proviso to) is one of the circumstance to hold that) of sectionis absolute in nature and does not permit any relaxation in respect of payment ofare not impressed by the submission. Payment of interest is not penal but is merely compensatory in the facts and circumstances of the case. The Company is required to pay interest because the excess amount was retained beyond the stipulated period and the investor is deprived of the use of the said amount. To compensate the investor for the loss of the amount beyond the stipulated period the Company is directed to pay interest and that in our judgement, is clearly compensatory in nature and not penal. The penal provision for default in compliance with the provisions of) is set out in) of sectionupon use of the expression "penal provisions" Shir Nariman submitted that the Legislature accepted that the provision for payment of interest is penal in character. We are not prepared to accede to the submission. The use of the expression "penal provisions" in the Note to the Amendment Bill cannot determine the nature or character of the liability. In our judgment the liability to pay interest is purely compensatory in nature and the Company cannot avoid the liability on any countneed not examine the claim as to whether the two circumstances were unforeseen circumstances which prevented the Company from completing the process of refund of money. We will assume that the Company was prevented from completing the process of refund within the stipulated period and then examine as to whether doctrine of impossibility of performance can be invoked in the facts and circumstances of theare unable to find any merit in the submission. We are not sure whether the Company was prevented from performing the obligation for two excuses set up by the Company, but even assuming that these two reasons are sufficient to lead to the conclusion that the Company was unable to perform the obligation to refund the excess amount for reason beyond their control, still the doctrine of impossibility of performance is not attracted to the facts of the present case. In our judgment, the Court should invoke the doctrine only in cases where the absolute nature of obligation leads to the harshness or adversely affects the party who has to carry out obligation and further leads to injustice. On the facts of the present case we have no hesitation in concluding that the obligation to pay interest costs no hardship whatsoever to the Company, but permitting the Company to retain the excess amount beyond the stipulated period without payment of interest would certainly cause serious prejudice to the interest of the investor. Shri Nariman submitted that) of sectionrequires the Company to keep all the moneys received in pursuance of prospectus in a separate bank account and) does not permit utilisation of that money for any purpose other than adjustment against allotment of shares or repayment of moneys. The learned Counsel urged that as the Company had not earned any interest on the excess amount which was required to be repaid within the stipulated period, the obligation to pay interest caused hardship. The submission is not correct. It is not necessary for the Company to keep the amount locked up in the account in pursuances of provisions of) of sectionThe Reserve Bank of India had issued circular dated July 13, 1990 to all scheduled commercial Banks in regard to the application moneys for issued of shares, debentures etc. and utilisation thereof. The circular recites that earlier the Banks were advised that Company should not be permitted to utilise the subscription moneys for any purpose other than those specifically mentioned in sectionof the CompaniesAct. The circular then recites that it is permissible for the Banks to invest on request of the Company the application moneys received in interest bearing short term deposits. Thedeposits are to be allowed interest at the rates prescribed in the directives of the Reserve Bank on interest rates for the relevant periods. This circular makes it extremely clear that it is open for the Company to request the bankers to invest the amount received from the investor in interest bearing short term deposits and the Company will certainly earn interest. It is therefore futile to suggest that the amount which is required to be refunded to the investor lies locked up in the account and would not confer any benefit upon the Company. The Company would certainly enjoy the benefit of earning interest by keeping the amount in the interest bearing short term deposits. Shri Bhabha submitted that the amount of interest which the Company is required to pay to the investor is about Rs. 4 crores. The Company after securing a large amount from the investor cannot be permitted to enjoy that amount by investing in interest bearing short term deposits and then plead that the investor should be deprived of the right to earn interest conferred by) of sectionof the CompaniesIn these circumstances we decline in exercise of our writ jurisdiction under Article 226 of the Constitution of India to invoke the doctrine of impossibility of performance. In our judgment, the petitioners are not entitled to any relief and the petition is nothing but an attempt to deprive the investor of the advantage of payment of interest in respect of repayment of excess money beyond the stipulated period. The Company by filing the present petition desires to enjoy the interest on a large amount which is really due to the investing public.We wish to record that though the petition raises several issues and several reliefs were asked for, Shri Nariman did not agitate any contentions save and except those referred to in the judgment. | 0 | 10,057 | 2,380 | ### 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:
and these two circumstances can never be imagined to be unforeseen circumstances. We need not examine the claim as to whether the two circumstances were unforeseen circumstances which prevented the Company from completing the process of refund of money. We will assume that the Company was prevented from completing the process of refund within the stipulated period and then examine as to whether doctrine of impossibility of performance can be invoked in the facts and circumstances of the case. Shri Nariman referred to the passage in Brooms Maxims to the following effect :"The law itself and the administration of it, said Sir W. Scott, with reference to an alleged infraction of the revenue laws, must yield to that to which everything must bend, to necessity; the law, in its most positive and peremptory injunctions, is understood to disclaim, as it does in its general aphorisms, all intention of compelling to impossibilities, and the administration of laws must adopt that general exception in the consideration of all particular cases..... It is, then, a general rule which admits of ample practical illustration, that impotentia excusat legem; where the law creates a duty or charge, and the party is disabled to preform it, without any default in him, and has no remedy over, that the law will in general excuse him; and though impossibility of performance is in general no excuse for not performing an obligation which a party has expressly undertaken by contract, yet when the obligation is one implied by law, impossibility of performance is a good excuse."Shri Nariman submitted that the Company was impossible to perform the obligation to refund the excess amount within the stipulated period and therefore, should be relieved of the liability to pay interest as prescribed under sub-section (2-A) of section 73 of the Companies Act. We are unable to find any merit in the submission. We are not sure whether the Company was prevented from performing the obligation for two excuses set up by the Company, but even assuming that these two reasons are sufficient to lead to the conclusion that the Company was unable to perform the obligation to refund the excess amount for reason beyond their control, still the doctrine of impossibility of performance is not attracted to the facts of the present case. In our judgment, the Court should invoke the doctrine only in cases where the absolute nature of obligation leads to the harshness or adversely affects the party who has to carry out obligation and further leads to injustice. On the facts of the present case we have no hesitation in concluding that the obligation to pay interest costs no hardship whatsoever to the Company, but permitting the Company to retain the excess amount beyond the stipulated period without payment of interest would certainly cause serious prejudice to the interest of the investor. Shri Nariman submitted that sub-section (3) of section 73 requires the Company to keep all the moneys received in pursuance of prospectus in a separate bank account and sub-section (3-A) does not permit utilisation of that money for any purpose other than adjustment against allotment of shares or repayment of moneys. The learned Counsel urged that as the Company had not earned any interest on the excess amount which was required to be repaid within the stipulated period, the obligation to pay interest caused hardship. The submission is not correct. It is not necessary for the Company to keep the amount locked up in the account in pursuances of provisions of sub-section (3) of section 73. The Reserve Bank of India had issued circular dated July 13, 1990 to all scheduled commercial Banks in regard to the application moneys for issued of shares, debentures etc. and utilisation thereof. The circular recites that earlier the Banks were advised that Company should not be permitted to utilise the subscription moneys for any purpose other than those specifically mentioned in section 73(3-A) of the Companies Act. The circular then recites that it is permissible for the Banks to invest on request of the Company the application moneys received in interest bearing short term deposits. The short-term deposits are to be allowed interest at the rates prescribed in the directives of the Reserve Bank on interest rates for the relevant periods. This circular makes it extremely clear that it is open for the Company to request the bankers to invest the amount received from the investor in interest bearing short term deposits and the Company will certainly earn interest. It is therefore futile to suggest that the amount which is required to be refunded to the investor lies locked up in the account and would not confer any benefit upon the Company. The Company would certainly enjoy the benefit of earning interest by keeping the amount in the interest bearing short term deposits. Shri Bhabha submitted that the amount of interest which the Company is required to pay to the investor is about Rs. 4 crores. The Company after securing a large amount from the investor cannot be permitted to enjoy that amount by investing in interest bearing short term deposits and then plead that the investor should be deprived of the right to earn interest conferred by sub-section (2-A) of section 73 of the Companies Act. In these circumstances we decline in exercise of our writ jurisdiction under Article 226 of the Constitution of India to invoke the doctrine of impossibility of performance. In our judgment, the petitioners are not entitled to any relief and the petition is nothing but an attempt to deprive the investor of the advantage of payment of interest in respect of repayment of excess money beyond the stipulated period. The Company by filing the present petition desires to enjoy the interest on a large amount which is really due to the investing public.We wish to record that though the petition raises several issues and several reliefs were asked for, Shri Nariman did not agitate any contentions save and except those referred to in the judgment.
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0
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there may be unforeseen circumstances for inability of the Company to refund the amount within the stipulated period, but the end result is that the amount was retained by the Company and the investor was deprived of the enjoyment of this amount. It is therefore obvious that the omission of the proviso to) is one of the circumstance to hold that) of sectionis absolute in nature and does not permit any relaxation in respect of payment ofare not impressed by the submission. Payment of interest is not penal but is merely compensatory in the facts and circumstances of the case. The Company is required to pay interest because the excess amount was retained beyond the stipulated period and the investor is deprived of the use of the said amount. To compensate the investor for the loss of the amount beyond the stipulated period the Company is directed to pay interest and that in our judgement, is clearly compensatory in nature and not penal. The penal provision for default in compliance with the provisions of) is set out in) of sectionupon use of the expression "penal provisions" Shir Nariman submitted that the Legislature accepted that the provision for payment of interest is penal in character. We are not prepared to accede to the submission. The use of the expression "penal provisions" in the Note to the Amendment Bill cannot determine the nature or character of the liability. In our judgment the liability to pay interest is purely compensatory in nature and the Company cannot avoid the liability on any countneed not examine the claim as to whether the two circumstances were unforeseen circumstances which prevented the Company from completing the process of refund of money. We will assume that the Company was prevented from completing the process of refund within the stipulated period and then examine as to whether doctrine of impossibility of performance can be invoked in the facts and circumstances of theare unable to find any merit in the submission. We are not sure whether the Company was prevented from performing the obligation for two excuses set up by the Company, but even assuming that these two reasons are sufficient to lead to the conclusion that the Company was unable to perform the obligation to refund the excess amount for reason beyond their control, still the doctrine of impossibility of performance is not attracted to the facts of the present case. In our judgment, the Court should invoke the doctrine only in cases where the absolute nature of obligation leads to the harshness or adversely affects the party who has to carry out obligation and further leads to injustice. On the facts of the present case we have no hesitation in concluding that the obligation to pay interest costs no hardship whatsoever to the Company, but permitting the Company to retain the excess amount beyond the stipulated period without payment of interest would certainly cause serious prejudice to the interest of the investor. Shri Nariman submitted that) of sectionrequires the Company to keep all the moneys received in pursuance of prospectus in a separate bank account and) does not permit utilisation of that money for any purpose other than adjustment against allotment of shares or repayment of moneys. The learned Counsel urged that as the Company had not earned any interest on the excess amount which was required to be repaid within the stipulated period, the obligation to pay interest caused hardship. The submission is not correct. It is not necessary for the Company to keep the amount locked up in the account in pursuances of provisions of) of sectionThe Reserve Bank of India had issued circular dated July 13, 1990 to all scheduled commercial Banks in regard to the application moneys for issued of shares, debentures etc. and utilisation thereof. The circular recites that earlier the Banks were advised that Company should not be permitted to utilise the subscription moneys for any purpose other than those specifically mentioned in sectionof the CompaniesAct. The circular then recites that it is permissible for the Banks to invest on request of the Company the application moneys received in interest bearing short term deposits. Thedeposits are to be allowed interest at the rates prescribed in the directives of the Reserve Bank on interest rates for the relevant periods. This circular makes it extremely clear that it is open for the Company to request the bankers to invest the amount received from the investor in interest bearing short term deposits and the Company will certainly earn interest. It is therefore futile to suggest that the amount which is required to be refunded to the investor lies locked up in the account and would not confer any benefit upon the Company. The Company would certainly enjoy the benefit of earning interest by keeping the amount in the interest bearing short term deposits. Shri Bhabha submitted that the amount of interest which the Company is required to pay to the investor is about Rs. 4 crores. The Company after securing a large amount from the investor cannot be permitted to enjoy that amount by investing in interest bearing short term deposits and then plead that the investor should be deprived of the right to earn interest conferred by) of sectionof the CompaniesIn these circumstances we decline in exercise of our writ jurisdiction under Article 226 of the Constitution of India to invoke the doctrine of impossibility of performance. In our judgment, the petitioners are not entitled to any relief and the petition is nothing but an attempt to deprive the investor of the advantage of payment of interest in respect of repayment of excess money beyond the stipulated period. The Company by filing the present petition desires to enjoy the interest on a large amount which is really due to the investing public.We wish to record that though the petition raises several issues and several reliefs were asked for, Shri Nariman did not agitate any contentions save and except those referred to in the judgment.
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Umadevi Bhuwalka Vs. Commissioner of Income Tax, West Bengal | the appellants believed that his right, title and interest under the partnership created by the document of 1939, passed to Radha Raman Shaw (representing the heirs and successors of Uma Charan Shaw). It is stated in the recitals that from that day the business of the partnership styled as Uma Charan Shaw & Bros. was carried on with Radha Raman as one of the partners7. The deed then goes on to recite that "the capital of the co-partnership shall be the amount as will be found to the credit of the parties thereof". The deed allowed the parties to draw from time to time reasonable amounts for their respective personal expenditure to be adjusted at the time of the determination of profit and loss of the year. These profits and losses were to be distributed equally between the partners. It was further provided as follows" That for properly carrying on with this co-partnership business account/accounts with reputed bank/banks shall be opened in the name of the co-partnership firm or in any other name/names as may be agreed uponIf agreed upon by and between the partners the parties hereof may continue to operate the existing account/accounts with different bank/banks or close down the same as and when necessary. Such bank account/accounts shall unless otherwise agreed upon be operated jointly and/or severally by the partners." *8. It is contended that these provisions were designed to create a veneer of partnership for income-tax purposes, while the joint family continued as before. By keeping the accounts as hitherto by the partners, the outside world was not informed that the Hindu undivided family had disrupted. The decisions rendered in the case are said to involve a finding of fact, and it is contended for the Department that there was material on which the finding could be rested. Though the Tribunal stated that it had not proceeded on the ground that the partnership was illegal being against the Bengal Excise Act, 1911, the argument was referred to as supporting the conclusion that the firm was not genuine. Section 42(1)(a) of the Bengal Excise Act reads" 42.(1) Subject to such restrictions as the State Government may prescribe the authority who granted any licence, permit or pass under this Act may cancel or suspend it(a) if it is transferred or sub-let by the holder thereof without the permission of the said authority. " *9. There was no evidence that the excise licences were transferred or sub-let. The three shops, it appears, were managed separately and their accounts were kept distinct. There was thus nothing which militated against the partnership and it cannot be said that this affected the genuineness of the agreement. Extracts from the Bali Khata have been exhibited in this case. They show the capital account of the partners, their drawings from time to time and their profits separately. There is nothing to show that the entries in the Bali Khata were different from the other account books and the Bali Khata served as an abstract of all the business of the partnership. That it was not shown to the excise authorities does not prove that the book was not genuine. This account has been in existence ever since the first partnership agreement, and nothing has been said to establish that it was not regularly maintained in the ordinary course of business. Similarly, the bank accounts were left in the names of the licensees in order to keep the various businesses separate and distinct. The partnership deed provided for this, and there was nothing which made the partnership doubtful. The maintenance of these bank accounts cannot be said to furnish a veneer of partnership while underneath the family continued undisturbedNo doubt, the family continued as Hindu undivided family for nearly three decades, but there was nothing to prevent a family from disrupting and forming a partnership. The earlier decision was not res judicata, and the family could on a subsequent date enter into a fresh agreement with new partners and ask for its registration. This is what was done in 1947, and the occasion was the death of Uma Charan in that year. It must not be forgotten that Uma Charan was the eldest and must have been the senior partner. With his death the need for further adjustments arose, and a fresh document was executed10. The Department contends that one of the unusual features was that though the balances of the partners were fluctuating as their drawings were made, the profits continued to be divided equally. This is no doubt an unusual feature, but it depends upon how the drawings were considered by others. There was an arrangement in the deed itself for such drawings, and looking at the circumstances of the family the drawings during a year could not be said to be too extensive as others had withdrawn large sums also in their turn11. Taking into consideration the entire circumstances of the case, we are satisfied that there was no material on which the Income-tax Officer could come to the conclusion that the firm was not genuine. There are many surmises and conjectures, and the conclusion is the result of suspicion which cannot take the place of proof in these matters12. It was contended that there were three orders, viz., the order of assessment, the order under section 25A and the one under section 26A, and merely reversing the order under section 26A cannot be of any consequence particularly as the order under section 25A stands. We are not concerned in these appeals in deciding what advantage will accrue to the appellant firm. That is its look-out, and we do not, therefore, accept the argumentThe result is that the order of the Appellate Tribunal is reversed. The firm shall be registered under section 26A of the Act for the assessment year 1948-49. The appeal against the order of the High Court need not be considered, since it is not necessary to pass any orders thereon. There will be no order in that appeal | 1[ds]9. There was no evidence that the excise licences were transferred orThe three shops, it appears, were managed separately and their accounts were kept distinct. There was thus nothing which militated against the partnership and it cannot be said that this affected the genuineness of the agreement. Extracts from the Bali Khata have been exhibited in this case. They show the capital account of the partners, their drawings from time to time and their profits separately. There is nothing to show that the entries in the Bali Khata were different from the other account books and the Bali Khata served as an abstract of all the business of the partnership. That it was not shown to the excise authorities does not prove that the book was not genuine. This account has been in existence ever since the first partnership agreement, and nothing has been said to establish that it was not regularly maintained in the ordinary course of business. Similarly, the bank accounts were left in the names of the licensees in order to keep the various businesses separate and distinct. The partnership deed provided for this, and there was nothing which made the partnership doubtful. The maintenance of these bank accounts cannot be said to furnish a veneer of partnership while underneath the family continued undisturbedNo doubt, the family continued as Hindu undivided family for nearly three decades, but there was nothing to prevent a family from disrupting and forming a partnership. The earlier decision was not res judicata, and the family could on a subsequent date enter into a fresh agreement with new partners and ask for its registration. This is what was done in 1947, and the occasion was the death of Uma Charan in that year. It must not be forgotten that Uma Charan was the eldest and must have been the senior partner. With his death the need for further adjustments arose, and a fresh document wasis no doubt an unusual feature, but it depends upon how the drawings were considered by others. There was an arrangement in the deed itself for such drawings, and looking at the circumstances of the family the drawings during a year could not be said to be too extensive as others had withdrawn large sums also in their turn11. Taking into consideration the entire circumstances of the case, we are satisfied that there was no material on which theOfficer could come to the conclusion that the firm was not genuine. There are many surmises and conjectures, and the conclusion is the result of suspicion which cannot take the place of proof in theseare not concerned in these appeals in deciding what advantage will accrue to the appellant firm. That is itsand we do not, therefore, accept the argumentThe result is that the order of the Appellate Tribunal is reversed. The firm shall be registered under section 26A of the Act for the assessment yearThe appeal against the order of the High Court need not be considered, since it is not necessary to pass any orders thereon. There will be no order in that appeal | 1 | 3,036 | 560 | ### 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 appellants believed that his right, title and interest under the partnership created by the document of 1939, passed to Radha Raman Shaw (representing the heirs and successors of Uma Charan Shaw). It is stated in the recitals that from that day the business of the partnership styled as Uma Charan Shaw & Bros. was carried on with Radha Raman as one of the partners7. The deed then goes on to recite that "the capital of the co-partnership shall be the amount as will be found to the credit of the parties thereof". The deed allowed the parties to draw from time to time reasonable amounts for their respective personal expenditure to be adjusted at the time of the determination of profit and loss of the year. These profits and losses were to be distributed equally between the partners. It was further provided as follows" That for properly carrying on with this co-partnership business account/accounts with reputed bank/banks shall be opened in the name of the co-partnership firm or in any other name/names as may be agreed uponIf agreed upon by and between the partners the parties hereof may continue to operate the existing account/accounts with different bank/banks or close down the same as and when necessary. Such bank account/accounts shall unless otherwise agreed upon be operated jointly and/or severally by the partners." *8. It is contended that these provisions were designed to create a veneer of partnership for income-tax purposes, while the joint family continued as before. By keeping the accounts as hitherto by the partners, the outside world was not informed that the Hindu undivided family had disrupted. The decisions rendered in the case are said to involve a finding of fact, and it is contended for the Department that there was material on which the finding could be rested. Though the Tribunal stated that it had not proceeded on the ground that the partnership was illegal being against the Bengal Excise Act, 1911, the argument was referred to as supporting the conclusion that the firm was not genuine. Section 42(1)(a) of the Bengal Excise Act reads" 42.(1) Subject to such restrictions as the State Government may prescribe the authority who granted any licence, permit or pass under this Act may cancel or suspend it(a) if it is transferred or sub-let by the holder thereof without the permission of the said authority. " *9. There was no evidence that the excise licences were transferred or sub-let. The three shops, it appears, were managed separately and their accounts were kept distinct. There was thus nothing which militated against the partnership and it cannot be said that this affected the genuineness of the agreement. Extracts from the Bali Khata have been exhibited in this case. They show the capital account of the partners, their drawings from time to time and their profits separately. There is nothing to show that the entries in the Bali Khata were different from the other account books and the Bali Khata served as an abstract of all the business of the partnership. That it was not shown to the excise authorities does not prove that the book was not genuine. This account has been in existence ever since the first partnership agreement, and nothing has been said to establish that it was not regularly maintained in the ordinary course of business. Similarly, the bank accounts were left in the names of the licensees in order to keep the various businesses separate and distinct. The partnership deed provided for this, and there was nothing which made the partnership doubtful. The maintenance of these bank accounts cannot be said to furnish a veneer of partnership while underneath the family continued undisturbedNo doubt, the family continued as Hindu undivided family for nearly three decades, but there was nothing to prevent a family from disrupting and forming a partnership. The earlier decision was not res judicata, and the family could on a subsequent date enter into a fresh agreement with new partners and ask for its registration. This is what was done in 1947, and the occasion was the death of Uma Charan in that year. It must not be forgotten that Uma Charan was the eldest and must have been the senior partner. With his death the need for further adjustments arose, and a fresh document was executed10. The Department contends that one of the unusual features was that though the balances of the partners were fluctuating as their drawings were made, the profits continued to be divided equally. This is no doubt an unusual feature, but it depends upon how the drawings were considered by others. There was an arrangement in the deed itself for such drawings, and looking at the circumstances of the family the drawings during a year could not be said to be too extensive as others had withdrawn large sums also in their turn11. Taking into consideration the entire circumstances of the case, we are satisfied that there was no material on which the Income-tax Officer could come to the conclusion that the firm was not genuine. There are many surmises and conjectures, and the conclusion is the result of suspicion which cannot take the place of proof in these matters12. It was contended that there were three orders, viz., the order of assessment, the order under section 25A and the one under section 26A, and merely reversing the order under section 26A cannot be of any consequence particularly as the order under section 25A stands. We are not concerned in these appeals in deciding what advantage will accrue to the appellant firm. That is its look-out, and we do not, therefore, accept the argumentThe result is that the order of the Appellate Tribunal is reversed. The firm shall be registered under section 26A of the Act for the assessment year 1948-49. The appeal against the order of the High Court need not be considered, since it is not necessary to pass any orders thereon. There will be no order in that appeal
### Response:
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9. There was no evidence that the excise licences were transferred orThe three shops, it appears, were managed separately and their accounts were kept distinct. There was thus nothing which militated against the partnership and it cannot be said that this affected the genuineness of the agreement. Extracts from the Bali Khata have been exhibited in this case. They show the capital account of the partners, their drawings from time to time and their profits separately. There is nothing to show that the entries in the Bali Khata were different from the other account books and the Bali Khata served as an abstract of all the business of the partnership. That it was not shown to the excise authorities does not prove that the book was not genuine. This account has been in existence ever since the first partnership agreement, and nothing has been said to establish that it was not regularly maintained in the ordinary course of business. Similarly, the bank accounts were left in the names of the licensees in order to keep the various businesses separate and distinct. The partnership deed provided for this, and there was nothing which made the partnership doubtful. The maintenance of these bank accounts cannot be said to furnish a veneer of partnership while underneath the family continued undisturbedNo doubt, the family continued as Hindu undivided family for nearly three decades, but there was nothing to prevent a family from disrupting and forming a partnership. The earlier decision was not res judicata, and the family could on a subsequent date enter into a fresh agreement with new partners and ask for its registration. This is what was done in 1947, and the occasion was the death of Uma Charan in that year. It must not be forgotten that Uma Charan was the eldest and must have been the senior partner. With his death the need for further adjustments arose, and a fresh document wasis no doubt an unusual feature, but it depends upon how the drawings were considered by others. There was an arrangement in the deed itself for such drawings, and looking at the circumstances of the family the drawings during a year could not be said to be too extensive as others had withdrawn large sums also in their turn11. Taking into consideration the entire circumstances of the case, we are satisfied that there was no material on which theOfficer could come to the conclusion that the firm was not genuine. There are many surmises and conjectures, and the conclusion is the result of suspicion which cannot take the place of proof in theseare not concerned in these appeals in deciding what advantage will accrue to the appellant firm. That is itsand we do not, therefore, accept the argumentThe result is that the order of the Appellate Tribunal is reversed. The firm shall be registered under section 26A of the Act for the assessment yearThe appeal against the order of the High Court need not be considered, since it is not necessary to pass any orders thereon. There will be no order in that appeal
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Perumon Bhagvathy Devaswom Perinadu Vill Vs. Bhargavi Amma (D) Thr. Lrs | seeking an interim direction is filed. It is common for appeals pending in High Courts not to be listed at all for several years. (In some courts where there is a huge pendency, the non-hearing period may be as much as 10 years or even more). When the appeal is admitted by the High Court, the counsel inform the parties that they will get in touch as and when the case is listed for hearing. There is nothing the appellant is required to do during the period between admission of the appeal and listing of the appeal for arguments (except filing paper books or depositing the charges for preparation of paper books wherever necessary). The High Courts are overloaded with appeals and the litigant is in no way responsible for non-listing for several years. There is no need for the appellant to keep track whether the respondent is dead or alive by periodical enquiries during the long period between admission and listing for hearing. When an appeal is so kept pending in suspended animation for a large number of years in the High Court without any date being fixed for hearing, there is no likelihood of the appellant becoming aware of the death of the respondent, unless both lived in the immediate vicinity or were related or the court issues a notice to him informing the death of the respondent. 11. The second circumstance is whether the counsel for the deceased respondent or the legal representative of the deceased respondent notified the court about the death and whether the court gave notice of such death to the appellant. Rule 10A of Order 22 casts a duty on the counsel for the respondent to inform the court about the death of such respondent whenever he comes to know about it. When the death is reported and recorded in the ordersheet/proceedings and the appellant is notified, the appellant has knowledge of the death and there is a duty on the part of the appellant to take steps to bring the legal representative of the deceased on record, in place of the deceased. The need for diligence commences from the date of such knowledge. If the appellant pleads ignorance even after the court notifies him about the death of the respondent that may be indication of negligence or want of diligence. 12. The third circumstance is whether there is any material to contradict the claim of the appellant, if he categorically states that he was unaware of he death of the respondent. In the absence of any material, the court would accept his claim that he was not aware of the death. 13. Thus it can safely be concluded that if the following three conditions exist, the courts will usually condone the delay, and set aside the abatement (even though the period of delay is considerable and a valuable right might have accrued to the opposite party - LRs of the deceased - on account of the abatement) : (i) The respondent had died during the period when the appeal had been pending without any hearing dates being fixed; (ii) Neither the counsel for the deceased respondent nor the Legal Representatives of the deceased respondent had reported the death of the respondent to the court and the court has not given notice of such death to the appellant. (iii) The appellant avers that he was unaware of the death of the respondent and there is no material to doubt or contradict his claim. 14. If, as in this case, the appeal was admitted in 1993 and did not come up for hearing till 2005, and the respondent died in-between, the court should not punish the appellant for his ignorance of the death of respondent, by refusing to set aside the abatement. Lack of diligence or negligence can be attributed to an appellant only when he is aware of the death and fails to take steps to bring the legal representatives on record. Where the appellant being unaware of the death of respondent, does not take steps to bring the legal representatives on record, there can be no question of any want of diligence or negligence. 15. In this case, the appeal was not being listed periodically by the High Court. Neither the counsel for the deceased second respondent in the High Court, nor the legal representatives of the deceased respondent reported her death to the High Court. There was no notice of death to the appellant. The appellant is an institution which acts through its Managing Committee. During the relevant period, there was transition of management from a Court Receiver to an elected managing committee. An affidavit was filed on behalf of the appellant that its new Committee was unaware of the pendency of the appeal. Being unaware of the pendency of appeal is equivalent to being unaware of the death of a respondent. This may happen in two circumstances. First is where the appellant himself is dead and his LRs have newly come on record. Second is where the appellant is an institution or company and a new Committee or Board of Management takes over its management. In such an event, even if they knew about the death of a person, they may not know the significance or relevance of death of such a person with reference to a pending appeal if they do not know about the appeal. As the appeal had already been admitted in 1993, and as hearing dates were not fixed periodically, the new Committee had no way of knowing that the appeal was pending, that Bhargavi Amma was a party to the appeal and that the Legal Representatives of the deceased Bhargavi Amma (second respondent before the High Court) had not been brought on record. In the circumstances, we are of the view that the delay was satisfactorily explained. The High Court ought to have condoned the delay, set aside the abatement and permitted the appellant to bring the legal representatives of the deceased respondent on record. | 1[ds]6. What should be the approach of courts while considering applications under section 5 of Limitation Act, 1963, has been indicated in several decisions. It may be sufficient to refer to two of them7. This Court has also considered the scope of Rules 4 and 9 of Order 22 in several decisions. We will refer to them. In Union of India vs. Ram Charan (Deceased) by LRs. [AIR 1964 SC 215 ],9. Let us next also refer to some of the special factors which have a bearing on what constitutes sufficient cause, with reference to delay in applications for setting aside the abatement and bringing the legal representatives on record10. The first is whether the appeal is pending in a court where regular and periodical dates of hearing are fixed. There is a significant difference between an appeal pending in a sub-ordinate court and an appeal pending in a High Court. In lower courts, dates of hearing are periodically fixed and a party or his counsel is expected to appear on those dates and keep track of the case. The process is known as `adjournment of hearing. In fact, this Court in Ram Charan (supra) inferred that the limitation period for bringing the legal representative might have been fixed as 90 days keeping in mind the adjournment procedure :"The legislature might have expected that ordinarily the interval between two successive hearings of a suit will be much within three months and the absence of any defendant within that period at a certain hearing may be accounted by his counsel or some relation to be due to his death or may make the plaintiff inquisitive about the reasons for the other partys absence."In contrast, when an appeal is pending in a High Court, dates of hearing are not fixed periodically. Once the appeal is admitted, it virtually goes into storage and is listed before the court only when it is ripe for hearing or when some application seeking an interim direction is filed. It is common for appeals pending in High Courts not to be listed at all for several years. (In some courts where there is a huge pendency, the non-hearing period may be as much as 10 years or even more). When the appeal is admitted by the High Court, the counsel inform the parties that they will get in touch as and when the case is listed for hearing. There is nothing the appellant is required to do during the period between admission of the appeal and listing of the appeal for arguments (except filing paper books or depositing the charges for preparation of paper books wherever necessary). The High Courts are overloaded with appeals and the litigant is in no way responsible for non-listing for several years. There is no need for the appellant to keep track whether the respondent is dead or alive by periodical enquiries during the long period between admission and listing for hearing. When an appeal is so kept pending in suspended animation for a large number of years in the High Court without any date being fixed for hearing, there is no likelihood of the appellant becoming aware of the death of the respondent, unless both lived in the immediate vicinity or were related or the court issues a notice to him informing the death of the respondent11. The second circumstance is whether the counsel for the deceased respondent or the legal representative of the deceased respondent notified the court about the death and whether the court gave notice of such death to the appellant. Rule 10A of Order 22 casts a duty on the counsel for the respondent to inform the court about the death of such respondent whenever he comes to know about it. When the death is reported and recorded in the ordersheet/proceedings and the appellant is notified, the appellant has knowledge of the death and there is a duty on the part of the appellant to take steps to bring the legal representative of the deceased on record, in place of the deceased. The need for diligence commences from the date of such knowledge. If the appellant pleads ignorance even after the court notifies him about the death of the respondent that may be indication of negligence or want of diligence12. The third circumstance is whether there is any material to contradict the claim of the appellant, if he categorically states that he was unaware of he death of the respondent. In the absence of any material, the court would accept his claim that he was not aware of the death13. Thus it can safely be concluded that if the following three conditions exist, the courts will usually condone the delay, and set aside the abatement (even though the period of delay is considerable and a valuable right might have accrued to the opposite party - LRs of the deceased - on account of the abatement) :(i) The respondent had died during the period when the appeal had been pending without any hearing dates being fixed;(ii) Neither the counsel for the deceased respondent nor the Legal Representatives of the deceased respondent had reported the death of the respondent to the court and the court has not given notice of such death to the appellant(iii) The appellant avers that he was unaware of the death of the respondent and there is no material to doubt or contradict his claim14. If, as in this case, the appeal was admitted in 1993 and did not come up for hearing till 2005, and the respondent died in-between, the court should not punish the appellant for his ignorance of the death of respondent, by refusing to set aside the abatement. Lack of diligence or negligence can be attributed to an appellant only when he is aware of the death and fails to take steps to bring the legal representatives on record. Where the appellant being unaware of the death of respondent, does not take steps to bring the legal representatives on record, there can be no question of any want of diligence or negligence15. In this case, the appeal was not being listed periodically by the High Court. Neither the counsel for the deceased second respondent in the High Court, nor the legal representatives of the deceased respondent reported her death to the High Court. There was no notice of death to the appellant. The appellant is an institution which acts through its Managing Committee. During the relevant period, there was transition of management from a Court Receiver to an elected managing committee. An affidavit was filed on behalf of the appellant that its new Committee was unaware of the pendency of the appeal. Being unaware of the pendency of appeal is equivalent to being unaware of the death of a respondent. This may happen in two circumstances. First is where the appellant himself is dead and his LRs have newly come on record. Second is where the appellant is an institution or company and a new Committee or Board of Management takes over its management. In such an event, even if they knew about the death of a person, they may not know the significance or relevance of death of such a person with reference to a pending appeal if they do not know about the appeal. As the appeal had already been admitted in 1993, and as hearing dates were not fixed periodically, the new Committee had no way of knowing that the appeal was pending, that Bhargavi Amma was a party to the appeal and that the Legal Representatives of the deceased Bhargavi Amma (second respondent before the High Court) had not been brought on record. In the circumstances, we are of the view that the delay was satisfactorily explained. The High Court ought to have condoned the delay, set aside the abatement and permitted the appellant to bring the legal representatives of the deceased respondent on record | 1 | 4,738 | 1,432 | ### Instruction:
Assess the case to predict the court's ruling (favorably (1) or unfavorably (0)), and then expound on this prediction by highlighting and analyzing key textual elements from the proceeding.
### Input:
seeking an interim direction is filed. It is common for appeals pending in High Courts not to be listed at all for several years. (In some courts where there is a huge pendency, the non-hearing period may be as much as 10 years or even more). When the appeal is admitted by the High Court, the counsel inform the parties that they will get in touch as and when the case is listed for hearing. There is nothing the appellant is required to do during the period between admission of the appeal and listing of the appeal for arguments (except filing paper books or depositing the charges for preparation of paper books wherever necessary). The High Courts are overloaded with appeals and the litigant is in no way responsible for non-listing for several years. There is no need for the appellant to keep track whether the respondent is dead or alive by periodical enquiries during the long period between admission and listing for hearing. When an appeal is so kept pending in suspended animation for a large number of years in the High Court without any date being fixed for hearing, there is no likelihood of the appellant becoming aware of the death of the respondent, unless both lived in the immediate vicinity or were related or the court issues a notice to him informing the death of the respondent. 11. The second circumstance is whether the counsel for the deceased respondent or the legal representative of the deceased respondent notified the court about the death and whether the court gave notice of such death to the appellant. Rule 10A of Order 22 casts a duty on the counsel for the respondent to inform the court about the death of such respondent whenever he comes to know about it. When the death is reported and recorded in the ordersheet/proceedings and the appellant is notified, the appellant has knowledge of the death and there is a duty on the part of the appellant to take steps to bring the legal representative of the deceased on record, in place of the deceased. The need for diligence commences from the date of such knowledge. If the appellant pleads ignorance even after the court notifies him about the death of the respondent that may be indication of negligence or want of diligence. 12. The third circumstance is whether there is any material to contradict the claim of the appellant, if he categorically states that he was unaware of he death of the respondent. In the absence of any material, the court would accept his claim that he was not aware of the death. 13. Thus it can safely be concluded that if the following three conditions exist, the courts will usually condone the delay, and set aside the abatement (even though the period of delay is considerable and a valuable right might have accrued to the opposite party - LRs of the deceased - on account of the abatement) : (i) The respondent had died during the period when the appeal had been pending without any hearing dates being fixed; (ii) Neither the counsel for the deceased respondent nor the Legal Representatives of the deceased respondent had reported the death of the respondent to the court and the court has not given notice of such death to the appellant. (iii) The appellant avers that he was unaware of the death of the respondent and there is no material to doubt or contradict his claim. 14. If, as in this case, the appeal was admitted in 1993 and did not come up for hearing till 2005, and the respondent died in-between, the court should not punish the appellant for his ignorance of the death of respondent, by refusing to set aside the abatement. Lack of diligence or negligence can be attributed to an appellant only when he is aware of the death and fails to take steps to bring the legal representatives on record. Where the appellant being unaware of the death of respondent, does not take steps to bring the legal representatives on record, there can be no question of any want of diligence or negligence. 15. In this case, the appeal was not being listed periodically by the High Court. Neither the counsel for the deceased second respondent in the High Court, nor the legal representatives of the deceased respondent reported her death to the High Court. There was no notice of death to the appellant. The appellant is an institution which acts through its Managing Committee. During the relevant period, there was transition of management from a Court Receiver to an elected managing committee. An affidavit was filed on behalf of the appellant that its new Committee was unaware of the pendency of the appeal. Being unaware of the pendency of appeal is equivalent to being unaware of the death of a respondent. This may happen in two circumstances. First is where the appellant himself is dead and his LRs have newly come on record. Second is where the appellant is an institution or company and a new Committee or Board of Management takes over its management. In such an event, even if they knew about the death of a person, they may not know the significance or relevance of death of such a person with reference to a pending appeal if they do not know about the appeal. As the appeal had already been admitted in 1993, and as hearing dates were not fixed periodically, the new Committee had no way of knowing that the appeal was pending, that Bhargavi Amma was a party to the appeal and that the Legal Representatives of the deceased Bhargavi Amma (second respondent before the High Court) had not been brought on record. In the circumstances, we are of the view that the delay was satisfactorily explained. The High Court ought to have condoned the delay, set aside the abatement and permitted the appellant to bring the legal representatives of the deceased respondent on record.
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is ripe for hearing or when some application seeking an interim direction is filed. It is common for appeals pending in High Courts not to be listed at all for several years. (In some courts where there is a huge pendency, the non-hearing period may be as much as 10 years or even more). When the appeal is admitted by the High Court, the counsel inform the parties that they will get in touch as and when the case is listed for hearing. There is nothing the appellant is required to do during the period between admission of the appeal and listing of the appeal for arguments (except filing paper books or depositing the charges for preparation of paper books wherever necessary). The High Courts are overloaded with appeals and the litigant is in no way responsible for non-listing for several years. There is no need for the appellant to keep track whether the respondent is dead or alive by periodical enquiries during the long period between admission and listing for hearing. When an appeal is so kept pending in suspended animation for a large number of years in the High Court without any date being fixed for hearing, there is no likelihood of the appellant becoming aware of the death of the respondent, unless both lived in the immediate vicinity or were related or the court issues a notice to him informing the death of the respondent11. The second circumstance is whether the counsel for the deceased respondent or the legal representative of the deceased respondent notified the court about the death and whether the court gave notice of such death to the appellant. Rule 10A of Order 22 casts a duty on the counsel for the respondent to inform the court about the death of such respondent whenever he comes to know about it. When the death is reported and recorded in the ordersheet/proceedings and the appellant is notified, the appellant has knowledge of the death and there is a duty on the part of the appellant to take steps to bring the legal representative of the deceased on record, in place of the deceased. The need for diligence commences from the date of such knowledge. If the appellant pleads ignorance even after the court notifies him about the death of the respondent that may be indication of negligence or want of diligence12. The third circumstance is whether there is any material to contradict the claim of the appellant, if he categorically states that he was unaware of he death of the respondent. In the absence of any material, the court would accept his claim that he was not aware of the death13. Thus it can safely be concluded that if the following three conditions exist, the courts will usually condone the delay, and set aside the abatement (even though the period of delay is considerable and a valuable right might have accrued to the opposite party - LRs of the deceased - on account of the abatement) :(i) The respondent had died during the period when the appeal had been pending without any hearing dates being fixed;(ii) Neither the counsel for the deceased respondent nor the Legal Representatives of the deceased respondent had reported the death of the respondent to the court and the court has not given notice of such death to the appellant(iii) The appellant avers that he was unaware of the death of the respondent and there is no material to doubt or contradict his claim14. If, as in this case, the appeal was admitted in 1993 and did not come up for hearing till 2005, and the respondent died in-between, the court should not punish the appellant for his ignorance of the death of respondent, by refusing to set aside the abatement. Lack of diligence or negligence can be attributed to an appellant only when he is aware of the death and fails to take steps to bring the legal representatives on record. Where the appellant being unaware of the death of respondent, does not take steps to bring the legal representatives on record, there can be no question of any want of diligence or negligence15. In this case, the appeal was not being listed periodically by the High Court. Neither the counsel for the deceased second respondent in the High Court, nor the legal representatives of the deceased respondent reported her death to the High Court. There was no notice of death to the appellant. The appellant is an institution which acts through its Managing Committee. During the relevant period, there was transition of management from a Court Receiver to an elected managing committee. An affidavit was filed on behalf of the appellant that its new Committee was unaware of the pendency of the appeal. Being unaware of the pendency of appeal is equivalent to being unaware of the death of a respondent. This may happen in two circumstances. First is where the appellant himself is dead and his LRs have newly come on record. Second is where the appellant is an institution or company and a new Committee or Board of Management takes over its management. In such an event, even if they knew about the death of a person, they may not know the significance or relevance of death of such a person with reference to a pending appeal if they do not know about the appeal. As the appeal had already been admitted in 1993, and as hearing dates were not fixed periodically, the new Committee had no way of knowing that the appeal was pending, that Bhargavi Amma was a party to the appeal and that the Legal Representatives of the deceased Bhargavi Amma (second respondent before the High Court) had not been brought on record. In the circumstances, we are of the view that the delay was satisfactorily explained. The High Court ought to have condoned the delay, set aside the abatement and permitted the appellant to bring the legal representatives of the deceased respondent on record
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Union of India and Others Vs. Messrs Allied Construction Company | Pathak, J. 1. These appeals by special leave are directed against an order dated July 6, 1977 of the Orissa High Court and arise out of the proceedings under the Indian Arbitration Act 2. The respondent M/s. Allied Construction Company, entered into contracts with the Union of India in the Defence Department undertaking the construction of residential quarters at Chandipur in the district of Balasore. Both contracts contained an arbitration clause, Clause 70, which provided for arbitration in the event of disputes between the parties 3. It appears that after the work had progressed to a certain stage the contracts were terminated at the instance of the respondent. The respondent invoked Clause 70 of the contract, and requested that the disputes, which arose out of the termination of the contracts, should be referred for arbitration. It seems that when no action was taken by the appellants the respondent made an application under Sections 8 and 20 of the Arbitration Act in relation to each contract before the learned Subordinate Judge at Balasore. By his order of December 2, 1976, the learned Subordinate Judge granted each application, directed the arbitration agreements be filed in court, and appointed a highly qualified Engineer, Shri Banabasi Patnaik, as arbitrator. Against the two orders the respondent filed two respective appeals before the Orissa High Court. Corresponding revision petitions were also filed in the fear that the appeals may not be maintainable. Meanwhile, the appellant agreed to refer the two disputes to arbitration. The High Court dismissed the appeals and revision petitions by its order of July 6, 1977 4. In these appeals the principal contention of the appellants is that on the facts of the case, the proviso to Clause 70 of the contracts was attracted inasmuch as there was an abandonment of the works by the respondent and therefore no reference to arbitration was permissible before alternative arrangements were finalised by the government to get the work completed by or through any other contractor. The point was raised before the High Court and was repelled. The learned Attorney-General of India, appearing for the appellants, contends that the High Court has erred in the construction of the arbitration clause and urges that the reference to arbitration in each case must be considered to be premature. On the particular facts before us we consider it unnecessary to enter into the controversy. It appears from the order dated December 2, 1976 of the learned Subordinate Judge, Balasore, which has been affirmed by the High Court, that Shri Banabasi Patnaik is the Superintending Engineer of the National Highway Circle, Sambalpur in Orissa and is a person whose ability and integrity are not doubted. The name was selected by the learned subordinate Judge from a panel of names prepared by the respondent, and no objection was entered by the appellants to it. In the circumstances, we see no reason why Shri Banabasi Patnaik should not be allowed to enter upon the arbitration and make his award in each of the two cases | 0[ds]On the particular facts before us we consider it unnecessary to enter into the controversy. It appears from the order dated December 2, 1976 of the learned Subordinate Judge, Balasore, which has been affirmed by the High Court, that Shri Banabasi Patnaik is the Superintending Engineer of the National Highway Circle, Sambalpur in Orissa and is a person whose ability and integrity are not doubted. The name was selected by the learned subordinate Judge from a panel of names prepared by the respondent, and no objection was entered by the appellants to it. In the circumstances, we see no reason why Shri Banabasi Patnaik should not be allowed to enter upon the arbitration and make his award in each of the two cases | 0 | 549 | 137 | ### 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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Pathak, J. 1. These appeals by special leave are directed against an order dated July 6, 1977 of the Orissa High Court and arise out of the proceedings under the Indian Arbitration Act 2. The respondent M/s. Allied Construction Company, entered into contracts with the Union of India in the Defence Department undertaking the construction of residential quarters at Chandipur in the district of Balasore. Both contracts contained an arbitration clause, Clause 70, which provided for arbitration in the event of disputes between the parties 3. It appears that after the work had progressed to a certain stage the contracts were terminated at the instance of the respondent. The respondent invoked Clause 70 of the contract, and requested that the disputes, which arose out of the termination of the contracts, should be referred for arbitration. It seems that when no action was taken by the appellants the respondent made an application under Sections 8 and 20 of the Arbitration Act in relation to each contract before the learned Subordinate Judge at Balasore. By his order of December 2, 1976, the learned Subordinate Judge granted each application, directed the arbitration agreements be filed in court, and appointed a highly qualified Engineer, Shri Banabasi Patnaik, as arbitrator. Against the two orders the respondent filed two respective appeals before the Orissa High Court. Corresponding revision petitions were also filed in the fear that the appeals may not be maintainable. Meanwhile, the appellant agreed to refer the two disputes to arbitration. The High Court dismissed the appeals and revision petitions by its order of July 6, 1977 4. In these appeals the principal contention of the appellants is that on the facts of the case, the proviso to Clause 70 of the contracts was attracted inasmuch as there was an abandonment of the works by the respondent and therefore no reference to arbitration was permissible before alternative arrangements were finalised by the government to get the work completed by or through any other contractor. The point was raised before the High Court and was repelled. The learned Attorney-General of India, appearing for the appellants, contends that the High Court has erred in the construction of the arbitration clause and urges that the reference to arbitration in each case must be considered to be premature. On the particular facts before us we consider it unnecessary to enter into the controversy. It appears from the order dated December 2, 1976 of the learned Subordinate Judge, Balasore, which has been affirmed by the High Court, that Shri Banabasi Patnaik is the Superintending Engineer of the National Highway Circle, Sambalpur in Orissa and is a person whose ability and integrity are not doubted. The name was selected by the learned subordinate Judge from a panel of names prepared by the respondent, and no objection was entered by the appellants to it. In the circumstances, we see no reason why Shri Banabasi Patnaik should not be allowed to enter upon the arbitration and make his award in each of the two cases
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On the particular facts before us we consider it unnecessary to enter into the controversy. It appears from the order dated December 2, 1976 of the learned Subordinate Judge, Balasore, which has been affirmed by the High Court, that Shri Banabasi Patnaik is the Superintending Engineer of the National Highway Circle, Sambalpur in Orissa and is a person whose ability and integrity are not doubted. The name was selected by the learned subordinate Judge from a panel of names prepared by the respondent, and no objection was entered by the appellants to it. In the circumstances, we see no reason why Shri Banabasi Patnaik should not be allowed to enter upon the arbitration and make his award in each of the two cases
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M/s Magadh Sugar & Energy Ltd Vs. The State of Bihar & Ors | charged for supply of telephones. Writ petitions were filed in the High Court challenging the levy. The writ petitions were dismissed on the ground that an alternative remedy of a statutory appeal was available. An appeal against these orders was filed before this Court. The appeal was allowed and the matter was remanded back to the High Court for determination since it involved a question of law on whether the supply of telephones amounted to sale. 22. It is not the case of the appellant that the respondents have miscalculated the duty and penalty imposed on it. The appellant contends that the State Government does not have the power to levy tax on its sale of electricity to BSEB. Thus, the plea strikes at the exercise of jurisdiction by the Government. In view of the law discussed above on the rule of alternate remedy, the High Court can exercise its writ jurisdiction if the order of the authority is challenged for want of authority and jurisdiction, which is a pure question of law. 23. The appellant is admittedly a sugar mill producing electricity from bagasse (a by-product of sugar production). The electricity that is produced is used for running the mill and the excess is sold to BSEB. There is no dispute about the nature of the transaction between the appellant and BSEB. The petition before the High Court was initially tagged with the petition filed by NTPC since it involved similar issues. However, it was subsequently de-tagged and heard separately on the ground that the appellant in this case is a sugar mill that also produces electricity, while NTPC is a power generation company. The writ petition filed by the appellant was dismissed by the impugned judgment. Both the petitions - filed by the appellant and NTPC before the High Court challenged the power of the State Government to levy tax on sale of electricity to Electricity Boards. A three judge Bench of this court in Sree Meenakshi Mills Ltd. v Commissioner of Income Tax AIR 1957 SC 49 succinctly explained the tests for the identification of questions of fact, questions of law and mixed questions of law and facts. Justice T. L. Venkatarama Aiyar writing for the Bench observed that: 9. [..] To take an illustration, let us suppose that in a suit on a promissory note the defence taken is one of denial of execution. The court finds that the disputed signature is unlike the admitted signatures of the defendant. It also finds that the attesting witnesses who speak to execution were not, in fact, present at the time of the alleged execution. On a consideration of these facts, the court comes to the conclusion that the promissory note is not genuine, Here, there are certain facts which are ascertained, and on these facts, a certain conclusion is reached which is also one of fact. 10. In between the domains occupied respectively by questions of fact and of law, there is a large area in which both these questions run into each other, forming so to say, enclaves within each other. The questions that arise for determination in that area are known as mixed questions of law and fact. These questions involve first the ascertainment of facts on the evidence adduced and then a determination of the rights of the parties on an application of the appropriate principles of law to the facts ascertained. To take an example, the question is whether the defendant has acquired title to the suit property by adverse possession. It is found on the facts that the land is a vacant site that the defendant is the owner of the adjacent. residential house and that he has been drying grains and cloth and throwing rubbish on the plot. The further question that has to be determined is whether the above facts are sufficient to constitute adverse possession in law. Is the user continuous or fugitive? Is it as of right or permissive in character? Thus, for deciding whether the defendant has acquired title by adverse possession the court has firstly to find on an appreciation of the evidence what the facts are. So far, it is a question of fact. It has then to apply the principles of law regarding acquisition of title by adverse possession, and decide whether on the facts established by the evidence, the requirements of law are satisfied. That is a question of law. The test that is to be applied for the determination of a question of law is whether the rights of the parties before the court can be determined without reference to the factual scenario. In this case, the High Court was entrusted with the determination of the meaning of the phrases used in Section 3 of the Act to determine if the supply of electricity by the appellant would fall within its ambit. Unlike a dispute on the execution of a promissory note or a plea of adverse possession, there is no adjudication on facts required here. There is also no dispute on the nature of the transaction involved. 24. The issues raised by the appellant are questions of law which require, upon a comprehensive reading of the Bihar Electricity Act, a determination of whether tax can be levied on the supply of electricity by a power generator (which also manufactures sugar) supplying electricity to a distributor; and whether the first respondent has the legislative competence to levy duty on the sale of electricity to an intermediary distributor in view of the decision of this Court in State of AP (supra). The question of whether the appellant is liable to file returns under Sections 6B(1) and 5A of the Act is directly related to the issue of whether the sale of electricity by the appellant to BSEB falls under the charging provisions of Section 3(1). The questions raised by the appellant can be adjudicated without delving into any factual dispute. Thus, the present matter is amenable to the writ jurisdiction of the High Court. | 1[ds]17. The rival submissions fall for our consideration. The High Court in the judgement impugned in the appeal declined to entertain the writ petition on two counts: (i) the appellant has an alternate statutory remedy under Section 9A of the Act; and (ii) the dispute involves questions of fact which are not amenable to the writ jurisdiction of the High Court.19. While a High Court would normally not exercise its writ jurisdiction under Article 226 of the Constitution if an effective and efficacious alternate remedy is available, the existence of an alternate remedy does not by itself bar the High Court from exercising its jurisdiction in certain contingencies. This principle has been crystallized by this Court in Whirpool Corporation v. Registrar of Trademarks, Mumbai (1998) 8 SCC 1 and Harbanslal Sahni v. Indian Oil Corporation Ltd (2003) 2 SCC 107 . Recently, in Radha Krishan Industries v. State of Himachal Pradesh & Ors 2021 SCC OnLine SC 334 a two judge Bench of this Court of which one of us was a part of (Justice DY Chandrachud) has summarized the principles governing the exercise of writ jurisdiction by the High Court in the presence of an alternate remedy. This Court has observed:28. The principles of law which emerge are that:(i) The power under Article 226 of the Constitution to issue writs can be exercised not only for the enforcement of fundamental rights, but for any other purpose as well;(ii) The High Court has the discretion not to entertain a writ petition. One of the restrictions placed on the power of the High Court is where an effective alternate remedy is available to the aggrieved person;(iii) Exceptions to the rule of alternate remedy arise where (a) the writ petition has been filed for the enforcement of a fundamental right protected by Part III of the Constitution; (b) there has been a violation of the principles of natural justice; (c) the order or proceedings are wholly without jurisdiction; or (d) the vires of a legislation is challenged;(iv) An alternate remedy by itself does not divest the High Court of its powers under Article 226 of the Constitution in an appropriate case though ordinarily, a writ petition should not be entertained when an efficacious alternate remedy is provided by law;(v) When a right is created by a statute, which itself prescribes the remedy or procedure for enforcing the right or liability, resort must be had to that particular statutory remedy before invoking the discretionary remedy under Article 226 of the Constitution. This rule of exhaustion of statutory remedies is a rule of policy, convenience and discretion; and(vi) In cases where there are disputed questions of fact, the High Court may decide to decline jurisdiction in a writ petition. However, if the High Court is objectively of the view that the nature of the controversy requires the exercise of its writ jurisdiction, such a view would not readily be interfered with.20. The above principle was reiterated by a three-judge Bench of this Court in Executive Engineer v. Seetaram Rice Mill (2012) 2 SCC 108 . In that case, a show cause notice/provisional assessment order was issued to the assessee on the ground of an unauthorized use of electricity under Section 126 (1) of the Electricity Act 2003 and a demand for payment of electricity charges was raised. The assessee contended that Section 126 was not applicable to it and challenged the jurisdiction of the taxing authorities to issue such a notice, before the High Court in its writ jurisdiction. The High Court entertained the writ petition. When the judgement of the High Court was appealed before this Court, it held that the High Court did not commit any error in exercising its jurisdiction in respect of the challenge raised on the jurisdiction of the revenue authorities. This Court made the following observations:81. Should the courts determine on merits of the case or should they preferably answer the preliminary issue or jurisdictional issue arising in the facts of the case and remit the matter for consideration on merits by the competent authority? Again, it is somewhat difficult to state with absolute clarity any principle governing such exercise of jurisdiction. It always will depend upon the facts of a given case. We are of the considered view that interest of administration of justice shall be better subserved if the cases of the present kind are heard by the courts only where they involve primary questions of jurisdiction or the matters which go to the very root of jurisdiction and where the authorities have acted beyond the provisions of the Act.82. It is argued and to some extent correctly that the High Court should not decline to exercise its jurisdiction merely for the reason that there is a statutory alternative remedy available even when the case falls in the above stated class of cases. It is a settled principle that the courts/tribunal will not exercise jurisdiction in futility. The law will not itself attempt to do an act which would be vain, lex nil frustra facit, nor to enforce one which would be frivolous—lex neminem cogit ad vana seu inutilia—the law will not force anyone to do a thing vain and fruitless. In other words, if exercise of jurisdiction by the tribunal ex facie appears to be an exercise of jurisdiction in futility for any of the stated reasons, then it will be permissible for the High Court to interfere in exercise of its jurisdiction. This issue is no longer res integra and has been settled by a catena of judgments of this Court, which we find entirely unnecessary to refer to in detail...22. It is not the case of the appellant that the respondents have miscalculated the duty and penalty imposed on it. The appellant contends that the State Government does not have the power to levy tax on its sale of electricity to BSEB. Thus, the plea strikes at the exercise of jurisdiction by the Government. In view of the law discussed above on the rule of alternate remedy, the High Court can exercise its writ jurisdiction if the order of the authority is challenged for want of authority and jurisdiction, which is a pure question of law.23. The appellant is admittedly a sugar mill producing electricity from bagasse (a by-product of sugar production). The electricity that is produced is used for running the mill and the excess is sold to BSEB. There is no dispute about the nature of the transaction between the appellant and BSEB. The petition before the High Court was initially tagged with the petition filed by NTPC since it involved similar issues. However, it was subsequently de-tagged and heard separately on the ground that the appellant in this case is a sugar mill that also produces electricity, while NTPC is a power generation company. The writ petition filed by the appellant was dismissed by the impugned judgment. Both the petitions - filed by the appellant and NTPC before the High Court challenged the power of the State Government to levy tax on sale of electricity to Electricity Boards. A three judge Bench of this court in Sree Meenakshi Mills Ltd. v Commissioner of Income Tax AIR 1957 SC 49 succinctly explained the tests for the identification of questions of fact, questions of law and mixed questions of law and facts. Justice T. L. Venkatarama Aiyar writing for the Bench observed that:9. [..] To take an illustration, let us suppose that in a suit on a promissory note the defence taken is one of denial of execution. The court finds that the disputed signature is unlike the admitted signatures of the defendant. It also finds that the attesting witnesses who speak to execution were not, in fact, present at the time of the alleged execution. On a consideration of these facts, the court comes to the conclusion that the promissory note is not genuine, Here, there are certain facts which are ascertained, and on these facts, a certain conclusion is reached which is also one of fact.10. In between the domains occupied respectively by questions of fact and of law, there is a large area in which both these questions run into each other, forming so to say, enclaves within each other. The questions that arise for determination in that area are known as mixed questions of law and fact. These questions involve first the ascertainment of facts on the evidence adduced and then a determination of the rights of the parties on an application of the appropriate principles of law to the facts ascertained. To take an example, the question is whether the defendant has acquired title to the suit property by adverse possession. It is found on the facts that the land is a vacant site that the defendant is the owner of the adjacent. residential house and that he has been drying grains and cloth and throwing rubbish on the plot. The further question that has to be determined is whether the above facts are sufficient to constitute adverse possession in law. Is the user continuous or fugitive? Is it as of right or permissive in character? Thus, for deciding whether the defendant has acquired title by adverse possession the court has firstly to find on an appreciation of the evidence what the facts are. So far, it is a question of fact. It has then to apply the principles of law regarding acquisition of title by adverse possession, and decide whether on the facts established by the evidence, the requirements of law are satisfied. That is a question of law.The test that is to be applied for the determination of a question of law is whether the rights of the parties before the court can be determined without reference to the factual scenario. In this case, the High Court was entrusted with the determination of the meaning of the phrases used in Section 3 of the Act to determine if the supply of electricity by the appellant would fall within its ambit. Unlike a dispute on the execution of a promissory note or a plea of adverse possession, there is no adjudication on facts required here. There is also no dispute on the nature of the transaction involved.24. The issues raised by the appellant are questions of law which require, upon a comprehensive reading of the Bihar Electricity Act, a determination of whether tax can be levied on the supply of electricity by a power generator (which also manufactures sugar) supplying electricity to a distributor; and whether the first respondent has the legislative competence to levy duty on the sale of electricity to an intermediary distributor in view of the decision of this Court in State of AP (supra). The question of whether the appellant is liable to file returns under Sections 6B(1) and 5A of the Act is directly related to the issue of whether the sale of electricity by the appellant to BSEB falls under the charging provisions of Section 3(1). The questions raised by the appellant can be adjudicated without delving into any factual dispute. Thus, the present matter is amenable to the writ jurisdiction of the High Court. | 1 | 7,658 | 2,035 | ### Instruction:
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charged for supply of telephones. Writ petitions were filed in the High Court challenging the levy. The writ petitions were dismissed on the ground that an alternative remedy of a statutory appeal was available. An appeal against these orders was filed before this Court. The appeal was allowed and the matter was remanded back to the High Court for determination since it involved a question of law on whether the supply of telephones amounted to sale. 22. It is not the case of the appellant that the respondents have miscalculated the duty and penalty imposed on it. The appellant contends that the State Government does not have the power to levy tax on its sale of electricity to BSEB. Thus, the plea strikes at the exercise of jurisdiction by the Government. In view of the law discussed above on the rule of alternate remedy, the High Court can exercise its writ jurisdiction if the order of the authority is challenged for want of authority and jurisdiction, which is a pure question of law. 23. The appellant is admittedly a sugar mill producing electricity from bagasse (a by-product of sugar production). The electricity that is produced is used for running the mill and the excess is sold to BSEB. There is no dispute about the nature of the transaction between the appellant and BSEB. The petition before the High Court was initially tagged with the petition filed by NTPC since it involved similar issues. However, it was subsequently de-tagged and heard separately on the ground that the appellant in this case is a sugar mill that also produces electricity, while NTPC is a power generation company. The writ petition filed by the appellant was dismissed by the impugned judgment. Both the petitions - filed by the appellant and NTPC before the High Court challenged the power of the State Government to levy tax on sale of electricity to Electricity Boards. A three judge Bench of this court in Sree Meenakshi Mills Ltd. v Commissioner of Income Tax AIR 1957 SC 49 succinctly explained the tests for the identification of questions of fact, questions of law and mixed questions of law and facts. Justice T. L. Venkatarama Aiyar writing for the Bench observed that: 9. [..] To take an illustration, let us suppose that in a suit on a promissory note the defence taken is one of denial of execution. The court finds that the disputed signature is unlike the admitted signatures of the defendant. It also finds that the attesting witnesses who speak to execution were not, in fact, present at the time of the alleged execution. On a consideration of these facts, the court comes to the conclusion that the promissory note is not genuine, Here, there are certain facts which are ascertained, and on these facts, a certain conclusion is reached which is also one of fact. 10. In between the domains occupied respectively by questions of fact and of law, there is a large area in which both these questions run into each other, forming so to say, enclaves within each other. The questions that arise for determination in that area are known as mixed questions of law and fact. These questions involve first the ascertainment of facts on the evidence adduced and then a determination of the rights of the parties on an application of the appropriate principles of law to the facts ascertained. To take an example, the question is whether the defendant has acquired title to the suit property by adverse possession. It is found on the facts that the land is a vacant site that the defendant is the owner of the adjacent. residential house and that he has been drying grains and cloth and throwing rubbish on the plot. The further question that has to be determined is whether the above facts are sufficient to constitute adverse possession in law. Is the user continuous or fugitive? Is it as of right or permissive in character? Thus, for deciding whether the defendant has acquired title by adverse possession the court has firstly to find on an appreciation of the evidence what the facts are. So far, it is a question of fact. It has then to apply the principles of law regarding acquisition of title by adverse possession, and decide whether on the facts established by the evidence, the requirements of law are satisfied. That is a question of law. The test that is to be applied for the determination of a question of law is whether the rights of the parties before the court can be determined without reference to the factual scenario. In this case, the High Court was entrusted with the determination of the meaning of the phrases used in Section 3 of the Act to determine if the supply of electricity by the appellant would fall within its ambit. Unlike a dispute on the execution of a promissory note or a plea of adverse possession, there is no adjudication on facts required here. There is also no dispute on the nature of the transaction involved. 24. The issues raised by the appellant are questions of law which require, upon a comprehensive reading of the Bihar Electricity Act, a determination of whether tax can be levied on the supply of electricity by a power generator (which also manufactures sugar) supplying electricity to a distributor; and whether the first respondent has the legislative competence to levy duty on the sale of electricity to an intermediary distributor in view of the decision of this Court in State of AP (supra). The question of whether the appellant is liable to file returns under Sections 6B(1) and 5A of the Act is directly related to the issue of whether the sale of electricity by the appellant to BSEB falls under the charging provisions of Section 3(1). The questions raised by the appellant can be adjudicated without delving into any factual dispute. Thus, the present matter is amenable to the writ jurisdiction of the High Court.
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force anyone to do a thing vain and fruitless. In other words, if exercise of jurisdiction by the tribunal ex facie appears to be an exercise of jurisdiction in futility for any of the stated reasons, then it will be permissible for the High Court to interfere in exercise of its jurisdiction. This issue is no longer res integra and has been settled by a catena of judgments of this Court, which we find entirely unnecessary to refer to in detail...22. It is not the case of the appellant that the respondents have miscalculated the duty and penalty imposed on it. The appellant contends that the State Government does not have the power to levy tax on its sale of electricity to BSEB. Thus, the plea strikes at the exercise of jurisdiction by the Government. In view of the law discussed above on the rule of alternate remedy, the High Court can exercise its writ jurisdiction if the order of the authority is challenged for want of authority and jurisdiction, which is a pure question of law.23. The appellant is admittedly a sugar mill producing electricity from bagasse (a by-product of sugar production). The electricity that is produced is used for running the mill and the excess is sold to BSEB. There is no dispute about the nature of the transaction between the appellant and BSEB. The petition before the High Court was initially tagged with the petition filed by NTPC since it involved similar issues. However, it was subsequently de-tagged and heard separately on the ground that the appellant in this case is a sugar mill that also produces electricity, while NTPC is a power generation company. The writ petition filed by the appellant was dismissed by the impugned judgment. Both the petitions - filed by the appellant and NTPC before the High Court challenged the power of the State Government to levy tax on sale of electricity to Electricity Boards. A three judge Bench of this court in Sree Meenakshi Mills Ltd. v Commissioner of Income Tax AIR 1957 SC 49 succinctly explained the tests for the identification of questions of fact, questions of law and mixed questions of law and facts. Justice T. L. Venkatarama Aiyar writing for the Bench observed that:9. [..] To take an illustration, let us suppose that in a suit on a promissory note the defence taken is one of denial of execution. The court finds that the disputed signature is unlike the admitted signatures of the defendant. It also finds that the attesting witnesses who speak to execution were not, in fact, present at the time of the alleged execution. On a consideration of these facts, the court comes to the conclusion that the promissory note is not genuine, Here, there are certain facts which are ascertained, and on these facts, a certain conclusion is reached which is also one of fact.10. In between the domains occupied respectively by questions of fact and of law, there is a large area in which both these questions run into each other, forming so to say, enclaves within each other. The questions that arise for determination in that area are known as mixed questions of law and fact. These questions involve first the ascertainment of facts on the evidence adduced and then a determination of the rights of the parties on an application of the appropriate principles of law to the facts ascertained. To take an example, the question is whether the defendant has acquired title to the suit property by adverse possession. It is found on the facts that the land is a vacant site that the defendant is the owner of the adjacent. residential house and that he has been drying grains and cloth and throwing rubbish on the plot. The further question that has to be determined is whether the above facts are sufficient to constitute adverse possession in law. Is the user continuous or fugitive? Is it as of right or permissive in character? Thus, for deciding whether the defendant has acquired title by adverse possession the court has firstly to find on an appreciation of the evidence what the facts are. So far, it is a question of fact. It has then to apply the principles of law regarding acquisition of title by adverse possession, and decide whether on the facts established by the evidence, the requirements of law are satisfied. That is a question of law.The test that is to be applied for the determination of a question of law is whether the rights of the parties before the court can be determined without reference to the factual scenario. In this case, the High Court was entrusted with the determination of the meaning of the phrases used in Section 3 of the Act to determine if the supply of electricity by the appellant would fall within its ambit. Unlike a dispute on the execution of a promissory note or a plea of adverse possession, there is no adjudication on facts required here. There is also no dispute on the nature of the transaction involved.24. The issues raised by the appellant are questions of law which require, upon a comprehensive reading of the Bihar Electricity Act, a determination of whether tax can be levied on the supply of electricity by a power generator (which also manufactures sugar) supplying electricity to a distributor; and whether the first respondent has the legislative competence to levy duty on the sale of electricity to an intermediary distributor in view of the decision of this Court in State of AP (supra). The question of whether the appellant is liable to file returns under Sections 6B(1) and 5A of the Act is directly related to the issue of whether the sale of electricity by the appellant to BSEB falls under the charging provisions of Section 3(1). The questions raised by the appellant can be adjudicated without delving into any factual dispute. Thus, the present matter is amenable to the writ jurisdiction of the High Court.
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Union of India & Another Vs. M/s. Parameswaran Match Works Etc | was no difference between the two classes of manufacturers from the point of view of revenue as they were all engaged in production of matches and as none of them was expected to produce in the financial year more than 75 million matches on an estimate.8. We do not think that the reasoning of the High Court is correct. It may be noted that it was by the proviso in the notification dated July 21, 1967, that it was made necessary that declaration should be filed by a manufacturer that the total clearance from the factory during a financial year is not estimated to exceed 75 million matches in order to earn the concessional rate of Rs. 3.75 per gross boxes of 50 matches each. The proviso, however, did not say, when the declaration should be filed. The purpose behind that proviso was to enable only bona fide small manufacturers of matches to earn the concessional rate of duty by filing the declaration. All small manufacturers whose estimated clearance was less than 75 million matches would have availed themselves of the opportunity by making the declaration as early as possible as they would become entitled to the concessional rate of duty on their clearance from time to time. It is difficult to imagine that any manufacturer whose estimated total clearance during the financial year did not exceed 75 million matches would have failed to avail of the concessional rate on their clearances by filing the declaration at the earliest possible date. As already stated, the respondent filed its application for licence on September 5, 1967 and made the declaration on that date. The concessional rate of duty was intended for small bona fide units who were in the field when the notification dated September 4,1967, was issued; the concessional rate was not intended to benefit to benefit the large units which had split up into smaller units to earn the concession. The tendency towards fragmentation of the bigger units into smaller ones in order to earn the concessional rate of duty has been noted by the Tariff Commission in its report (See the extract from the report given at p. 500 in M. Match Works v. Asst. Collector, Central Excise, AIR 1974 SC 497 .) The whole object of the notification dated September 4,1967, was to prevent further fragmentation dated September 4,1967, was to prevent further fragmentation of the bigger units into smaller ones in order to get the concessional rate of duty intended for the smaller units and thus defeat the purpose which the Government had in view. In other words the purpose of the notification was to prevent the larger units who were producing and clearing more than 100 million matches in the financial year, 1967-68 and who could not have made the declaration, from splitting up into smaller units in order to avail of the concessional rate of duty by making the declaration subsequently. To achieve that purpose, the Government chose 4-9-1967, as the date before which the declaration should be filed. There can be no doubt that any date chosen for the purpose would, to a certain extent, be arbitrary. That is inevitable.9. Rule 8 of the Central Excise Rules, 1944 made under Sections 6, 12 and 37 of the Act reads:"Power to authorise exemption from duty in special cases - (1) The Central Government may from time to time, by notification in the Official Gazette, exempt subject to such conditions as may be specified in the notification any excisable goods from the whole or any part of duty leviable on such goods.(2) The Central Board of Revenue may by special order in each case exempt from the payment of duty, under circumstances of an exceptional nature on excisable goods."10. The concessional rate of duty can be availed of only by those who satisfy the conditions which have been laid down under the notification. The respondent was not a manufacturer before September 4, 1967, as it had applied for licence only on September 5, 1967 and it could not have made a declaration before September 4, 1967, that its total clearance for the financial year 1967-68 is not estimated to exceed 75 million matches. In the matter of granting concession or exemption from tax, the Government has a wide latitude of discretion. It need not give exemption or concession to everyone in order that it may grant the same to some. As we said, the object of granting the concessional rate of duty was to protect the smaller units in the industry from the competition by the larger ones and that object would have been frustrated if by adopting the device of fragmentation the larger units could become the ultimate beneficiaries of the bounty. That a classification can be founded on a particular date and yet be reasonable, has been held by this Court in several decisions (see M/s. Hathisingh Mfg. Co. Ltd. v. Union of India, (1960) 3 SCR 528 at p. 543 = (AIR 1960 SC 923 at p. 931) Dr. Mohammad Saheb Mahbood Medico v. Deputy Custodian General, (1962) 2 SCR 371 at p. 379 = (AIR 1961 SC 1657 at p. 1661), M/s. Bhikusa Yamasa Kshatriya (P) Ltd. v. Union of India (1964) 1 SCR 860 at p. 880 = (AIR 1963 SC 1591 at p. 1599) and Daruka and Co. v. Union of India. AIR 1973 SC 2711 . The choice of a date as a basis for classification cannot always be dubbed as arbitrary even if no particular reason is forthcoming for the choice unless it is shown to be capricious or whimsical in the circumstances. When it is seen that a line or a point there must be and there is no mathematical or logical way of fixing it precisely, the decision of the legislature or its delegate must be accepted unless we can say that it is very wide of any reasonable mark. See Louisville Gas and E. Co. v. Coleman. (1927) 277 US 32 per Justice Holmes. | 0[ds]7. The High Court was of the view that the classification was unreasonable inasmuch as the fixation of the date for making the declaration, namely, September 4, 1967, as the basis of the classification between those who are entitled to the benefit of the concessional rate of duty and those who are not so entitled, has no nexus with the object of the Act. The High Court said that all manufacturers whose estimated production would not exceed 75 million matches in the financial year 1967-68 would fall under one class and the fact that some among them filed the declaration before September 4, 1967, is not a differential having a nexus with the object of the Act for putting them in a different class. The High Court, therefore, came to the conclusion that there was no difference between the two classes of manufacturers from the point of view of revenue as they were all engaged in production of matches and as none of them was expected to produce in the financial year more than 75 million matches on an estimate.8. We do not think that the reasoning of the High Court is correct. It may be noted that it was by the proviso in the notification dated July 21, 1967, that it was made necessary that declaration should be filed by a manufacturer that the total clearance from the factory during a financial year is not estimated to exceed 75 million matches in order to earn the concessional rate of Rs. 3.75 per gross boxes of 50 matches each. The proviso, however, did not say, when the declaration should be filed. The purpose behind that proviso was to enable only bona fide small manufacturers of matches to earn the concessional rate of duty by filing the declaration. All small manufacturers whose estimated clearance was less than 75 million matches would have availed themselves of the opportunity by making the declaration as early as possible as they would become entitled to the concessional rate of duty on their clearance from time to time. It is difficult to imagine that any manufacturer whose estimated total clearance during the financial year did not exceed 75 million matches would have failed to avail of the concessional rate on their clearances by filing the declaration at the earliest possible date. As already stated, the respondent filed its application for licence on September 5, 1967 and made the declaration on that date. The concessional rate of duty was intended for small bona fide units who were in the field when the notification dated September 4,1967, was issued; the concessional rate was not intended to benefit to benefit the large units which had split up into smaller units to earn the concession. The tendency towards fragmentation of the bigger units into smaller ones in order to earn the concessional rate of duty has been noted by the Tariff Commission in its report (See the extract from the report given at p. 500 in M. Match Works v. Asst. Collector, Central Excise, AIR 1974 SC 497 .) The whole object of the notification dated September 4,1967, was to prevent further fragmentation dated September 4,1967, was to prevent further fragmentation of the bigger units into smaller ones in order to get the concessional rate of duty intended for the smaller units and thus defeat the purpose which the Government had in view. In other words the purpose of the notification was to prevent the larger units who were producing and clearing more than 100 million matches in the financial year, 1967-68 and who could not have made the declaration, from splitting up into smaller units in order to avail of the concessional rate of duty by making the declaration subsequently. To achieve that purpose, the Government chose 4-9-1967, as the date before which the declaration should be filed. There can be no doubt that any date chosen for the purpose would, to a certain extent, be arbitrary. That is inevitable.The concessional rate of duty can be availed of only by those who satisfy the conditions which have been laid down under the notification. The respondent was not a manufacturer before September 4, 1967, as it had applied for licence only on September 5, 1967 and it could not have made a declaration before September 4, 1967, that its total clearance for the financial year 1967-68 is not estimated to exceed 75 million matches. In the matter of granting concession or exemption from tax, the Government has a wide latitude of discretion. It need not give exemption or concession to everyone in order that it may grant the same to some. As we said, the object of granting the concessional rate of duty was to protect the smaller units in the industry from the competition by the larger ones and that object would have been frustrated if by adopting the device of fragmentation the larger units could become the ultimate beneficiaries of the bounty. | 0 | 2,409 | 888 | ### Instruction:
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was no difference between the two classes of manufacturers from the point of view of revenue as they were all engaged in production of matches and as none of them was expected to produce in the financial year more than 75 million matches on an estimate.8. We do not think that the reasoning of the High Court is correct. It may be noted that it was by the proviso in the notification dated July 21, 1967, that it was made necessary that declaration should be filed by a manufacturer that the total clearance from the factory during a financial year is not estimated to exceed 75 million matches in order to earn the concessional rate of Rs. 3.75 per gross boxes of 50 matches each. The proviso, however, did not say, when the declaration should be filed. The purpose behind that proviso was to enable only bona fide small manufacturers of matches to earn the concessional rate of duty by filing the declaration. All small manufacturers whose estimated clearance was less than 75 million matches would have availed themselves of the opportunity by making the declaration as early as possible as they would become entitled to the concessional rate of duty on their clearance from time to time. It is difficult to imagine that any manufacturer whose estimated total clearance during the financial year did not exceed 75 million matches would have failed to avail of the concessional rate on their clearances by filing the declaration at the earliest possible date. As already stated, the respondent filed its application for licence on September 5, 1967 and made the declaration on that date. The concessional rate of duty was intended for small bona fide units who were in the field when the notification dated September 4,1967, was issued; the concessional rate was not intended to benefit to benefit the large units which had split up into smaller units to earn the concession. The tendency towards fragmentation of the bigger units into smaller ones in order to earn the concessional rate of duty has been noted by the Tariff Commission in its report (See the extract from the report given at p. 500 in M. Match Works v. Asst. Collector, Central Excise, AIR 1974 SC 497 .) The whole object of the notification dated September 4,1967, was to prevent further fragmentation dated September 4,1967, was to prevent further fragmentation of the bigger units into smaller ones in order to get the concessional rate of duty intended for the smaller units and thus defeat the purpose which the Government had in view. In other words the purpose of the notification was to prevent the larger units who were producing and clearing more than 100 million matches in the financial year, 1967-68 and who could not have made the declaration, from splitting up into smaller units in order to avail of the concessional rate of duty by making the declaration subsequently. To achieve that purpose, the Government chose 4-9-1967, as the date before which the declaration should be filed. There can be no doubt that any date chosen for the purpose would, to a certain extent, be arbitrary. That is inevitable.9. Rule 8 of the Central Excise Rules, 1944 made under Sections 6, 12 and 37 of the Act reads:"Power to authorise exemption from duty in special cases - (1) The Central Government may from time to time, by notification in the Official Gazette, exempt subject to such conditions as may be specified in the notification any excisable goods from the whole or any part of duty leviable on such goods.(2) The Central Board of Revenue may by special order in each case exempt from the payment of duty, under circumstances of an exceptional nature on excisable goods."10. The concessional rate of duty can be availed of only by those who satisfy the conditions which have been laid down under the notification. The respondent was not a manufacturer before September 4, 1967, as it had applied for licence only on September 5, 1967 and it could not have made a declaration before September 4, 1967, that its total clearance for the financial year 1967-68 is not estimated to exceed 75 million matches. In the matter of granting concession or exemption from tax, the Government has a wide latitude of discretion. It need not give exemption or concession to everyone in order that it may grant the same to some. As we said, the object of granting the concessional rate of duty was to protect the smaller units in the industry from the competition by the larger ones and that object would have been frustrated if by adopting the device of fragmentation the larger units could become the ultimate beneficiaries of the bounty. That a classification can be founded on a particular date and yet be reasonable, has been held by this Court in several decisions (see M/s. Hathisingh Mfg. Co. Ltd. v. Union of India, (1960) 3 SCR 528 at p. 543 = (AIR 1960 SC 923 at p. 931) Dr. Mohammad Saheb Mahbood Medico v. Deputy Custodian General, (1962) 2 SCR 371 at p. 379 = (AIR 1961 SC 1657 at p. 1661), M/s. Bhikusa Yamasa Kshatriya (P) Ltd. v. Union of India (1964) 1 SCR 860 at p. 880 = (AIR 1963 SC 1591 at p. 1599) and Daruka and Co. v. Union of India. AIR 1973 SC 2711 . The choice of a date as a basis for classification cannot always be dubbed as arbitrary even if no particular reason is forthcoming for the choice unless it is shown to be capricious or whimsical in the circumstances. When it is seen that a line or a point there must be and there is no mathematical or logical way of fixing it precisely, the decision of the legislature or its delegate must be accepted unless we can say that it is very wide of any reasonable mark. See Louisville Gas and E. Co. v. Coleman. (1927) 277 US 32 per Justice Holmes.
### Response:
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7. The High Court was of the view that the classification was unreasonable inasmuch as the fixation of the date for making the declaration, namely, September 4, 1967, as the basis of the classification between those who are entitled to the benefit of the concessional rate of duty and those who are not so entitled, has no nexus with the object of the Act. The High Court said that all manufacturers whose estimated production would not exceed 75 million matches in the financial year 1967-68 would fall under one class and the fact that some among them filed the declaration before September 4, 1967, is not a differential having a nexus with the object of the Act for putting them in a different class. The High Court, therefore, came to the conclusion that there was no difference between the two classes of manufacturers from the point of view of revenue as they were all engaged in production of matches and as none of them was expected to produce in the financial year more than 75 million matches on an estimate.8. We do not think that the reasoning of the High Court is correct. It may be noted that it was by the proviso in the notification dated July 21, 1967, that it was made necessary that declaration should be filed by a manufacturer that the total clearance from the factory during a financial year is not estimated to exceed 75 million matches in order to earn the concessional rate of Rs. 3.75 per gross boxes of 50 matches each. The proviso, however, did not say, when the declaration should be filed. The purpose behind that proviso was to enable only bona fide small manufacturers of matches to earn the concessional rate of duty by filing the declaration. All small manufacturers whose estimated clearance was less than 75 million matches would have availed themselves of the opportunity by making the declaration as early as possible as they would become entitled to the concessional rate of duty on their clearance from time to time. It is difficult to imagine that any manufacturer whose estimated total clearance during the financial year did not exceed 75 million matches would have failed to avail of the concessional rate on their clearances by filing the declaration at the earliest possible date. As already stated, the respondent filed its application for licence on September 5, 1967 and made the declaration on that date. The concessional rate of duty was intended for small bona fide units who were in the field when the notification dated September 4,1967, was issued; the concessional rate was not intended to benefit to benefit the large units which had split up into smaller units to earn the concession. The tendency towards fragmentation of the bigger units into smaller ones in order to earn the concessional rate of duty has been noted by the Tariff Commission in its report (See the extract from the report given at p. 500 in M. Match Works v. Asst. Collector, Central Excise, AIR 1974 SC 497 .) The whole object of the notification dated September 4,1967, was to prevent further fragmentation dated September 4,1967, was to prevent further fragmentation of the bigger units into smaller ones in order to get the concessional rate of duty intended for the smaller units and thus defeat the purpose which the Government had in view. In other words the purpose of the notification was to prevent the larger units who were producing and clearing more than 100 million matches in the financial year, 1967-68 and who could not have made the declaration, from splitting up into smaller units in order to avail of the concessional rate of duty by making the declaration subsequently. To achieve that purpose, the Government chose 4-9-1967, as the date before which the declaration should be filed. There can be no doubt that any date chosen for the purpose would, to a certain extent, be arbitrary. That is inevitable.The concessional rate of duty can be availed of only by those who satisfy the conditions which have been laid down under the notification. The respondent was not a manufacturer before September 4, 1967, as it had applied for licence only on September 5, 1967 and it could not have made a declaration before September 4, 1967, that its total clearance for the financial year 1967-68 is not estimated to exceed 75 million matches. In the matter of granting concession or exemption from tax, the Government has a wide latitude of discretion. It need not give exemption or concession to everyone in order that it may grant the same to some. As we said, the object of granting the concessional rate of duty was to protect the smaller units in the industry from the competition by the larger ones and that object would have been frustrated if by adopting the device of fragmentation the larger units could become the ultimate beneficiaries of the bounty.
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P. Ayyanar Pothi Vs. Supriya Ayyanar Pothi | 1. Leave granted. 2. This appeal has been filed by the appellant-husband challenging the validity of the impugned order dated 9th September, 2015 passed by the High Court of Bombay, Aurangabad. 3. The controversy in this case is that the respondent-wife has filed Miscellaneous Civil Application No. 132 of 2015 before the High Court of Bombay, Bench at Aurangabad seeking transfer of the divorce petition bearing HMOP No. 224 of 2013 filed by the appellant- husband before a Subordinate Court at Srivilliputtur, District Viruddhanagar, Tamil Nadu to the Family Court at Aurangabad, Maharashtra. The Aurangabad Bench of Bombay High Court entertained the transfer application and while issuing notice, stayed the divorce proceedings pending before the subordinate Court of Madras High Court. 4. Learned counsel for the appellant argues that the Bombay High Court committed jurisdictional error by entertaining the transfer application as it does not possess the power to transfer a case pending before a subordinate Court of another High Court. 5. Section 25 of Civil Procedure Code clearly envisages that the power relating to the inter-State transfer and transfer of cases from one High Court to another High Court or its subordinate Courts is vested solely on this Court and not on the High Courts. Thus, in view of the statutory provisions, the High Court of Bombay does not have the jurisdiction to entertain a petition seeking transfer of divorce proceedings from a subordinate Court of Madras High Court. | 1[ds]5. Section 25 of Civil Procedure Code clearly envisages that the power relating to thee transfer and transfer of cases from one High Court to another High Court or its subordinate Courts is vested solely on this Court and not on the High Courts. Thus, in view of the statutory provisions, the High Court of Bombay does not have the jurisdiction to entertain a petition seeking transfer of divorce proceedings from a subordinate Court of Madras High Court. | 1 | 263 | 87 | ### Instruction:
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1. Leave granted. 2. This appeal has been filed by the appellant-husband challenging the validity of the impugned order dated 9th September, 2015 passed by the High Court of Bombay, Aurangabad. 3. The controversy in this case is that the respondent-wife has filed Miscellaneous Civil Application No. 132 of 2015 before the High Court of Bombay, Bench at Aurangabad seeking transfer of the divorce petition bearing HMOP No. 224 of 2013 filed by the appellant- husband before a Subordinate Court at Srivilliputtur, District Viruddhanagar, Tamil Nadu to the Family Court at Aurangabad, Maharashtra. The Aurangabad Bench of Bombay High Court entertained the transfer application and while issuing notice, stayed the divorce proceedings pending before the subordinate Court of Madras High Court. 4. Learned counsel for the appellant argues that the Bombay High Court committed jurisdictional error by entertaining the transfer application as it does not possess the power to transfer a case pending before a subordinate Court of another High Court. 5. Section 25 of Civil Procedure Code clearly envisages that the power relating to the inter-State transfer and transfer of cases from one High Court to another High Court or its subordinate Courts is vested solely on this Court and not on the High Courts. Thus, in view of the statutory provisions, the High Court of Bombay does not have the jurisdiction to entertain a petition seeking transfer of divorce proceedings from a subordinate Court of Madras High Court.
### Response:
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### Explanation:
5. Section 25 of Civil Procedure Code clearly envisages that the power relating to thee transfer and transfer of cases from one High Court to another High Court or its subordinate Courts is vested solely on this Court and not on the High Courts. Thus, in view of the statutory provisions, the High Court of Bombay does not have the jurisdiction to entertain a petition seeking transfer of divorce proceedings from a subordinate Court of Madras High Court.
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Kadamanian Vs. State | of the Criminal Procedure Code, they had stated, that they had seen the appellant and the co-accused in the company of the deceased – Jayalakshmi. While recording their statements before the trial Court, Shanmugam – PW6 and Mubarak – PW7 resiled from the version indicated by them, to the investigating officer. It is therefore apparent, that no last seen evidence, could be substantiated by the prosecution, during the course of the trial of the appellant. We are of the view, that the deposition at the hands of Shanmugam – PW6 and Mubarak – PW7, can be described as a matter of improper handling of the case, inasmuch as, both Shanmugam – PW6 and Mubarak – PW7 had also recorded their statements under Section 164 of the Criminal Procedure Code, affirming, that they had seen the appellant and the co-accused in the company of the deceased – Jayalakshmi. However, since the statement of the two prosecution witnesses recorded under Sections 161 and 164 of the Criminal Procedure Code, was not put to them, after they were declared hostile, and were subjected to cross-examination at the behest of the prosecution, we have no alternative, but to overlook the last seen evidence sought to be projected by the prosecution. 10. In the above view of the matter, it was the contention of the learned counsel for the appellant, that there was no material evidence available on the record of the case, to return a clear finding of guilt, against the appellant. It was submitted, that the circumstantial evidence projected through the prosecution witnesses, did not complete the chain of circumstances, as would establish the guilt of the appellant. 11. We have given our thoughtful consideration to the submissions advanced at the hands of the learned counsel for the appellant. As noticed hereinabove, there was a clear and categoric extra-judicial confession made by the appellant to R.V. Alagurajan – PW12 on 22.1.2008. During the course of recording his testimony, R.V. Alagurajan – PW12 was subjected to vigorous cross-examination. His testimony however remained unshaken. Resultantly, the trial Court, as also, the High Court, concluded that the extra-judicial confession was genuine. We endorse the above determination at the hands of the trial Court and the High Court. Consequent upon the accused-appellants extra-judicial confession, the appellant was taken to the police station by R.V. Alagurajan – PW12, and produced before Inspector Arumugam – PW20. It is therefore apparent, that the arrest of the appellant at the behest of R.V. Alagurajan – PW12, has also been clearly established. The next chain in the circumstantial evidence projected at the hands of the prosecution, was the recovery of the nose-pin on 22.1.2008, based on the statement of the appellant, to Inspector Arumugam – PW20. The afore-stated nose-pin has been identified by the members of the family of the deceased, as the one that was actually worn by the deceased, when she went missing. Since the nose-pin was recovered at the instance of the appellant, from a remote place under an electric transformer, no one but the appellant could have been aware of its location. Its recovery was therefore suffient, along with the other evidence referred to above, to clearly implicate the appellant. It is also necessary for us to mention, that there is yet another aspect of the matter, which furthers the cause of the prosecution, namely, the statement of M.Abdul Khader – PW8. In this behalf, it would be relevant to mention, that the appellant used to hire a share-autorikshaw, for earning his livelihood. The aforesaid autorikshaw was hired from the garrage of Annamalai – PW9. M.Abdul Khader – PW8 was engaged as an accountant at the garrage of Annamalai – PW9. It was pointed out in the deposition of M.Abdul Khader – PW8, that on a daily basis the share-autorikshaw hired by the accused-appellant and the co-accused used to be returned to the garrage of Annamalai – PW9 between 8.30 p.m to 9.30 p.m.. However, on the date of occurrence, i.e., the relevant date when the alleged crime was committed, the share-autorikshaw was returned on the following day, at 1.30 a.m. The case of the prosecution is, that the autorikshaw was used by the appellant and the co-accused in commission of the crime. It was imperative for the appellant to have expressly indicated the reasons and justification for not returning the autorikshaw to the garrage of Annamalai – PW9 between 8.30 p.m. to 9.30 p.m., on the relevant date. Not having done so, by itself, is a cause of suspicion, specially when there is other material evidence, projected by the prosecution, to demonstrate the involvement of the appellant, in the commission of the crime. We are of the view, that the aforesaid evidence recorded by the prosecution was sufficient, even in the absence of last seen evidence, to return a finding of guilt against the appellant. 12. It is imperative for us to record, that in addition to the afore-stated submissions advanced at the hands of the learned counsel for the appellant, learned counsel had also contended, that the co-accused was acquitted by the High Court, and that, his acquittal was based on the same evidence, produced through the same witnesses. It was contended, that it was improper and unjustified, for the High Court, to have convicted the appellant, and acquitted the co-accused, on the same evidence. We find no justification in the instant contention advanced at the hands of the learned counsel. We have already recorded hereinabove, that the extra judicial confession made to R.V. Alagurajan – PW12, was by the appellant herein, and not by the co-accused. We have also recorded hereinabove, that the recovery of the nose-pin found missing from the nose of the deceased, was at the instance of the appellant, and not at the hands of the co-accused. Therefore, the case of the co-accused, was on a clearly different footing, and there was sufficient justification for the High Court, to have taken a different view, SW in the case of the co-accused. 13. | 0[ds]We have given our thoughtful consideration to the two submissions advanced at the hands of the learned counsel for the appellant. Insofar as theconfession is concerned, it is necessary to emphasize, that theial confession over a span of time, in the facts of the present case, was inconsequential. We say so, because the appellant was not a suspect till 21.1.2008. The appellant feared his arrest with reference to the allegations pertaining to the deceased – Jayalakshmi, only when the investigating officer, Arumugam – PW20 affirmed with Shanmugam – PW6 on 21.01.2008, that the appellant had been seen, close to the place of occurrence. It is immediately thereafter, and on the immediately following day, that the appellant made anconfession to R.V. Alagurajan –as the submissions advanced at the hands of the learned counsel for the appellant with reference to theare concerned, we are of the view, that none of the contentions advanced on behalf of the appellant, can be accepted as a valid justification, for exculpating the appellant from the charges levelled against him. In this behalf, it would be relevant to mention, that a missing persons report was registered by the father of the deceased – P. Matheswaran, on 7.9.2007. In the missing persons report, it was clearly mentioned, that the deceased was wearing awhen she had gone missing. The reason for indicating, that the deceased was wearing awas with the clear purpose of aiding the identification of his missing daughter – Jayalakshmi. This was obviously for the reason, that the deceased – Jayalakshmi, was mentally unstable, and would not have been in a position to express her identification, or the identification of her parents, or the place of her residence, by herself. In the recovery mahazar dated 22.1.2008, the recoveredwas depicted as being imbedded with four white stones. It is therefore apparent, that theworn by the deceased – Jayalakshmi when she had gone missing, was not any ordinary unidentifiable artifact, but was clearly different from the usualNot only that, the photograph of the deceased submitted along with the missing persons report dated 7.9.2007 shows a clear picture of theand therefore, to say that the involvement of the accused on the basis of thewas improper, is not acceptable. Insofar as the absence of blood, skin tissue and bone tissue on theis concerned, it is clear to us, that the submissions were made by the learned counsel, without having viewed the photograph of the deceased, as is available on the record of the trial Court. As already noticed hereinabove, thewas worn by the deceased – Jayalakshmi, in the photograph attached to the missing persons report dated 7.9.2007. The same was missing from the photograph of the deceased, after her body was recovered. The nose itself was not mutilated, and wasNo injury whatsoever was found on the nose, in the photograph of the deceased. It was therefore wholly unjustified, for the learned counsel for the appellant to have raised the submission, that the absence of any human tissue on thewould lead to the inference, that thein question, was not the one belonging to the deceased. For the reasons recorded hereinabove, we find no merit in the instant contentions, advanced on behalf of thegiven our thoughtful consideration on the above contention, we are of the view, that the judgment relied upon by learned counsel, is wholly inapplicable in the facts and circumstances of this case, for two distinguishing features in the present case, namely, that the extra judicial confession in the instant case was made to the Village Administrative Officer R.V. Alagurajan – PW12, who was totally unbiased and unconnected with the controversy in hand. He could also not to be stated to be inimical to the appellant. He is not shown to have any relationship with either the complainant or the accused. Moreover, insofar as the extra judicial confession made in the judgment relied upon by the appellant is concerned, the same had been made by the accused, to the sister of the deceased, which by itself made the extra judicial confession extremely doubtful. We are therefore not impressed with the submission advanced by the learned counsel for the appellant, based on the citedthe above view of the matter, it was the contention of the learned counsel for the appellant, that there was no material evidence available on the record of the case, to return a clear finding of guilt, against the appellant. It was submitted, that the circumstantial evidence projected through the prosecution witnesses, did not complete the chain of circumstances, as would establish the guilt of thehave given our thoughtful consideration to the submissions advanced at the hands of the learned counsel for the appellant. As noticed hereinabove, there was a clear and categoricconfession made by the appellant to R.V. Alagurajan – PW12 on 22.1.2008. During the course of recording his testimony, R.V. Alagurajan – PW12 was subjected to vigorousHis testimony however remained unshaken. Resultantly, the trial Court, as also, the High Court, concluded that theconfession was genuine. We endorse the above determination at the hands of the trial Court and the High Court. Consequent upon thel confession, the appellant was taken to the police station by R.V. Alagurajan – PW12, and produced before Inspector Arumugam – PW20. It is therefore apparent, that the arrest of the appellant at the behest of R.V. Alagurajan – PW12, has also been clearly established. The next chain in the circumstantial evidence projected at the hands of the prosecution, was the recovery of theon 22.1.2008, based on the statement of the appellant, to Inspector Arumugam – PW20. Then has been identified by the members of the family of the deceased, as the one that was actually worn by the deceased, when she went missing. Since thewas recovered at the instance of the appellant, from a remote place under an electric transformer, no one but the appellant could have been aware of its location. Its recovery was therefore suffient, along with the other evidence referred to above, to clearly implicate the appellant. It is also necessary for us to mention, that there is yet another aspect of the matter, which furthers the cause of the prosecution, namely, the statement of M.Abdul Khader – PW8. In this behalf, it would be relevant to mention, that the appellant used to hire afor earning his livelihood. The aforesaid autorikshaw was hired from the garrage of Annamalai – PW9. M.Abdul Khader – PW8 was engaged as an accountant at the garrage of Annamalai – PW9. It was pointed out in the deposition of M.Abdul Khader – PW8, that on a daily basis thehired by thesed used to be returned to the garrage of Annamalai – PW9 between 8.30 p.m to 9.30 p.m.. However, on the date of occurrence, i.e., the relevant date when the alleged crime was committed, thewas returned on the following day, at 1.30 a.m. The case of the prosecution is, that the autorikshaw was used by the appellant and thein commission of the crime. It was imperative for the appellant to have expressly indicated the reasons and justification for not returning the autorikshaw to the garrage of Annamalai – PW9 between 8.30 p.m. to 9.30 p.m., on the relevant date. Not having done so, by itself, is a cause of suspicion, specially when there is other material evidence, projected by the prosecution, to demonstrate the involvement of the appellant, in the commission of the crime. We are of the view, that the aforesaid evidence recorded by the prosecution was sufficient, even in the absence of last seen evidence, to return a finding of guilt against theis imperative for us to record, that in addition to thesubmissions advanced at the hands of the learned counsel for the appellant, learned counsel had also contended, that thewas acquitted by the High Court, and that, his acquittal was based on the same evidence, produced through the same witnesses. It was contended, that it was improper and unjustified, for the High Court, to have convicted the appellant, and acquitted theon the same evidence. We find no justification in the instant contention advanced at the hands of the learned counsel. We have already recorded hereinabove, that the extra judicial confession made to R.V. Alagurajan – PW12, was by the appellant herein, and not by theWe have also recorded hereinabove, that the recovery of thefound missing from the nose of the deceased, was at the instance of the appellant, and not at the hands of theTherefore, the case of thewas on a clearly different footing, and there was sufficient justification for the High Court, to have taken a different view, SW in the case of the | 0 | 5,667 | 1,619 | ### Instruction:
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of the Criminal Procedure Code, they had stated, that they had seen the appellant and the co-accused in the company of the deceased – Jayalakshmi. While recording their statements before the trial Court, Shanmugam – PW6 and Mubarak – PW7 resiled from the version indicated by them, to the investigating officer. It is therefore apparent, that no last seen evidence, could be substantiated by the prosecution, during the course of the trial of the appellant. We are of the view, that the deposition at the hands of Shanmugam – PW6 and Mubarak – PW7, can be described as a matter of improper handling of the case, inasmuch as, both Shanmugam – PW6 and Mubarak – PW7 had also recorded their statements under Section 164 of the Criminal Procedure Code, affirming, that they had seen the appellant and the co-accused in the company of the deceased – Jayalakshmi. However, since the statement of the two prosecution witnesses recorded under Sections 161 and 164 of the Criminal Procedure Code, was not put to them, after they were declared hostile, and were subjected to cross-examination at the behest of the prosecution, we have no alternative, but to overlook the last seen evidence sought to be projected by the prosecution. 10. In the above view of the matter, it was the contention of the learned counsel for the appellant, that there was no material evidence available on the record of the case, to return a clear finding of guilt, against the appellant. It was submitted, that the circumstantial evidence projected through the prosecution witnesses, did not complete the chain of circumstances, as would establish the guilt of the appellant. 11. We have given our thoughtful consideration to the submissions advanced at the hands of the learned counsel for the appellant. As noticed hereinabove, there was a clear and categoric extra-judicial confession made by the appellant to R.V. Alagurajan – PW12 on 22.1.2008. During the course of recording his testimony, R.V. Alagurajan – PW12 was subjected to vigorous cross-examination. His testimony however remained unshaken. Resultantly, the trial Court, as also, the High Court, concluded that the extra-judicial confession was genuine. We endorse the above determination at the hands of the trial Court and the High Court. Consequent upon the accused-appellants extra-judicial confession, the appellant was taken to the police station by R.V. Alagurajan – PW12, and produced before Inspector Arumugam – PW20. It is therefore apparent, that the arrest of the appellant at the behest of R.V. Alagurajan – PW12, has also been clearly established. The next chain in the circumstantial evidence projected at the hands of the prosecution, was the recovery of the nose-pin on 22.1.2008, based on the statement of the appellant, to Inspector Arumugam – PW20. The afore-stated nose-pin has been identified by the members of the family of the deceased, as the one that was actually worn by the deceased, when she went missing. Since the nose-pin was recovered at the instance of the appellant, from a remote place under an electric transformer, no one but the appellant could have been aware of its location. Its recovery was therefore suffient, along with the other evidence referred to above, to clearly implicate the appellant. It is also necessary for us to mention, that there is yet another aspect of the matter, which furthers the cause of the prosecution, namely, the statement of M.Abdul Khader – PW8. In this behalf, it would be relevant to mention, that the appellant used to hire a share-autorikshaw, for earning his livelihood. The aforesaid autorikshaw was hired from the garrage of Annamalai – PW9. M.Abdul Khader – PW8 was engaged as an accountant at the garrage of Annamalai – PW9. It was pointed out in the deposition of M.Abdul Khader – PW8, that on a daily basis the share-autorikshaw hired by the accused-appellant and the co-accused used to be returned to the garrage of Annamalai – PW9 between 8.30 p.m to 9.30 p.m.. However, on the date of occurrence, i.e., the relevant date when the alleged crime was committed, the share-autorikshaw was returned on the following day, at 1.30 a.m. The case of the prosecution is, that the autorikshaw was used by the appellant and the co-accused in commission of the crime. It was imperative for the appellant to have expressly indicated the reasons and justification for not returning the autorikshaw to the garrage of Annamalai – PW9 between 8.30 p.m. to 9.30 p.m., on the relevant date. Not having done so, by itself, is a cause of suspicion, specially when there is other material evidence, projected by the prosecution, to demonstrate the involvement of the appellant, in the commission of the crime. We are of the view, that the aforesaid evidence recorded by the prosecution was sufficient, even in the absence of last seen evidence, to return a finding of guilt against the appellant. 12. It is imperative for us to record, that in addition to the afore-stated submissions advanced at the hands of the learned counsel for the appellant, learned counsel had also contended, that the co-accused was acquitted by the High Court, and that, his acquittal was based on the same evidence, produced through the same witnesses. It was contended, that it was improper and unjustified, for the High Court, to have convicted the appellant, and acquitted the co-accused, on the same evidence. We find no justification in the instant contention advanced at the hands of the learned counsel. We have already recorded hereinabove, that the extra judicial confession made to R.V. Alagurajan – PW12, was by the appellant herein, and not by the co-accused. We have also recorded hereinabove, that the recovery of the nose-pin found missing from the nose of the deceased, was at the instance of the appellant, and not at the hands of the co-accused. Therefore, the case of the co-accused, was on a clearly different footing, and there was sufficient justification for the High Court, to have taken a different view, SW in the case of the co-accused. 13.
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### Explanation:
report dated 7.9.2007. The same was missing from the photograph of the deceased, after her body was recovered. The nose itself was not mutilated, and wasNo injury whatsoever was found on the nose, in the photograph of the deceased. It was therefore wholly unjustified, for the learned counsel for the appellant to have raised the submission, that the absence of any human tissue on thewould lead to the inference, that thein question, was not the one belonging to the deceased. For the reasons recorded hereinabove, we find no merit in the instant contentions, advanced on behalf of thegiven our thoughtful consideration on the above contention, we are of the view, that the judgment relied upon by learned counsel, is wholly inapplicable in the facts and circumstances of this case, for two distinguishing features in the present case, namely, that the extra judicial confession in the instant case was made to the Village Administrative Officer R.V. Alagurajan – PW12, who was totally unbiased and unconnected with the controversy in hand. He could also not to be stated to be inimical to the appellant. He is not shown to have any relationship with either the complainant or the accused. Moreover, insofar as the extra judicial confession made in the judgment relied upon by the appellant is concerned, the same had been made by the accused, to the sister of the deceased, which by itself made the extra judicial confession extremely doubtful. We are therefore not impressed with the submission advanced by the learned counsel for the appellant, based on the citedthe above view of the matter, it was the contention of the learned counsel for the appellant, that there was no material evidence available on the record of the case, to return a clear finding of guilt, against the appellant. It was submitted, that the circumstantial evidence projected through the prosecution witnesses, did not complete the chain of circumstances, as would establish the guilt of thehave given our thoughtful consideration to the submissions advanced at the hands of the learned counsel for the appellant. As noticed hereinabove, there was a clear and categoricconfession made by the appellant to R.V. Alagurajan – PW12 on 22.1.2008. During the course of recording his testimony, R.V. Alagurajan – PW12 was subjected to vigorousHis testimony however remained unshaken. Resultantly, the trial Court, as also, the High Court, concluded that theconfession was genuine. We endorse the above determination at the hands of the trial Court and the High Court. Consequent upon thel confession, the appellant was taken to the police station by R.V. Alagurajan – PW12, and produced before Inspector Arumugam – PW20. It is therefore apparent, that the arrest of the appellant at the behest of R.V. Alagurajan – PW12, has also been clearly established. The next chain in the circumstantial evidence projected at the hands of the prosecution, was the recovery of theon 22.1.2008, based on the statement of the appellant, to Inspector Arumugam – PW20. Then has been identified by the members of the family of the deceased, as the one that was actually worn by the deceased, when she went missing. Since thewas recovered at the instance of the appellant, from a remote place under an electric transformer, no one but the appellant could have been aware of its location. Its recovery was therefore suffient, along with the other evidence referred to above, to clearly implicate the appellant. It is also necessary for us to mention, that there is yet another aspect of the matter, which furthers the cause of the prosecution, namely, the statement of M.Abdul Khader – PW8. In this behalf, it would be relevant to mention, that the appellant used to hire afor earning his livelihood. The aforesaid autorikshaw was hired from the garrage of Annamalai – PW9. M.Abdul Khader – PW8 was engaged as an accountant at the garrage of Annamalai – PW9. It was pointed out in the deposition of M.Abdul Khader – PW8, that on a daily basis thehired by thesed used to be returned to the garrage of Annamalai – PW9 between 8.30 p.m to 9.30 p.m.. However, on the date of occurrence, i.e., the relevant date when the alleged crime was committed, thewas returned on the following day, at 1.30 a.m. The case of the prosecution is, that the autorikshaw was used by the appellant and thein commission of the crime. It was imperative for the appellant to have expressly indicated the reasons and justification for not returning the autorikshaw to the garrage of Annamalai – PW9 between 8.30 p.m. to 9.30 p.m., on the relevant date. Not having done so, by itself, is a cause of suspicion, specially when there is other material evidence, projected by the prosecution, to demonstrate the involvement of the appellant, in the commission of the crime. We are of the view, that the aforesaid evidence recorded by the prosecution was sufficient, even in the absence of last seen evidence, to return a finding of guilt against theis imperative for us to record, that in addition to thesubmissions advanced at the hands of the learned counsel for the appellant, learned counsel had also contended, that thewas acquitted by the High Court, and that, his acquittal was based on the same evidence, produced through the same witnesses. It was contended, that it was improper and unjustified, for the High Court, to have convicted the appellant, and acquitted theon the same evidence. We find no justification in the instant contention advanced at the hands of the learned counsel. We have already recorded hereinabove, that the extra judicial confession made to R.V. Alagurajan – PW12, was by the appellant herein, and not by theWe have also recorded hereinabove, that the recovery of thefound missing from the nose of the deceased, was at the instance of the appellant, and not at the hands of theTherefore, the case of thewas on a clearly different footing, and there was sufficient justification for the High Court, to have taken a different view, SW in the case of the
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THE STATE OF BIHAR Vs. DR. SACHINDRA NARAYAN | administrative authorities as no crystallised right as such is involved. The protection of such legitimate expectation does not require the fulfilment of the expectation where an overriding public interest requires otherwise. In other words where a persons legitimate expectation is not fulfilled by taking a particular decision then decision-maker should justify the denial of such expectation by showing some overriding public interest. Therefore even if substantive protection of such expectation is contemplated that does not grant an absolute right to a particular person. It simply ensures the circumstances in which that expectation may be denied or restricted. A case of legitimate expectation would arise when a body by representation or by past practice aroused expectation which it would be within its powers to fulfil. The protection is limited to that extent and a judicial review can be within those limits. But as discussed above a person who bases his claim on the doctrine of legitimate expectation, in the first instance, must satisfy that there is a foundation and thus has locus standi to make such a claim. In considering the same several factors which give rise to such legitimate expectation must be present. The decision taken by the authority must be found to be arbitrary, unreasonable and not taken in public interest. If it is a question of policy, even by way of change of old policy, the courts cannot interfere with a decision…..xxx xxx xxx35….It can therefore be seen that legitimate expectation can at the most be one of the grounds which may give rise to judicial review but the granting of relief is very much limited. It would thus appear that there are stronger reasons as to why the legitimate expectation should not be substantively protected than the reasons as to why it should be protected. In other words such a legal obligation exists whenever the case supporting the same in terms of legal principles of different sorts, is stronger than the case against it. As observed in Attorney General for New South Wales case: ?T o strike down the exercise of administrative power solely on the ground of avoiding the disappointment of the legitimate expectations of an individual would be to set the courts adrift on a featureless sea of pragmatism. Moreover, the notion of a legitimate expectation (falling short of a legal right) is too nebulous to form a basis for invalidating the exercise of a power when its exercise otherwise accords with law.? If a denial of legitimate expectation in a given case amounts to denial of right guaranteed or is arbitrary, discriminatory, unfair or biased, gross abuse of power or violation of principles of natural justice, the same can be questioned on the well-known grounds attracting Article 14 but a claim based on mere legitimate expectation without anything more cannot ipso facto give a right to invoke these principles. It can be one of the grounds to consider but the court must lift the veil and see whether the decision is violative of these principles warranting interference…..?21. In a judgment reported as Ram Pravesh Singh and Others v. State of Bihar and Others (2006) 8 SCC 381 , the Court was examining the decision of the State Government that the assets and the liabilities of a Society should be transferred to the State Electricity Board, but not the services of the employees to the Board. It was the said decision of the State which came up for consideration before this Court. It was held that the Board never agreed nor decided to take services of any of the employees of the Society. Therefore, it cannot be said that there was any regularity or predictability or certainty in action which can lead to a legitimate expectation. It was held:-?22. The Board had never agreed nor decided to take services of any of the employees of the Society. In fact, it is not even the case of the appellants that the Board had at any point of time held out any promise or assurance to absorb their services. When the licence of the Society was revoked, the State Government appointed a committee to examine the question whether the Board can take over the services of the employees of the Society. The Committee no doubt recommended that the services of eligible and qualified employees should be taken over. But thereafter the State Government considered the recommendation and rejected the same, apparently due to the precarious condition of the Board which itself was in dire financial straits, and was contemplating retrenchment of its own employees. At all events, any decision by the State Government either to recommend or direct the absorption of the Societys employees was not binding on the Board, as it was a matter where it could independently take a decision. It is also not in dispute that for more than two decades or more, before 1995, the Board had not taken over the employees of any private licensee. There was no occasion for consideration of such a course. Hence, it cannot be said that there was any regularity or predictability or certainty in action which can lead to a legitimate expectation.?22. In view of the above judgments, legitimate expectation is one of the grounds of judicial review but unless a legal obligation exists, there cannot be any legitimate expectation. The legitimate expectation is not a wish or a desire or a hope, therefore, it cannot be claimed or demanded as a right. The payment of pension in the past will not confer an enforceable right in favour of the Institute or its employees.23. Thus, the resolution of the Board of the Institute to implement a retirement benefit scheme from its own resources will not bind the State Government to pay the amount of pension to the employees of the Institute. The employees of such Institute cannot be treated at par with the employees of the State Government nor the State can be burdened with the responsibility to pay pension to the employees of the Institute. | 1[ds]15. Section 6 of the Act empowers the Board to hold control and administer the property and the funds of the Institute. The Board is further empowered to create posts and appoint officers with a condition that a post of which emoluments exceed rupees one thousand per month shall not be created without the previous sanction of the State Government. Therefore, the Board has freedom to create posts and to hold, control and administer its property and the funds, but the post carrying an emolument of rupees one thousand per month or more cannot be created without the previous approval of the State Government. Though the proviso to Section 6(2) of the Act requires approval of the State Government in respect of creation of post carrying pay of more than Rs.1000/-, but the intention is that any financial expenditure of recurring nature would require the approval of the State Government. Therefore, if the amount of pension exceeds rupees one thousand per month, the same could not be claimed from the State Government as a right without approval. The State Government cannot be called upon to bear the burden of the pension as such scheme was not approved or even sought for. The provision of payment of pension in the Budget of the State Government is a voluntary act not enforceable by a writ of mandamus. The release of grant is in discretion of the grantor and cannot be forced by the grantee.16. It is true that in certain financial years as per documents on record, the amount of pension was specifically mentioned while granting grant to the Institute, but such amount is in discretion of the State and cannot be enforced by a writ of mandamus. There is no obligation on the State to disburse the grant towards the pension amount in terms of the Act or the Rules or even in terms of the resolution of the Board.The money contributed to the Institute by the State Government is one source of the fund of the Institute fund. Section 9(3) of the Act provides that the funds shall be applied towards meeting the expenses of the Institute including expenses incurred in exercise of its powers and discharge of its functions under the Act. Therefore, the retirement pension scheme, at best can be treated to be a part of obligation of utilization of funds of the Institute but such obligation to bear the amount of pension fund is not on State Government as it is not mandated either by Section 8 or Section 9 of the Act.19. The argument of learned counsel for the Institute is that the State Government has provided funds for payment of pension for the last many years, therefore, the Institute and the employees of the Institute have legitimate expectations to receive the amount of pension, is again not tenable.In view of the above judgments, legitimate expectation is one of the grounds of judicial review but unless a legal obligation exists, there cannot be any legitimate expectation. The legitimate expectation is not a wish or a desire or a hope, therefore, it cannot be claimed or demanded as a right. The payment of pension in the past will not confer an enforceable right in favour of the Institute or its employees.23. Thus, the resolution of the Board of the Institute to implement a retirement benefit scheme from its own resources will not bind the State Government to pay the amount of pension to the employees of the Institute. The employees of such Institute cannot be treated at par with the employees of the State Government nor the State can be burdened with the responsibility to pay pension to the employees of the Institute. | 1 | 4,860 | 669 | ### Instruction:
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administrative authorities as no crystallised right as such is involved. The protection of such legitimate expectation does not require the fulfilment of the expectation where an overriding public interest requires otherwise. In other words where a persons legitimate expectation is not fulfilled by taking a particular decision then decision-maker should justify the denial of such expectation by showing some overriding public interest. Therefore even if substantive protection of such expectation is contemplated that does not grant an absolute right to a particular person. It simply ensures the circumstances in which that expectation may be denied or restricted. A case of legitimate expectation would arise when a body by representation or by past practice aroused expectation which it would be within its powers to fulfil. The protection is limited to that extent and a judicial review can be within those limits. But as discussed above a person who bases his claim on the doctrine of legitimate expectation, in the first instance, must satisfy that there is a foundation and thus has locus standi to make such a claim. In considering the same several factors which give rise to such legitimate expectation must be present. The decision taken by the authority must be found to be arbitrary, unreasonable and not taken in public interest. If it is a question of policy, even by way of change of old policy, the courts cannot interfere with a decision…..xxx xxx xxx35….It can therefore be seen that legitimate expectation can at the most be one of the grounds which may give rise to judicial review but the granting of relief is very much limited. It would thus appear that there are stronger reasons as to why the legitimate expectation should not be substantively protected than the reasons as to why it should be protected. In other words such a legal obligation exists whenever the case supporting the same in terms of legal principles of different sorts, is stronger than the case against it. As observed in Attorney General for New South Wales case: ?T o strike down the exercise of administrative power solely on the ground of avoiding the disappointment of the legitimate expectations of an individual would be to set the courts adrift on a featureless sea of pragmatism. Moreover, the notion of a legitimate expectation (falling short of a legal right) is too nebulous to form a basis for invalidating the exercise of a power when its exercise otherwise accords with law.? If a denial of legitimate expectation in a given case amounts to denial of right guaranteed or is arbitrary, discriminatory, unfair or biased, gross abuse of power or violation of principles of natural justice, the same can be questioned on the well-known grounds attracting Article 14 but a claim based on mere legitimate expectation without anything more cannot ipso facto give a right to invoke these principles. It can be one of the grounds to consider but the court must lift the veil and see whether the decision is violative of these principles warranting interference…..?21. In a judgment reported as Ram Pravesh Singh and Others v. State of Bihar and Others (2006) 8 SCC 381 , the Court was examining the decision of the State Government that the assets and the liabilities of a Society should be transferred to the State Electricity Board, but not the services of the employees to the Board. It was the said decision of the State which came up for consideration before this Court. It was held that the Board never agreed nor decided to take services of any of the employees of the Society. Therefore, it cannot be said that there was any regularity or predictability or certainty in action which can lead to a legitimate expectation. It was held:-?22. The Board had never agreed nor decided to take services of any of the employees of the Society. In fact, it is not even the case of the appellants that the Board had at any point of time held out any promise or assurance to absorb their services. When the licence of the Society was revoked, the State Government appointed a committee to examine the question whether the Board can take over the services of the employees of the Society. The Committee no doubt recommended that the services of eligible and qualified employees should be taken over. But thereafter the State Government considered the recommendation and rejected the same, apparently due to the precarious condition of the Board which itself was in dire financial straits, and was contemplating retrenchment of its own employees. At all events, any decision by the State Government either to recommend or direct the absorption of the Societys employees was not binding on the Board, as it was a matter where it could independently take a decision. It is also not in dispute that for more than two decades or more, before 1995, the Board had not taken over the employees of any private licensee. There was no occasion for consideration of such a course. Hence, it cannot be said that there was any regularity or predictability or certainty in action which can lead to a legitimate expectation.?22. In view of the above judgments, legitimate expectation is one of the grounds of judicial review but unless a legal obligation exists, there cannot be any legitimate expectation. The legitimate expectation is not a wish or a desire or a hope, therefore, it cannot be claimed or demanded as a right. The payment of pension in the past will not confer an enforceable right in favour of the Institute or its employees.23. Thus, the resolution of the Board of the Institute to implement a retirement benefit scheme from its own resources will not bind the State Government to pay the amount of pension to the employees of the Institute. The employees of such Institute cannot be treated at par with the employees of the State Government nor the State can be burdened with the responsibility to pay pension to the employees of the Institute.
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1
### Explanation:
15. Section 6 of the Act empowers the Board to hold control and administer the property and the funds of the Institute. The Board is further empowered to create posts and appoint officers with a condition that a post of which emoluments exceed rupees one thousand per month shall not be created without the previous sanction of the State Government. Therefore, the Board has freedom to create posts and to hold, control and administer its property and the funds, but the post carrying an emolument of rupees one thousand per month or more cannot be created without the previous approval of the State Government. Though the proviso to Section 6(2) of the Act requires approval of the State Government in respect of creation of post carrying pay of more than Rs.1000/-, but the intention is that any financial expenditure of recurring nature would require the approval of the State Government. Therefore, if the amount of pension exceeds rupees one thousand per month, the same could not be claimed from the State Government as a right without approval. The State Government cannot be called upon to bear the burden of the pension as such scheme was not approved or even sought for. The provision of payment of pension in the Budget of the State Government is a voluntary act not enforceable by a writ of mandamus. The release of grant is in discretion of the grantor and cannot be forced by the grantee.16. It is true that in certain financial years as per documents on record, the amount of pension was specifically mentioned while granting grant to the Institute, but such amount is in discretion of the State and cannot be enforced by a writ of mandamus. There is no obligation on the State to disburse the grant towards the pension amount in terms of the Act or the Rules or even in terms of the resolution of the Board.The money contributed to the Institute by the State Government is one source of the fund of the Institute fund. Section 9(3) of the Act provides that the funds shall be applied towards meeting the expenses of the Institute including expenses incurred in exercise of its powers and discharge of its functions under the Act. Therefore, the retirement pension scheme, at best can be treated to be a part of obligation of utilization of funds of the Institute but such obligation to bear the amount of pension fund is not on State Government as it is not mandated either by Section 8 or Section 9 of the Act.19. The argument of learned counsel for the Institute is that the State Government has provided funds for payment of pension for the last many years, therefore, the Institute and the employees of the Institute have legitimate expectations to receive the amount of pension, is again not tenable.In view of the above judgments, legitimate expectation is one of the grounds of judicial review but unless a legal obligation exists, there cannot be any legitimate expectation. The legitimate expectation is not a wish or a desire or a hope, therefore, it cannot be claimed or demanded as a right. The payment of pension in the past will not confer an enforceable right in favour of the Institute or its employees.23. Thus, the resolution of the Board of the Institute to implement a retirement benefit scheme from its own resources will not bind the State Government to pay the amount of pension to the employees of the Institute. The employees of such Institute cannot be treated at par with the employees of the State Government nor the State can be burdened with the responsibility to pay pension to the employees of the Institute.
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Bharat Petroleum Corpn. Ltd Vs. The Great Eastern Shipping Co. Ltd | the charterers and the vessel owners. Admittedly, no such agreement was signed between the parties. Indubitably, there was no further exchange of correspondence between the parties - during the year. Nevertheless, the appellant continued to use the vessel on hire with them under the time charter dated 6th May, 1997. The conduct of the parties, as evidenced in the said correspondence and, in particular appellant’s silence on respondent’s letters dated 5th November, 1998 and 4th January, 1999, coupled with the fact that they continued to use the vessel, manifestly goes to show that except for the charter rate, there was no other dispute between the parties. They accepted the stand of the respondent sub silentio and thus, continued to bind themselves by other terms and conditions contained in the Charter Party dated 6th May, 1997, which obviously included the arbitration clause. 21. We may examine the issue from another angle, based on respondent’s stand that charter party dated 6th May, 1997 continues to be in vogue till the chartered vessel is re-delivered. In this context, it would be appropriate to refer to Clauses 4 and 23 of the Charter Party dated 6th May, 1997. These are in the following terms: “4. Delivery & Redelivery4.1 The vessel shall continue to be on charter to charterers in direct continuation from 2348 hrs. 22.09.1996 to 30.06.1998. The vessel shall be re-delivered by charterers to owners on dropping last outward pilot at any port on west coast of India at charterers option. Charterers to give owners 15 days notice to probable port of re-delivery.4.2 Charterers to load last three cargoes clean and re-deliver the vessel in clean condition.23. Final VoyageShould the vessel be on her voyage towards the port of redelivery at the time of payment of hire is due, payment of hire shall be made for such length of time as Owners and Charterers may agree upon as being estimated time necessary to complete the voyage, less any disbursements made or expected to be made or expenses incurred or expected to be incurred by Charterers for owners account and less the estimated amount of bunker fuel remaining at the termination of the voyage and when the vessel is redelivered any overpayment shall be refunded by the owners or underpayment paid by Charterers. Notwithstanding the provisions of clause 4 hereof should the vessel be upon voyage at the expiry of the period of this charter, Charterers shall have the use of vessel at the same rate and conditions for such extended time as may be necessary for the completion of the round voyage on which she is engaged and her return to a port of redelivery as provided by the Charter.” 22. On a conjoint reading of the said clauses, it is plain that the appellant was under an obligation to re-deliver the vessel as per the procedure contemplated in the afore-noted clauses. Indisputably, the vessel in question had not been re-delivered at least during the relevant period and the appellant continued to use the vessel beyond 31st August, 1998. Having failed to re-deliver the vessel in terms of Clause 4.1 of the Charter Party, the appellant cannot plead that the Charter Party had been fully worked out. It is clear from the pleadings and issue No.2, framed by the Arbitral Tribunal, that it was respondent’s consistent stand that since the hired vessel had not been re-delivered at the end of the time charter party, the vessel would be governed by the terms and conditions in the Charter Party dated 6th May, 1997. However, the Arbitral Tribunal answered the said issue against the respondent. It appears to us that even the question in regard to the effect and consequences of non-delivery of the vessel in terms of the Clause 4.1 and 23 would by itself be a dispute arising under the said “Charter Party”. With respect, the learned Arbitral Tribunal overlooked this aspect of the matter. 23. We are, therefore, of the opinion that though performance of the Charter Party agreement dated 6th May, 1997 may have come to an end on 31st August, 1998 but it was still in existence for some purposes, viz. the effect of vessel’s non re-delivery as per the prescribed mechanism and its continued use beyond the stipulated time and, thus, the arbitration clause in the said Charter Party operated in respect of these and other allied purposes. Therefore, the factual scenario in the instant case leads to an inescapable conclusion that notwithstanding the expiry of the period fixed in the time charter party dated 6th May, 1997, the said charter party did not get extinguished, inter alia, for the purpose of determination of the disputes arising thereunder and the arbitration clause contained therein could be invoked by the respondent.24. In view of the foregoing discussion, we do not find any infirmity in the view taken by the High Court that Charter Party dated 6th May, 1997 had not come to an end by efflux of time and it got extended by the conduct of the parties, warranting interference. 25. Having come to the conclusion that an arbitration agreement existed between the parties, the question which remains to be considered is whether the disputes between the parties should be referred to the same Arbitral Tribunal which had come to the conclusion that in the absence of any arbitration agreement it did not have jurisdiction to entertain and try the claims and counter claims. We feel that it would be proper and expedient to constitute a fresh Arbitral Tribunal. Accordingly, we constitute an Arbitral Tribunal consisting of Justice M. Jagannadha Rao (Presiding Arbitrator), Justice D.P. Wadhwa and Justice S.N. Variava, former Judges of this Court to adjudicate upon the claim/counter claim by the parties, subject to their consent and such terms and conditions as they may deem fit and proper. It goes without saying that the learned Tribunal shall deal with the matter uninfluenced by any observations in this order on the respective stands of the parties. 26. Resultantly, the | 0[ds]We are, therefore, of the opinion that though performance of the Charter Party agreement dated 6th May, 1997 may have come to an end on 31st August, 1998 but it was still in existence for some purposes, viz. the effect ofnon re-delivery as per the prescribed mechanism and its continued use beyond the stipulated time and, thus, the arbitration clause in the said Charter Party operated in respect of these and other allied purposes. Therefore, the factual scenario in the instant case leads to an inescapable conclusion that notwithstanding the expiry of the period fixed in the time charter party dated 6th May, 1997, the said charter party did not get extinguished, inter alia, for the purpose of determination of the disputes arising thereunder and the arbitration clause contained therein could be invoked by the respondent.In view of the foregoing discussion, we do not find any infirmity in the view taken by the High Court that Charter Party dated 6th May, 1997 had not come to an end by efflux of time and it got extended by the conduct of the parties, warranting interference. | 0 | 4,897 | 206 | ### Instruction:
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the charterers and the vessel owners. Admittedly, no such agreement was signed between the parties. Indubitably, there was no further exchange of correspondence between the parties - during the year. Nevertheless, the appellant continued to use the vessel on hire with them under the time charter dated 6th May, 1997. The conduct of the parties, as evidenced in the said correspondence and, in particular appellant’s silence on respondent’s letters dated 5th November, 1998 and 4th January, 1999, coupled with the fact that they continued to use the vessel, manifestly goes to show that except for the charter rate, there was no other dispute between the parties. They accepted the stand of the respondent sub silentio and thus, continued to bind themselves by other terms and conditions contained in the Charter Party dated 6th May, 1997, which obviously included the arbitration clause. 21. We may examine the issue from another angle, based on respondent’s stand that charter party dated 6th May, 1997 continues to be in vogue till the chartered vessel is re-delivered. In this context, it would be appropriate to refer to Clauses 4 and 23 of the Charter Party dated 6th May, 1997. These are in the following terms: “4. Delivery & Redelivery4.1 The vessel shall continue to be on charter to charterers in direct continuation from 2348 hrs. 22.09.1996 to 30.06.1998. The vessel shall be re-delivered by charterers to owners on dropping last outward pilot at any port on west coast of India at charterers option. Charterers to give owners 15 days notice to probable port of re-delivery.4.2 Charterers to load last three cargoes clean and re-deliver the vessel in clean condition.23. Final VoyageShould the vessel be on her voyage towards the port of redelivery at the time of payment of hire is due, payment of hire shall be made for such length of time as Owners and Charterers may agree upon as being estimated time necessary to complete the voyage, less any disbursements made or expected to be made or expenses incurred or expected to be incurred by Charterers for owners account and less the estimated amount of bunker fuel remaining at the termination of the voyage and when the vessel is redelivered any overpayment shall be refunded by the owners or underpayment paid by Charterers. Notwithstanding the provisions of clause 4 hereof should the vessel be upon voyage at the expiry of the period of this charter, Charterers shall have the use of vessel at the same rate and conditions for such extended time as may be necessary for the completion of the round voyage on which she is engaged and her return to a port of redelivery as provided by the Charter.” 22. On a conjoint reading of the said clauses, it is plain that the appellant was under an obligation to re-deliver the vessel as per the procedure contemplated in the afore-noted clauses. Indisputably, the vessel in question had not been re-delivered at least during the relevant period and the appellant continued to use the vessel beyond 31st August, 1998. Having failed to re-deliver the vessel in terms of Clause 4.1 of the Charter Party, the appellant cannot plead that the Charter Party had been fully worked out. It is clear from the pleadings and issue No.2, framed by the Arbitral Tribunal, that it was respondent’s consistent stand that since the hired vessel had not been re-delivered at the end of the time charter party, the vessel would be governed by the terms and conditions in the Charter Party dated 6th May, 1997. However, the Arbitral Tribunal answered the said issue against the respondent. It appears to us that even the question in regard to the effect and consequences of non-delivery of the vessel in terms of the Clause 4.1 and 23 would by itself be a dispute arising under the said “Charter Party”. With respect, the learned Arbitral Tribunal overlooked this aspect of the matter. 23. We are, therefore, of the opinion that though performance of the Charter Party agreement dated 6th May, 1997 may have come to an end on 31st August, 1998 but it was still in existence for some purposes, viz. the effect of vessel’s non re-delivery as per the prescribed mechanism and its continued use beyond the stipulated time and, thus, the arbitration clause in the said Charter Party operated in respect of these and other allied purposes. Therefore, the factual scenario in the instant case leads to an inescapable conclusion that notwithstanding the expiry of the period fixed in the time charter party dated 6th May, 1997, the said charter party did not get extinguished, inter alia, for the purpose of determination of the disputes arising thereunder and the arbitration clause contained therein could be invoked by the respondent.24. In view of the foregoing discussion, we do not find any infirmity in the view taken by the High Court that Charter Party dated 6th May, 1997 had not come to an end by efflux of time and it got extended by the conduct of the parties, warranting interference. 25. Having come to the conclusion that an arbitration agreement existed between the parties, the question which remains to be considered is whether the disputes between the parties should be referred to the same Arbitral Tribunal which had come to the conclusion that in the absence of any arbitration agreement it did not have jurisdiction to entertain and try the claims and counter claims. We feel that it would be proper and expedient to constitute a fresh Arbitral Tribunal. Accordingly, we constitute an Arbitral Tribunal consisting of Justice M. Jagannadha Rao (Presiding Arbitrator), Justice D.P. Wadhwa and Justice S.N. Variava, former Judges of this Court to adjudicate upon the claim/counter claim by the parties, subject to their consent and such terms and conditions as they may deem fit and proper. It goes without saying that the learned Tribunal shall deal with the matter uninfluenced by any observations in this order on the respective stands of the parties. 26. Resultantly, the
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We are, therefore, of the opinion that though performance of the Charter Party agreement dated 6th May, 1997 may have come to an end on 31st August, 1998 but it was still in existence for some purposes, viz. the effect ofnon re-delivery as per the prescribed mechanism and its continued use beyond the stipulated time and, thus, the arbitration clause in the said Charter Party operated in respect of these and other allied purposes. Therefore, the factual scenario in the instant case leads to an inescapable conclusion that notwithstanding the expiry of the period fixed in the time charter party dated 6th May, 1997, the said charter party did not get extinguished, inter alia, for the purpose of determination of the disputes arising thereunder and the arbitration clause contained therein could be invoked by the respondent.In view of the foregoing discussion, we do not find any infirmity in the view taken by the High Court that Charter Party dated 6th May, 1997 had not come to an end by efflux of time and it got extended by the conduct of the parties, warranting interference.
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Sooraram Pratap Reddy Vs. Distt. Collector, Ranga Reddy Dist | a decision ultimately. 164. We may, however, recall Daulat Singh once again at this state. There, referring to all leading cases and dealing with the ambit and scope of judicial review on the satisfaction by the State Government on ‘public purpose, this Court stated; "Public purpose is bound to vary with times and prevailing conditions in the community or locality and, therefore, the legislature has left it to the State (Government) to decide what is public purpose and also to declare the need of a given land for the purpose. The legislature has left the discretion to the Government regarding public purpose. The Government has the sole and absolute discretion in the matter". (emphasis supplied) 165. It was contended that the italicized portion quoted above (The Government has the sole and absolute discretion in the matter) is not in consonance with settled legal position or in accord with earlier decisions of this Court including decisions rendered by various Constitution Benches. We have already referred to R.S. Nanji wherein before more than half a century, Constitution Bench of this Court held that prima facie, the Government is the best judge to decide public purpose but it is not the sole judge. That was the view of the Privy Council in Hamabai. Again, in Somawanti, the Constitution Bench held that in case of colourable exercise of power by the State Government or fraud on statute, the declaration under Section 6 is open to challenge, notwithstanding the ‘finality clause under sub-section (3) of the said section.166. We would have indeed considered the contention of the learned counsel for the appellants closely in the light of earlier decisions of this Court. We are, however, of the view that on the facts and in the circumstances of the present case, the Government was right in forming an opinion and reaching a satisfaction as to ‘public purpose and in initiating proceedings under Sections 4 and 6 and in invoking Part II of the Act. We, therefore, refrain from undertaking further exercise. In our considered opinion, it is not necessary for us to enter into larger question in view of ‘fact situation in the instant case. Conclusions 167. Applying the aforesaid principles to the case on hand, in our considered opinion, it cannot be said that the proceedings initiated by the State for acquisition of land under the Land Acquisition Act, 1894 are illegal, unlawful, unwarranted, mala fide, fraud on statute or have been taken in colourable exercise of power.168. As already adverted to earlier, the State of Andhra Pradesh in the background of ‘World Tourism Organization Report and ‘Vision 2020 Document took a policy decision for the development of the City of Hyderabad. For the said purpose, it decided to establish an Integrated Project which would make Hyderabad a major Business-cum-Leisure Tourism Infrastructure Centre for the State. The project is both structurally as well as financially integrated. It is to be implemented through Andhra Pradesh Infrastructure and Investment Corporation (APIIC) which has taken all steps to make Hyderabad a world-class business destination. APIIC is an instrumentality of State and works as ‘Nodal Agency developing the project which would facilitate socio-economic progress of the State by generating revenues, weeding out unemployment and bringing new avenues and opportunities for public at large. Development of infrastructure is legal and legitimate ‘public purpose for exercising power of eminent domain. Simply because a Company has been chosen for fulfillment of such public purpose does not mean that the larger public interest has been sacrificed, ignored or disregarded. It will also not make exercise of power bad, mala fide or for collateral purpose vitiating the proceedings.169. In our judgment, the respondents are right in submitting that in case of integrated and indivisible project, the project has to be taken as a whole and must be judged whether it is in the larger public interest. It cannot be split into different components and to consider whether each and every component will serve public good. A holistic approach has to be adopted in such matters. If the project taken as a whole is an attempt in the direction of bringing foreign exchange, generating employment opportunities and securing economic benefits to the State and the public at large, it will serve public purpose.170. It is clearly established in this case that the Infrastructure Development Project conceived by the State and executed under the auspices of its instrumentality (APIIC) is one covered by the Act. The Joint Venture Mechanism for implementing the policy, executing the project and achieving lawful public purpose for realizing the goal of larger public good would neither destroy the object nor vitiate the exercise of power of public purpose for development of infrastructure. The concept of joint venture to tap resources of private sector for infrastructural development for fulfillment of public purpose has been recognized in foreign countries as also in India in several decisions of this Court.171. The entire amount of compensation is to be paid by State agency (APIIC) which also works as nodal agency for execution of the project. It is primarily for the State to decide whether there exists public purpose or not. Undoubtedly, the decision of the State is not beyond judicial scrutiny. In appropriate cases, where such power is exercised mala fide or for collateral purposes or the purported action is de hors the Act, irrational or otherwise unreasonable or the so-called purpose is ‘no public purpose at all and fraud on statute is apparent, a writ-court can undoubtedly interfere. But except in such cases, the declaration of the Government is not subject to judicial review. In other words, a writ court, while exercising powers under Articles 32, 226 or 136 of the Constitution, cannot substitute its own judgment for the judgment of the Government as to what constitutes ‘public purpose.172. Taking the facts in their entirety, we are of the view that the action of the State in initiating acquisition proceedings for establishing and developing infrastructure project cannot be held contrary to law or objectionable. | 0[ds]APIIC was having 26% share while Emaar Properties is having 74% share capital. Joint Venture companies were incorporated with the Registrar of Companies, Andhra Pradesh, Hyderabad with registered office at Hyderabad for taking different components of integrated project. Several projects are about to be over. Some projects are going on and some are to be undertaken. Total cost according to APIIC excluding operating and financial course of the integrated project is more than Rs.550 crores. It was submitted that considering the project in its entirety, the High Court was wholly right and fully justified in dismissing the petition and not interfering with the land acquisition proceedings.According to Emaar, the City of Hyderabad was sought to be transformed intoDestination as envisaged by the Government and public and private sectors participation investment had been thought proper through Integrated Project under Industrial Policy of the StateThrough APIIC, the State undertook the Integrated Project for establishing Hyderabad into world class business destination and a leader in the knowledge sector. Such project would indeed develop the State which would be in the larger interest of general public. It would enhance the value of Hyderabad into aDestination for domestic as well as international travellers. It was, therefore, submitted that the land acquisition proceedings were in consonance with the law and no case has been made out for interference with such proceedings and the appeals are liable to be dismissed.It is thus clear that the land was proposed to be acquired for a public purpose, viz. for development of new projects by APIIC. It is also apparent that urgency clause under Section 17 of the Act was applied and inquiry under SectionThe acquisition was to enable the activities of APIIC, which was an instrumentality of State operating in the area of industrial infrastructure. The purposes of APIIC were demonstrably public purposes. It was also held that the claim of the petitioners as being small farmers was notas no agricultural operations were being pursued by them as asserted by the authorities in thewhich was not denied. The availability of alternative land as pleaded by the petitioners was also not correct since the lands available were not contiguous to the existing developed areas and hence could not be said to be ‘alternative.19. The Court, however, held that invocation of urgency clause under Section 17 of the Act and dispensing with enquiry as contemplated by Section5A of the Act wasnot legal. Section5A of the Actis a salutary provision which enables the persons whose land is proposed to be acquired to urge all grounds that may be available against the proposed acquisition at the enquiry. Unless real urgency is demonstrated, dispensing with the enquiry and invocation of urgency clause was irrational and arbitrary exercise of power by the State. By such process, an enquiry under Section5A of the Actcannot be jettisoned on jejune grounds of irrational and unsubstantiated urgency. Since no such urgency could be demonstrated by the State, the action to the extent of dispensing with the enquiry was held to be bad. The petition was, therefore, partly allowed directing the authorities to issue notice to the landowners under Section5A of the Actand to take further proceedings in accordance with law.Once the declaration under Section 6 has been made, it shall be conclusive evidence that the land is needed for a public purpose.31. Section 9 requires the Collector to issue notice to the person interested stating that the Government intends to take possession of the land, and that claims to compensation for all interests in such land may be made to him. It also enumerates particulars to be mentioned in the notice.32. Section 11 enjoins the Collector to proceed to enquire into the objections (if any) which any person interested had filed pursuant to the notice and the value of the land at the date of the publication of the notification under section 4(1), and to make an award. Section 11A prescribes period within which such award shall be made by the Collector. Section 12 declares award of Collector to be final subject to the provisions of the Act. Section 16 empowers Collector after he has made the award under section 11 to take possession of the land which shall thereupon vest absolutely in the Government, free from all encumbrances.The power of eminent domain does not depend for its existence on a specific grant. It is inherent and exists in every sovereign State without any recognition thereof in the Constitution or in any statute. It is founded on the law of necessity. The power is inalienable. No Legislature can bind itself or its successors not to exercise this power when public necessity demands it. Nor it can be abridged or restricted by agreement or contract.The Court noted the contention of the petitioners that `using eminent domain for economic development impermissibly blurs the boundary between public and private takings. It also conceded that quite simply, the governments pursuit of a public purpose might benefit individual private parties.The expression (‘public purpose) is of very wide amplitude. It is merely illustrative and not exhaustive. The inclusive definition does not restrict its ambit and scope. Really, the expression is incapable of precise and comprehensive definition. And it is neither desirable nor advisable to attempt to define it. It is used in a generic sense of including any purpose wherein even a fraction of the community may be interested or by which it may be benefited.On the facts of the case, it was held that a break down in the organization of the Corporation, leading to dislocation of the road transport system would create a chaotic condition to the detriment of the interest of the community. Providing living accommodation for its employees is a statutory activity of the Corporation and it is essential for the Corporation to provide such accommodation in order to ensure an efficient working of the road transport system and it must, therefore, be held to be ‘public purpose.It was also observed that ‘public purpose is bound to vary with the times and the prevailing conditions in a given locality and, therefore, it would not be a practical proposition even to attempt a comprehensive definition of it. It is because of this that the Legislature has left it to the Government to say what is a public purpose and also to declare the need of a given land for a public purpose.Negativing the contention and upholding the acquisition, the Court held that the expression ‘public purpose includes a public purpose in which greatest interest of the community as opposed to a particular interest of an individual is directly concerned. The concept is not static but changes with the passage of time. Power of eminent domain can, therefore, be exercised by the State in public interest.86. A ‘public purpose is thus wider than a ‘public necessity. Purpose is more pervasive than urgency. That which one sets before him to accomplish, an end, intention, aim, object, plan or project, is purpose. A need or necessity, on the other hand, is urgent, unavoidable, compulsive. "Public purpose should be liberally construed, not whittled down byIDA was to constitute a Special Infrastructure Promotion Authority (IPA) having quasi judicial functions, the Task Force was to undertake executive functions outlined in IDA. The intention behind the integrated project was to establish Hyderabad as a majortourism infrastructure asset for the State. It was also stated that in the background of ‘World Tourism Organisation Report on the State of Andhra Pradesh in 2000 and in the light of the ‘Vision 2000 Document prepared in mid 1990s highlighting the need for tourism as an important economic driver for the State, the State Government initiated a Project Development exercise infor an international standard convention center complex integrated with other components.It is, therefore, a settled proposition of law that in absence of illegality or violation of law, a Court of law will not interfere in policyto the counsel, since the acquisition is not in accordance with Part VII of the Act, the entire acquisition is vitiated being contrary to law. It is, therefore, liable to be quashed and setthe said procedure has been followed and hence it cannot be said that the acquisition was not in consonance with law. It was also submitted that in earlier proceedings, this contention had been expressly raised by the writ petitioners before the High Court. The learned Single Judge specifically negatived it holding that the land was needed for ‘public purpose. The said order was confirmed even by the Division Bench. Hence, so far as acquisition by the ‘State under Part II of the Act for public purpose is concerned, the earlier order has attained finality. The High Court held that the appropriate Government was not justified in invoking urgency clause under Section 17 of the Act and no urgency could demonstrably be shown to exist, the declaration as to urgency and dispensing with the inquiry under Section5A of the Actwas held unlawful. The State Government was, therefore, directed to follow procedure under Section5A of the Actby issuing notice to the land owners by inviting objections and affording opportunity of being heard to the persons interested in the land. The said exercise was thereafter undertaken by the authorities and final notification under Section 6 of the Act was issued which does not call for interference and the High Court was justified in dismissing theto Babu Barkya, this Court held that the conclusion arrived at by the High Court was ‘entirely correct, though the process of reasoning by which it had reached the conclusion was erroneous. The Court observed that the Act contemplates acquisition for (i) a public purpose, and (ii) for a Company; thus, conveying the idea that acquisition for a Company, is not for a public purpose. It was also observed that the purposes of public utility, referred to in Sections 40 and 41 of the Act were akin to public purpose. Hence, acquisition for a public purpose as also acquisition for a Company are governed by considerations of public utility. But the procedure for the two kinds of acquisitions is different and if it is for a Company, then acquisition has to be effected in accordance with the procedure laid down in Part VII.The Court, keeping in view the Land Acquisition (Amendment) Act, 1962 (Act 31 of 1962), held that clause (aa) of(1) of Section 40 as inserted by Act 31 of 1962 did not contravene Article 31 (2) or Article 19 (1) (f) of the Constitution. Accordingly the acquisition was held legal and valid.123. A special reference may be made to a decision of the Division Bench of the High Court of Gujarat in Motibhai Vithalbhai Patel & Anr. V. State of Gujarat & Anr., AIR 1961 Guj 93 . In Motibhai, land was sought to be acquired for a Company, namely, Sarabhai Chemicals for its expansion. It was contended that acquisition was not for public purpose under Section 4 of the Act and it was bad in law.124. Considering the relevant provisions of the Act as also leading cases on the point, the Court held that even if the acquisition of land is for a private concern whose sole aim is to make profit, the intended acquisition of land would materially help in saving foreign exchange in which the public is also vitally concerned in our economic system. It can, therefore, be said to be a public purpose and would not be bad.Considering various clauses in the Joint Venture Agreement, the Court held that the cumulative effect of all went to show that acquisition was for the public purpose of setting up technological park by Government of Karnataka through Karnataka Industrial Areas Development Board and was, therefore, valid.153. In our judgment, in deciding whether acquisition is for `public purpose or not, prima facie, Government is the best judge. Normally, in such matters, a writ Court will not interfere by substituting its judgment for the judgment of the Government.It was contended that the italicized portion quoted above (The Government has the sole and absolute discretion in the matter) is not in consonance with settled legal position or in accord with earlier decisions of this Court including decisions rendered by various Constitution Benches. We have already referred to R.S. Nanji wherein before more than half a century, Constitution Bench of this Court held that prima facie, the Government is the best judge to decide public purpose but it is not the sole judge. That was the view of the Privy Council in Hamabai. Again, in Somawanti, the Constitution Bench held that in case of colourable exercise of power by the State Government or fraud on statute, the declaration under Section 6 is open to challenge, notwithstanding the ‘finality clause under(3) of the said section.166. We would have indeed considered the contention of the learned counsel for the appellants closely in the light of earlier decisions of this Court. We are, however, of the view that on the facts and in the circumstances of the present case, the Government was right in forming an opinion and reaching a satisfaction as to ‘public purpose and in initiating proceedings under Sections 4 and 6 and in invoking Part II of the Act. We, therefore, refrain from undertaking further exercise. In our considered opinion, it is not necessary for us to enter into larger question in view of ‘fact situation in the instant case.Applying the aforesaid principles to the case on hand, in our considered opinion, it cannot be said that the proceedings initiated by the State for acquisition of land under the Land Acquisition Act, 1894 are illegal, unlawful, unwarranted, mala fide, fraud on statute or have been taken in colourable exercise of power.168. As already adverted to earlier, the State of Andhra Pradesh in the background of ‘World Tourism Organization Report and ‘Vision 2020 Document took a policy decision for the development of the City of Hyderabad. For the said purpose, it decided to establish an Integrated Project which would make Hyderabad a majorTourism Infrastructure Centre for the State. The project is both structurally as well as financially integrated. It is to be implemented through Andhra Pradesh Infrastructure and Investment Corporation (APIIC) which has taken all steps to make Hyderabad abusiness destination. APIIC is an instrumentality of State and works as ‘Nodal Agency developing the project which would facilitateprogress of the State by generating revenues, weeding out unemployment and bringing new avenues and opportunities for public at large. Development of infrastructure is legal and legitimate ‘public purpose for exercising power of eminent domain. Simply because a Company has been chosen for fulfillment of such public purpose does not mean that the larger public interest has been sacrificed, ignored or disregarded. It will also not make exercise of power bad, mala fide or for collateral purpose vitiating the proceedings.169. In our judgment, the respondents are right in submitting that in case of integrated and indivisible project, the project has to be taken as a whole and must be judged whether it is in the larger public interest. It cannot be split into different components and to consider whether each and every component will serve public good. A holistic approach has to be adopted in such matters. If the project taken as a whole is an attempt in the direction of bringing foreign exchange, generating employment opportunities and securing economic benefits to the State and the public at large, it will serve public purpose.170. It is clearly established in this case that the Infrastructure Development Project conceived by the State and executed under the auspices of its instrumentality (APIIC) is one covered by the Act. The Joint Venture Mechanism for implementing the policy, executing the project and achieving lawful public purpose for realizing the goal of larger public good would neither destroy the object nor vitiate the exercise of power of public purpose for development of infrastructure. The concept of joint venture to tap resources of private sector for infrastructural development for fulfillment of public purpose has been recognized in foreign countries as also in India in several decisions of this Court.171. The entire amount of compensation is to be paid by State agency (APIIC) which also works as nodal agency for execution of the project. It is primarily for the State to decide whether there exists public purpose or not. Undoubtedly, the decision of the State is not beyond judicial scrutiny. In appropriate cases, where such power is exercised mala fide or for collateral purposes or the purported action is de hors the Act, irrational or otherwise unreasonable or thepurpose is ‘no public purpose at all and fraud on statute is apparent, acan undoubtedly interfere. But except in such cases, the declaration of the Government is not subject to judicial review. In other words, a writ court, while exercising powers under Articles 32, 226 or 136 of the Constitution, cannot substitute its own judgment for the judgment of the Government as to what constitutes ‘public purpose.172. Taking the facts in their entirety, we are of the view that the action of the State in initiating acquisition proceedings for establishing and developing infrastructure project cannot be held contrary to law or objectionable. | 0 | 22,864 | 3,148 | ### Instruction:
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a decision ultimately. 164. We may, however, recall Daulat Singh once again at this state. There, referring to all leading cases and dealing with the ambit and scope of judicial review on the satisfaction by the State Government on ‘public purpose, this Court stated; "Public purpose is bound to vary with times and prevailing conditions in the community or locality and, therefore, the legislature has left it to the State (Government) to decide what is public purpose and also to declare the need of a given land for the purpose. The legislature has left the discretion to the Government regarding public purpose. The Government has the sole and absolute discretion in the matter". (emphasis supplied) 165. It was contended that the italicized portion quoted above (The Government has the sole and absolute discretion in the matter) is not in consonance with settled legal position or in accord with earlier decisions of this Court including decisions rendered by various Constitution Benches. We have already referred to R.S. Nanji wherein before more than half a century, Constitution Bench of this Court held that prima facie, the Government is the best judge to decide public purpose but it is not the sole judge. That was the view of the Privy Council in Hamabai. Again, in Somawanti, the Constitution Bench held that in case of colourable exercise of power by the State Government or fraud on statute, the declaration under Section 6 is open to challenge, notwithstanding the ‘finality clause under sub-section (3) of the said section.166. We would have indeed considered the contention of the learned counsel for the appellants closely in the light of earlier decisions of this Court. We are, however, of the view that on the facts and in the circumstances of the present case, the Government was right in forming an opinion and reaching a satisfaction as to ‘public purpose and in initiating proceedings under Sections 4 and 6 and in invoking Part II of the Act. We, therefore, refrain from undertaking further exercise. In our considered opinion, it is not necessary for us to enter into larger question in view of ‘fact situation in the instant case. Conclusions 167. Applying the aforesaid principles to the case on hand, in our considered opinion, it cannot be said that the proceedings initiated by the State for acquisition of land under the Land Acquisition Act, 1894 are illegal, unlawful, unwarranted, mala fide, fraud on statute or have been taken in colourable exercise of power.168. As already adverted to earlier, the State of Andhra Pradesh in the background of ‘World Tourism Organization Report and ‘Vision 2020 Document took a policy decision for the development of the City of Hyderabad. For the said purpose, it decided to establish an Integrated Project which would make Hyderabad a major Business-cum-Leisure Tourism Infrastructure Centre for the State. The project is both structurally as well as financially integrated. It is to be implemented through Andhra Pradesh Infrastructure and Investment Corporation (APIIC) which has taken all steps to make Hyderabad a world-class business destination. APIIC is an instrumentality of State and works as ‘Nodal Agency developing the project which would facilitate socio-economic progress of the State by generating revenues, weeding out unemployment and bringing new avenues and opportunities for public at large. Development of infrastructure is legal and legitimate ‘public purpose for exercising power of eminent domain. Simply because a Company has been chosen for fulfillment of such public purpose does not mean that the larger public interest has been sacrificed, ignored or disregarded. It will also not make exercise of power bad, mala fide or for collateral purpose vitiating the proceedings.169. In our judgment, the respondents are right in submitting that in case of integrated and indivisible project, the project has to be taken as a whole and must be judged whether it is in the larger public interest. It cannot be split into different components and to consider whether each and every component will serve public good. A holistic approach has to be adopted in such matters. If the project taken as a whole is an attempt in the direction of bringing foreign exchange, generating employment opportunities and securing economic benefits to the State and the public at large, it will serve public purpose.170. It is clearly established in this case that the Infrastructure Development Project conceived by the State and executed under the auspices of its instrumentality (APIIC) is one covered by the Act. The Joint Venture Mechanism for implementing the policy, executing the project and achieving lawful public purpose for realizing the goal of larger public good would neither destroy the object nor vitiate the exercise of power of public purpose for development of infrastructure. The concept of joint venture to tap resources of private sector for infrastructural development for fulfillment of public purpose has been recognized in foreign countries as also in India in several decisions of this Court.171. The entire amount of compensation is to be paid by State agency (APIIC) which also works as nodal agency for execution of the project. It is primarily for the State to decide whether there exists public purpose or not. Undoubtedly, the decision of the State is not beyond judicial scrutiny. In appropriate cases, where such power is exercised mala fide or for collateral purposes or the purported action is de hors the Act, irrational or otherwise unreasonable or the so-called purpose is ‘no public purpose at all and fraud on statute is apparent, a writ-court can undoubtedly interfere. But except in such cases, the declaration of the Government is not subject to judicial review. In other words, a writ court, while exercising powers under Articles 32, 226 or 136 of the Constitution, cannot substitute its own judgment for the judgment of the Government as to what constitutes ‘public purpose.172. Taking the facts in their entirety, we are of the view that the action of the State in initiating acquisition proceedings for establishing and developing infrastructure project cannot be held contrary to law or objectionable.
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concern whose sole aim is to make profit, the intended acquisition of land would materially help in saving foreign exchange in which the public is also vitally concerned in our economic system. It can, therefore, be said to be a public purpose and would not be bad.Considering various clauses in the Joint Venture Agreement, the Court held that the cumulative effect of all went to show that acquisition was for the public purpose of setting up technological park by Government of Karnataka through Karnataka Industrial Areas Development Board and was, therefore, valid.153. In our judgment, in deciding whether acquisition is for `public purpose or not, prima facie, Government is the best judge. Normally, in such matters, a writ Court will not interfere by substituting its judgment for the judgment of the Government.It was contended that the italicized portion quoted above (The Government has the sole and absolute discretion in the matter) is not in consonance with settled legal position or in accord with earlier decisions of this Court including decisions rendered by various Constitution Benches. We have already referred to R.S. Nanji wherein before more than half a century, Constitution Bench of this Court held that prima facie, the Government is the best judge to decide public purpose but it is not the sole judge. That was the view of the Privy Council in Hamabai. Again, in Somawanti, the Constitution Bench held that in case of colourable exercise of power by the State Government or fraud on statute, the declaration under Section 6 is open to challenge, notwithstanding the ‘finality clause under(3) of the said section.166. We would have indeed considered the contention of the learned counsel for the appellants closely in the light of earlier decisions of this Court. We are, however, of the view that on the facts and in the circumstances of the present case, the Government was right in forming an opinion and reaching a satisfaction as to ‘public purpose and in initiating proceedings under Sections 4 and 6 and in invoking Part II of the Act. We, therefore, refrain from undertaking further exercise. In our considered opinion, it is not necessary for us to enter into larger question in view of ‘fact situation in the instant case.Applying the aforesaid principles to the case on hand, in our considered opinion, it cannot be said that the proceedings initiated by the State for acquisition of land under the Land Acquisition Act, 1894 are illegal, unlawful, unwarranted, mala fide, fraud on statute or have been taken in colourable exercise of power.168. As already adverted to earlier, the State of Andhra Pradesh in the background of ‘World Tourism Organization Report and ‘Vision 2020 Document took a policy decision for the development of the City of Hyderabad. For the said purpose, it decided to establish an Integrated Project which would make Hyderabad a majorTourism Infrastructure Centre for the State. The project is both structurally as well as financially integrated. It is to be implemented through Andhra Pradesh Infrastructure and Investment Corporation (APIIC) which has taken all steps to make Hyderabad abusiness destination. APIIC is an instrumentality of State and works as ‘Nodal Agency developing the project which would facilitateprogress of the State by generating revenues, weeding out unemployment and bringing new avenues and opportunities for public at large. Development of infrastructure is legal and legitimate ‘public purpose for exercising power of eminent domain. Simply because a Company has been chosen for fulfillment of such public purpose does not mean that the larger public interest has been sacrificed, ignored or disregarded. It will also not make exercise of power bad, mala fide or for collateral purpose vitiating the proceedings.169. In our judgment, the respondents are right in submitting that in case of integrated and indivisible project, the project has to be taken as a whole and must be judged whether it is in the larger public interest. It cannot be split into different components and to consider whether each and every component will serve public good. A holistic approach has to be adopted in such matters. If the project taken as a whole is an attempt in the direction of bringing foreign exchange, generating employment opportunities and securing economic benefits to the State and the public at large, it will serve public purpose.170. It is clearly established in this case that the Infrastructure Development Project conceived by the State and executed under the auspices of its instrumentality (APIIC) is one covered by the Act. The Joint Venture Mechanism for implementing the policy, executing the project and achieving lawful public purpose for realizing the goal of larger public good would neither destroy the object nor vitiate the exercise of power of public purpose for development of infrastructure. The concept of joint venture to tap resources of private sector for infrastructural development for fulfillment of public purpose has been recognized in foreign countries as also in India in several decisions of this Court.171. The entire amount of compensation is to be paid by State agency (APIIC) which also works as nodal agency for execution of the project. It is primarily for the State to decide whether there exists public purpose or not. Undoubtedly, the decision of the State is not beyond judicial scrutiny. In appropriate cases, where such power is exercised mala fide or for collateral purposes or the purported action is de hors the Act, irrational or otherwise unreasonable or thepurpose is ‘no public purpose at all and fraud on statute is apparent, acan undoubtedly interfere. But except in such cases, the declaration of the Government is not subject to judicial review. In other words, a writ court, while exercising powers under Articles 32, 226 or 136 of the Constitution, cannot substitute its own judgment for the judgment of the Government as to what constitutes ‘public purpose.172. Taking the facts in their entirety, we are of the view that the action of the State in initiating acquisition proceedings for establishing and developing infrastructure project cannot be held contrary to law or objectionable.
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THE ORIENTAL INSURANCE CO. LTD Vs. DICITEX FURNISHING LTD | the other side contests the correctness thereof, the Chief Justice/his designate must look into this aspect to find out at least, prima facie, whether or not the dispute is bona fide and genuine. Where the dispute raised by the claimant with regard to validity of the discharge voucher or no-claim certificate or settlement agreement, prima facie, appears to be lacking in credibility, there may not be necessity to refer the dispute for arbitration at all.?Likewise, in Genus Power (supra), the court cautioned that a ?bald plea? of coercion, without any supporting material is insufficient for a court to hold that the accord/satisfaction or no dues certificate was involuntarily given. 19. A close look at the facts in the present case would show that though the pleadings in the initial application under Section 11(6) are weak, nevertheless, the materials on the record, in the form of copies of the inter se correspondence of the parties – which span over 2 years, clearly show that Dicitex kept repeatedly stating that it was facing financial crisis; it referred to credits obtained for its business and the urgency to pay back the bank. It is a matter of record that the Surveyor?s report, dated 14.08.2014, recommended payment of 12,93,26,704.98/- ? to Dicitex. Equally, it is a matter of record that the appellant referred the matter to a chartered accountant?s firm, to verify certain inventory and sales figures. It went by the report of the latter, who stated that the estimate of loss could not be more than 7,16,30,148/-. This is what ? was offered to Dicitex, by May, 2014. Dicitex?s application under Section 11(6) is replete with references to the number of letters written to the appellant, seeking release of amounts; it also averred to inability to pay its income tax dues, the pressure from bankers (in support of which, copies of letters of bankers were produced along with the application). 20. The averments by Dicitex, regarding the circumstances which led it to execute the no objection discharge voucher, are reproduced below:?31. The Respondents did not pay anything to the Petitioner after the submission of its letter, dated 31 st May, 2014 and the submission of its letter, dated 31 st May, 2014 and therefore several telephonic calls were made on behalf of the Petitioner, to the Respondent?s Regional Office at Mumbai in an effort to persuade the Respondents to increase the settlement amount so as to include the differential amount of about Rs. 7 crores. The Petitioner also specifically requested the Respondents not to, in any event, insist on the execution of the Discharge Voucher strictly as prescribed as a condition precedent for the payment of any part of the balance amount of claim. 32. Since, on the one hand, the Respondents did not show any inclination to relent on any count and instead continued to insist continued to insist that any further payment would be made to the Petitioner if and only if the Discharge Voucher was executed exactly at the time and in the form and manner as required by the Respondents as well as the letter dated 31 st May, 2014 withdrawn and, on the other hand, the Petitioner was in urgent need of funds to meet its mounting liabilities the Petitioner was forced to withdraw its earlier letter dated 31 st May, 2014 and coerced into executing the Discharge Voucher exactly as dictated by the Respondents. Accordingly, the Petitioner wrote a letter dated 6 th June, 2014 to the Respondent No. 2 stating therein that it was withdrawing its letter dated 31 st May, 2-14 and also enclosing the duly executed discharge Voucher. The Petitioner also requested that the claim amount be paid over to it, immediately.?The averments in the application, later are that the appellant paid the amount. Dicitex, nevertheless later, by three letters questioned the basis of reduction of the amount of claim. It later alleged that it wrote a letter ?dated 14 th July, 2014 to the respondents stating therein, inter alia, that since they were forced to accept the offered amount and that since there was a dispute on the quantum of claim settlement paid to the Petitioner, the Petitioner was invoking arbitration proceedings under Clause 13 of the said Policy to recover the differential amount.? 21. An overall reading of Dicitex?s application (under Section 11(6)) clearly shows that its grievance with respect to the involuntary nature of the discharge voucher was articulated. It cannot be disputed, that several letters – spanning over two years- stating that it was facing financial crisis on account of the delay in settling the claim, were addressed to the appellant. This court is conscious of the fact that an application under Section 11(6) is in the form of a pleading which merely seeks an order of the court, for appointment of an arbitrator. It cannot be conclusive of the pleas or contentions that the claimant or the concerned party can take, in the arbitral proceedings. At this stage, therefore, the court- which is required to ensure that an arbitrable dispute exists, has to be prima facie convinced about the genuineness or credibility of the plea of coercion; it cannot be too particular about the nature of the plea, which necessarily has to be made and established in the substantive (read: arbitration) proceeding. If the court were to take a contrary approach and minutely examine the plea and judge its credibility or reasonableness, there would be a danger of its denying a forum to the applicant altogether, because rejection of the application would render the finding (about the finality of the discharge and its effect as satisfaction) final, thus, precluding the applicant of its right event to approach a civil court. There are decisions of this court (Associated Construction v Pawanhans Helicopters Ltd. (2008) 16 SCC 128 and Boghara Polyfab (supra) upheld the concept of economic duress. Having regard to the facts and circumstances, this court is of the opinion that the reasoning in the impugned judgment cannot be faulted. | 0[ds]19. A close look at the facts in the present case would show that though the pleadings in the initial application under Section 11(6) are weak, nevertheless, the materials on the record, in the form of copies of the inter se correspondence of the parties – which span over 2 years, clearly show that Dicitex kept repeatedly stating that it was facing financial crisis; it referred to credits obtained for its business and the urgency to pay back the bank. It is a matter of record that the Surveyor?s report, dated 14.08.2014, recommended payment of 12,93,26,704.98/- ? to Dicitex. Equally, it is a matter of record that the appellant referred the matter to a chartered accountant?s firm, to verify certain inventory and sales figures. It went by the report of the latter, who stated that the estimate of loss could not be more than 7,16,30,148/-. This is what ? was offered to Dicitex, by May, 2014. Dicitex?s application under Section 11(6) is replete with references to the number of letters written to the appellant, seeking release of amounts; it also averred to inability to pay its income tax dues, the pressure from bankers (in support of which, copies of letters of bankers were produced along with the application).An overall reading of Dicitex?s application (under Section 11(6)) clearly shows that its grievance with respect to the involuntary nature of the discharge voucher was articulated. It cannot be disputed, that several letters – spanning over two years- stating that it was facing financial crisis on account of the delay in settling the claim, were addressed to the appellant. This court is conscious of the fact that an application under Section 11(6) is in the form of a pleading which merely seeks an order of the court, for appointment of an arbitrator. It cannot be conclusive of the pleas or contentions that the claimant or the concerned party can take, in the arbitral proceedings. At this stage, therefore, the court- which is required to ensure that an arbitrable dispute exists, has to be prima facie convinced about the genuineness or credibility of the plea of coercion; it cannot be too particular about the nature of the plea, which necessarily has to be made and established in the substantive (read: arbitration) proceeding. If the court were to take a contrary approach and minutely examine the plea and judge its credibility or reasonableness, there would be a danger of its denying a forum to the applicant altogether, because rejection of the application would render the finding (about the finality of the discharge and its effect as satisfaction) final, thus, precluding the applicant of its right event to approach a civil court. There are decisions of this court (Associated Construction v Pawanhans Helicopters Ltd. (2008) 16 SCC 128 and Boghara Polyfab (supra) upheld the concept of economic duress. Having regard to the facts and circumstances, this court is of the opinion that the reasoning in the impugned judgment cannot be faulted. | 0 | 9,098 | 582 | ### Instruction:
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the other side contests the correctness thereof, the Chief Justice/his designate must look into this aspect to find out at least, prima facie, whether or not the dispute is bona fide and genuine. Where the dispute raised by the claimant with regard to validity of the discharge voucher or no-claim certificate or settlement agreement, prima facie, appears to be lacking in credibility, there may not be necessity to refer the dispute for arbitration at all.?Likewise, in Genus Power (supra), the court cautioned that a ?bald plea? of coercion, without any supporting material is insufficient for a court to hold that the accord/satisfaction or no dues certificate was involuntarily given. 19. A close look at the facts in the present case would show that though the pleadings in the initial application under Section 11(6) are weak, nevertheless, the materials on the record, in the form of copies of the inter se correspondence of the parties – which span over 2 years, clearly show that Dicitex kept repeatedly stating that it was facing financial crisis; it referred to credits obtained for its business and the urgency to pay back the bank. It is a matter of record that the Surveyor?s report, dated 14.08.2014, recommended payment of 12,93,26,704.98/- ? to Dicitex. Equally, it is a matter of record that the appellant referred the matter to a chartered accountant?s firm, to verify certain inventory and sales figures. It went by the report of the latter, who stated that the estimate of loss could not be more than 7,16,30,148/-. This is what ? was offered to Dicitex, by May, 2014. Dicitex?s application under Section 11(6) is replete with references to the number of letters written to the appellant, seeking release of amounts; it also averred to inability to pay its income tax dues, the pressure from bankers (in support of which, copies of letters of bankers were produced along with the application). 20. The averments by Dicitex, regarding the circumstances which led it to execute the no objection discharge voucher, are reproduced below:?31. The Respondents did not pay anything to the Petitioner after the submission of its letter, dated 31 st May, 2014 and the submission of its letter, dated 31 st May, 2014 and therefore several telephonic calls were made on behalf of the Petitioner, to the Respondent?s Regional Office at Mumbai in an effort to persuade the Respondents to increase the settlement amount so as to include the differential amount of about Rs. 7 crores. The Petitioner also specifically requested the Respondents not to, in any event, insist on the execution of the Discharge Voucher strictly as prescribed as a condition precedent for the payment of any part of the balance amount of claim. 32. Since, on the one hand, the Respondents did not show any inclination to relent on any count and instead continued to insist continued to insist that any further payment would be made to the Petitioner if and only if the Discharge Voucher was executed exactly at the time and in the form and manner as required by the Respondents as well as the letter dated 31 st May, 2014 withdrawn and, on the other hand, the Petitioner was in urgent need of funds to meet its mounting liabilities the Petitioner was forced to withdraw its earlier letter dated 31 st May, 2014 and coerced into executing the Discharge Voucher exactly as dictated by the Respondents. Accordingly, the Petitioner wrote a letter dated 6 th June, 2014 to the Respondent No. 2 stating therein that it was withdrawing its letter dated 31 st May, 2-14 and also enclosing the duly executed discharge Voucher. The Petitioner also requested that the claim amount be paid over to it, immediately.?The averments in the application, later are that the appellant paid the amount. Dicitex, nevertheless later, by three letters questioned the basis of reduction of the amount of claim. It later alleged that it wrote a letter ?dated 14 th July, 2014 to the respondents stating therein, inter alia, that since they were forced to accept the offered amount and that since there was a dispute on the quantum of claim settlement paid to the Petitioner, the Petitioner was invoking arbitration proceedings under Clause 13 of the said Policy to recover the differential amount.? 21. An overall reading of Dicitex?s application (under Section 11(6)) clearly shows that its grievance with respect to the involuntary nature of the discharge voucher was articulated. It cannot be disputed, that several letters – spanning over two years- stating that it was facing financial crisis on account of the delay in settling the claim, were addressed to the appellant. This court is conscious of the fact that an application under Section 11(6) is in the form of a pleading which merely seeks an order of the court, for appointment of an arbitrator. It cannot be conclusive of the pleas or contentions that the claimant or the concerned party can take, in the arbitral proceedings. At this stage, therefore, the court- which is required to ensure that an arbitrable dispute exists, has to be prima facie convinced about the genuineness or credibility of the plea of coercion; it cannot be too particular about the nature of the plea, which necessarily has to be made and established in the substantive (read: arbitration) proceeding. If the court were to take a contrary approach and minutely examine the plea and judge its credibility or reasonableness, there would be a danger of its denying a forum to the applicant altogether, because rejection of the application would render the finding (about the finality of the discharge and its effect as satisfaction) final, thus, precluding the applicant of its right event to approach a civil court. There are decisions of this court (Associated Construction v Pawanhans Helicopters Ltd. (2008) 16 SCC 128 and Boghara Polyfab (supra) upheld the concept of economic duress. Having regard to the facts and circumstances, this court is of the opinion that the reasoning in the impugned judgment cannot be faulted.
### Response:
0
### Explanation:
19. A close look at the facts in the present case would show that though the pleadings in the initial application under Section 11(6) are weak, nevertheless, the materials on the record, in the form of copies of the inter se correspondence of the parties – which span over 2 years, clearly show that Dicitex kept repeatedly stating that it was facing financial crisis; it referred to credits obtained for its business and the urgency to pay back the bank. It is a matter of record that the Surveyor?s report, dated 14.08.2014, recommended payment of 12,93,26,704.98/- ? to Dicitex. Equally, it is a matter of record that the appellant referred the matter to a chartered accountant?s firm, to verify certain inventory and sales figures. It went by the report of the latter, who stated that the estimate of loss could not be more than 7,16,30,148/-. This is what ? was offered to Dicitex, by May, 2014. Dicitex?s application under Section 11(6) is replete with references to the number of letters written to the appellant, seeking release of amounts; it also averred to inability to pay its income tax dues, the pressure from bankers (in support of which, copies of letters of bankers were produced along with the application).An overall reading of Dicitex?s application (under Section 11(6)) clearly shows that its grievance with respect to the involuntary nature of the discharge voucher was articulated. It cannot be disputed, that several letters – spanning over two years- stating that it was facing financial crisis on account of the delay in settling the claim, were addressed to the appellant. This court is conscious of the fact that an application under Section 11(6) is in the form of a pleading which merely seeks an order of the court, for appointment of an arbitrator. It cannot be conclusive of the pleas or contentions that the claimant or the concerned party can take, in the arbitral proceedings. At this stage, therefore, the court- which is required to ensure that an arbitrable dispute exists, has to be prima facie convinced about the genuineness or credibility of the plea of coercion; it cannot be too particular about the nature of the plea, which necessarily has to be made and established in the substantive (read: arbitration) proceeding. If the court were to take a contrary approach and minutely examine the plea and judge its credibility or reasonableness, there would be a danger of its denying a forum to the applicant altogether, because rejection of the application would render the finding (about the finality of the discharge and its effect as satisfaction) final, thus, precluding the applicant of its right event to approach a civil court. There are decisions of this court (Associated Construction v Pawanhans Helicopters Ltd. (2008) 16 SCC 128 and Boghara Polyfab (supra) upheld the concept of economic duress. Having regard to the facts and circumstances, this court is of the opinion that the reasoning in the impugned judgment cannot be faulted.
|
Kundur Rudrappa Vs. The Mysore Revenue Appellate Tribunal & Ors | Goswami, J.1. This appeal by special leave is directed against the judgment of the Mysore High Court (now High Court of Karnataka). of Feb 9, 1973, rejecting the appellants writ petition under Article 226 of the Constitution by which the orders of the State Transport Appellate Tribunal and the Mysore Revenue Appellate Tribunal had been challenged.2. Briefly the facts are as follows:The appellant was granted a stage carriage permit under Section 48 of the Motor Vehicles Act, 1939 (briefly the Act) for the route Devanagere to Shimoga via Honnali by the Regional Transport Authority, Shimoga, by its order dated May 3/4, 1963. Some of the respondents preferred appeals against the said order to the State Transport Appellate Tribunal and obtained stay of the order. The appeals were, however, dismissed on September 27, 1963.Again, some of the respondents preferred further appeals to the Mysore Revenue Appellate Tribunal against the order of the State Transport Appellate Tribunal. This time also the appeals met with the same fate and were dismissed on 27-21967. It appears, however, that no order of stay was granted by the Mysore Revenue Appellate Tribunal.3. On April 25, 1967, the Secretary to the Regional Transport Authority, Shimoga, called upon the appellant to produce the relevant documents and the certificate of registration for making necessary entry in the permit. The appellant produced the same on April 26, 1967, and the permit was issued on the same day. Again the order of the issue of the permit respondents 4 to 13 preferred appeals to the State Transport Appellate Tribunal on the ground that the Secretary to the Regional Transport Authority, Shimoga, had no jurisdiction to issue a permit under R. 119 of the Mysore Motor Vehicles Rules, 1963 (briefly the Rules) after a lapse of such a long time from the date of the grant of the permit. It was contended that the issue of the permit was made beyond the prescribed period of limitation under Rule 119. It may be mentioned that at the time of the grant of the permit the Mysore Motor Vehicles Rules, 1945 (old Rules) were in force and Rule 151 of the old Rules was replaced by Rule 119 with effect from July 1, 1963. It was contended by the appellant before the appellate authorities that there was no period of limitation under R. 151 of the old Rules, which was applicable to his case, for the issue of a permit. The appeals of the respondents were allowed by the State Transport Appellate Tribunal by majority on January 29, 1969. The District Judge Member, however, dissented. An appeal filed by the appellant to the Revenue Appellate Tribunal against the order of the State Transport Appellate Tribunal was dismissed which led to the unsuccessful writ application in the High Court and hence this appeal.4. The first point that arises for consideration is whether any appeal lay under Section 64 of the Act to the State Transport Appellate Tribunal against the issue of a permit in pursuance of an earlier resolution of the Regional Transport Authority granting the permit. It is only necessary to read Section 64 (1) (a) which is material for the purpose of this appeal:64 (1) (a): "Any person aggrieved by the refusal of the State or a Regional Transport Authority to grant a permit or by any condition attached to a permit granted to him...... may within the prescribed time and in the prescribed manner, appeal to the State Transport Appellate Tribunal constituted under sub-section (2), who shall, after giving such person and the original authority an opportunity of being heard, give a decision thereon which shall be final".We are not required to consider the other clauses of Section 64 (1) which are admittedly not relevant. Sec. 64 has to be read with Rule 178 of the Rules which prescribes the procedure for appeal to the various authorities.5. Appeal is a creature of the statute. There is no dispute that Section 64 of the Act is the only section creating rights of appeal against the grant of permit and other matters with which we are not concerned here. There is no appeal provided for under Section 64 against an order issuing a permit in pursuance of the order granting the permit. Issuance of the permit is only ministerial act necessarily following the grant of the permit. The appeals before the Transport Appellate Tribunal and the further appeal to the Mysore Revenue Appellate Tribunal are, therefore, not competent under Section 64 of the Act and both the Tribunals had no jurisdiction to entertain the appeals and to interfere with the order of the Regional Transport Authority granting the permit which had already been affirmed in appeal by the State Transport Appellate Tribunal and further in second appeal by the Mysore Revenue Appellate Tribunal. There was, therefore, a clear error of jurisdiction on the part of both the Tribunals in interfering with the grant of the permit of the appellant. The High Court was, therefore, not right in dismissing the writ application of the appellant, which ought to have been allowed.6. Although arguments were addressed by counsel with regard to old Rule 151 and Rule 119 of the Mysore Motor Vehicles Rules, 1963, we do not feel called upon to pronounce upon the legal effect of these rules in this appeal. | 1[ds]There is no dispute that Section 64 of the Act is the only section creating rights of appeal against the grant of permit and other matters with which we are not concerned here. There is no appeal provided for under Section 64 against an order issuing a permit in pursuance of the order granting the permit. Issuance of the permit is only ministerial act necessarily following the grant of the permit. The appeals before the Transport Appellate Tribunal and the further appeal to the Mysore Revenue Appellate Tribunal are, therefore, not competent under Section 64 of the Act and both the Tribunals had no jurisdiction to entertain the appeals and to interfere with the order of the Regional Transport Authority granting the permit which had already been affirmed in appeal by the State Transport Appellate Tribunal and further in second appeal by the Mysore Revenue Appellate Tribunal. There was, therefore, a clear error of jurisdiction on the part of both the Tribunals in interfering with the grant of the permit of the appellant. The High Court was, therefore, not right in dismissing the writ application of the appellant, which ought to have been allowed.6. Although arguments were addressed by counsel with regard to old Rule 151 and Rule 119 of the Mysore Motor Vehicles Rules, 1963, we do not feel called upon to pronounce upon the legal effect of these rules in this appeal. | 1 | 984 | 254 | ### Instruction:
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Goswami, J.1. This appeal by special leave is directed against the judgment of the Mysore High Court (now High Court of Karnataka). of Feb 9, 1973, rejecting the appellants writ petition under Article 226 of the Constitution by which the orders of the State Transport Appellate Tribunal and the Mysore Revenue Appellate Tribunal had been challenged.2. Briefly the facts are as follows:The appellant was granted a stage carriage permit under Section 48 of the Motor Vehicles Act, 1939 (briefly the Act) for the route Devanagere to Shimoga via Honnali by the Regional Transport Authority, Shimoga, by its order dated May 3/4, 1963. Some of the respondents preferred appeals against the said order to the State Transport Appellate Tribunal and obtained stay of the order. The appeals were, however, dismissed on September 27, 1963.Again, some of the respondents preferred further appeals to the Mysore Revenue Appellate Tribunal against the order of the State Transport Appellate Tribunal. This time also the appeals met with the same fate and were dismissed on 27-21967. It appears, however, that no order of stay was granted by the Mysore Revenue Appellate Tribunal.3. On April 25, 1967, the Secretary to the Regional Transport Authority, Shimoga, called upon the appellant to produce the relevant documents and the certificate of registration for making necessary entry in the permit. The appellant produced the same on April 26, 1967, and the permit was issued on the same day. Again the order of the issue of the permit respondents 4 to 13 preferred appeals to the State Transport Appellate Tribunal on the ground that the Secretary to the Regional Transport Authority, Shimoga, had no jurisdiction to issue a permit under R. 119 of the Mysore Motor Vehicles Rules, 1963 (briefly the Rules) after a lapse of such a long time from the date of the grant of the permit. It was contended that the issue of the permit was made beyond the prescribed period of limitation under Rule 119. It may be mentioned that at the time of the grant of the permit the Mysore Motor Vehicles Rules, 1945 (old Rules) were in force and Rule 151 of the old Rules was replaced by Rule 119 with effect from July 1, 1963. It was contended by the appellant before the appellate authorities that there was no period of limitation under R. 151 of the old Rules, which was applicable to his case, for the issue of a permit. The appeals of the respondents were allowed by the State Transport Appellate Tribunal by majority on January 29, 1969. The District Judge Member, however, dissented. An appeal filed by the appellant to the Revenue Appellate Tribunal against the order of the State Transport Appellate Tribunal was dismissed which led to the unsuccessful writ application in the High Court and hence this appeal.4. The first point that arises for consideration is whether any appeal lay under Section 64 of the Act to the State Transport Appellate Tribunal against the issue of a permit in pursuance of an earlier resolution of the Regional Transport Authority granting the permit. It is only necessary to read Section 64 (1) (a) which is material for the purpose of this appeal:64 (1) (a): "Any person aggrieved by the refusal of the State or a Regional Transport Authority to grant a permit or by any condition attached to a permit granted to him...... may within the prescribed time and in the prescribed manner, appeal to the State Transport Appellate Tribunal constituted under sub-section (2), who shall, after giving such person and the original authority an opportunity of being heard, give a decision thereon which shall be final".We are not required to consider the other clauses of Section 64 (1) which are admittedly not relevant. Sec. 64 has to be read with Rule 178 of the Rules which prescribes the procedure for appeal to the various authorities.5. Appeal is a creature of the statute. There is no dispute that Section 64 of the Act is the only section creating rights of appeal against the grant of permit and other matters with which we are not concerned here. There is no appeal provided for under Section 64 against an order issuing a permit in pursuance of the order granting the permit. Issuance of the permit is only ministerial act necessarily following the grant of the permit. The appeals before the Transport Appellate Tribunal and the further appeal to the Mysore Revenue Appellate Tribunal are, therefore, not competent under Section 64 of the Act and both the Tribunals had no jurisdiction to entertain the appeals and to interfere with the order of the Regional Transport Authority granting the permit which had already been affirmed in appeal by the State Transport Appellate Tribunal and further in second appeal by the Mysore Revenue Appellate Tribunal. There was, therefore, a clear error of jurisdiction on the part of both the Tribunals in interfering with the grant of the permit of the appellant. The High Court was, therefore, not right in dismissing the writ application of the appellant, which ought to have been allowed.6. Although arguments were addressed by counsel with regard to old Rule 151 and Rule 119 of the Mysore Motor Vehicles Rules, 1963, we do not feel called upon to pronounce upon the legal effect of these rules in this appeal.
### Response:
1
### Explanation:
There is no dispute that Section 64 of the Act is the only section creating rights of appeal against the grant of permit and other matters with which we are not concerned here. There is no appeal provided for under Section 64 against an order issuing a permit in pursuance of the order granting the permit. Issuance of the permit is only ministerial act necessarily following the grant of the permit. The appeals before the Transport Appellate Tribunal and the further appeal to the Mysore Revenue Appellate Tribunal are, therefore, not competent under Section 64 of the Act and both the Tribunals had no jurisdiction to entertain the appeals and to interfere with the order of the Regional Transport Authority granting the permit which had already been affirmed in appeal by the State Transport Appellate Tribunal and further in second appeal by the Mysore Revenue Appellate Tribunal. There was, therefore, a clear error of jurisdiction on the part of both the Tribunals in interfering with the grant of the permit of the appellant. The High Court was, therefore, not right in dismissing the writ application of the appellant, which ought to have been allowed.6. Although arguments were addressed by counsel with regard to old Rule 151 and Rule 119 of the Mysore Motor Vehicles Rules, 1963, we do not feel called upon to pronounce upon the legal effect of these rules in this appeal.
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M/S. Monnet Ispat & Energy Ltd Vs. Jan Chetna | order in Writ Petition (C) No. 8399 of 2009, which was described as a Public Interest Litigation and prayed that order dated 31.12.2008 passed by NEAA may be set aside and a direction be issued to NEAA to decide the appeal on merits. Respondent No.1 claimed that it was a representative body of those affected by the environmental clearance granted in favour of the appellant and, therefore, it had the locus to challenge the decision taken by respondent No.2.8. In the counter affidavit filed by the appellant, several objections were taken to the maintainability of the petition. It was pleaded that in the garb of filing a Public Interest Litigation, respondent No.1 was seeking annulment of the order passed by NEAA and such relief could be claimed only by filing a regular petition under Article 226 of the Constitution, which is required to be heard and decided by a Single Judge. The appellant also referred to the pendency of Writ Petition(C) No.5534/2007 before the Chhattisgarh High Court and pleaded that the writ petition filed before the Delhi High Court was an abuse of the process of the Court. Another plea taken by the appellant was that the entire cause of action for filing the petition had accrued in Chhattisgarh and the Delhi High Court did not have the jurisdiction to entertain the petition filed by respondent No.1.9. The Division Bench of the High Court did take cognizance of the objections taken by the appellant but did not deal with the same except the one relating to territorial jurisdiction of the Delhi High Court and overruled the same. On merits, the Division Bench relied upon judgment dated 14.9.2009 passed by a coordinate Bench in LPA No.277/2009 Vedanta Alumina Ltd. v. Prafulla Samantra and others wherein it was held that an organisation, which is working in the area and is closely following the issue of setting up of industries and impact thereof on the environment falls in the category of a ‘person aggrieved’ and concluded that NEAA committed serious error by dismissing the appeal of respondent No.1 on the ground of lack of locus. 10. We have heard Dr. A.M. Singhvi, learned senior counsel for the appellant and Shri Sanjay Parikh, learned counsel for respondent No.1 and perused the record. 11. Shri Parikh made strenuous efforts to convince the Court that the hypertechnical objection raised by the appellant should not be entertained and in view of the judgment rendered by the Division Bench of the High Court in Vedanta Alumina Ltd. v. Prafulla Samantra (supra), the special leave petition should be dismissed. 12. We have considered the submission of the learned counsel but have not felt impressed. 13. Chapter 3 Part A of the Delhi High Court Rules contains rules relating to the practice of the High Court in the hearing of causes and other matters. Part B contains rules relating to the jurisdiction of a Single Judge and of Benches of the Court. The relevant clauses of Rule 1 of Part B read as under: “Part BJURISDICTION OF A SINGLE JUDGE AND OF BENCHES OF THE COURT1. Cases ordinarily to be heard by a single Judge—Subject to the provisos hereinafter set forth the following classes of cases shall ordinarily be heard and disposed of by a Judge setting alone:(i) to (xvii) xxx xxx xxx(xviii) (a) Application or petition under Article 226 of the Constitution of India for the issue of any directions, orders or writs in the nature of Mandamus, prohibition, quo-warranto or certiorari for the enforcement of fundamental rights conferred by Part III of the Constitution of India or for any other purpose, except:(i) Petitions where vires of Acts or statutory rules, regulations, or bye-laws are challenged.(ii) Petitions where personal liberty is involved.(iii) Petitions pertaining to all Revenue/tax matters including entertainment taxes, except Municipal Tax.(iv) Petitions arising from the orders of the Board for Industrial and Financial Reconstruction/Appellate Authority for Industrial and Financial Reconstruction or seeking directions to them; and(v) Petitions pertaining to Public Interest litigation.(vi) Petitions pertaining to the award to Tenders.(vii) Petitions relating to Co-operative Societies.(viii) Petitions being service matters of Armed Forces of the Union.(ix) Petitions arising out of Land Acquisition.(x) Petitions concerning orders passed by the High Court on the administrative side.Provided that as regards pending cases, the learned single Judge may hear the part-heard matters.Explanation: The preliminary hearing for admission and final disposal of applications and petitions pertaining to matters mentioned in clause (i) to (x) of sub-rule (xviii)(a) above shall however be before a Bench of two Judges and before a Single Bench when there is no sitting of Division Bench.” Rule 4, which relates to jurisdiction of a Bench of two Judges, also reads as under: “4. All cases to be disposed of by a Bench of two Judges save as provided by law or by these rules—Save as provided by law or by these rules or by special order of the Chief Justice, all cases shall be heard and disposed of by a Bench of two Judges.” 14. A bare reading of the above reproduced provisions makes it clear that the petition filed by respondent No.1 for quashing order dated 31.12.2008 could be heard only by Single Bench of the Delhi High Court. However, by disguising the petition as a Public Interest Litigation, respondent No.1 succeeded in getting the same listed before the Division Bench of the High Court. Unfortunately, the Division Bench did not deal with the objection raised by the appellant to the maintainability of the petition filed by respondent No.1 and proceeded to decide the matter on merits which, in our considered view, was legally impermissible.15. We are not suggesting that respondent No.1 had indulged in Bench hunting but it needs to be emphasised that every Bench of the High Court should scrupulously follow the relevant rules and should not violate statutory provisions specifying its jurisdiction, else the sanctity of the rules relating to distribution of causes between the Single, the Division Bench and larger Benches will be lost. | 1[ds]14. A bare reading of the above reproduced provisions makes it clear that the petition filed by respondent No.1 for quashing order dated 31.12.2008 could be heard only by Single Bench of the Delhi High Court. However, by disguising the petition as a Public Interest Litigation, respondent No.1 succeeded in getting the same listed before the Division Bench of the High Court. Unfortunately, the Division Bench did not deal with the objection raised by the appellant to the maintainability of the petition filed by respondent No.1 and proceeded to decide the matter on merits which, in our considered view, was legally impermissible.15. We are not suggesting that respondent No.1 had indulged in Bench hunting but it needs to be emphasised that every Bench of the High Court should scrupulously follow the relevant rules and should not violate statutory provisions specifying its jurisdiction, else the sanctity of the rules relating to distribution of causes between the Single, the Division Bench and larger Benches will be lost. | 1 | 2,269 | 181 | ### Instruction:
Speculate on the likely judgment (yes (1) or no (0) to the appeal) and then delve into the case proceeding to elucidate your prediction, focusing on critical sentences.
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order in Writ Petition (C) No. 8399 of 2009, which was described as a Public Interest Litigation and prayed that order dated 31.12.2008 passed by NEAA may be set aside and a direction be issued to NEAA to decide the appeal on merits. Respondent No.1 claimed that it was a representative body of those affected by the environmental clearance granted in favour of the appellant and, therefore, it had the locus to challenge the decision taken by respondent No.2.8. In the counter affidavit filed by the appellant, several objections were taken to the maintainability of the petition. It was pleaded that in the garb of filing a Public Interest Litigation, respondent No.1 was seeking annulment of the order passed by NEAA and such relief could be claimed only by filing a regular petition under Article 226 of the Constitution, which is required to be heard and decided by a Single Judge. The appellant also referred to the pendency of Writ Petition(C) No.5534/2007 before the Chhattisgarh High Court and pleaded that the writ petition filed before the Delhi High Court was an abuse of the process of the Court. Another plea taken by the appellant was that the entire cause of action for filing the petition had accrued in Chhattisgarh and the Delhi High Court did not have the jurisdiction to entertain the petition filed by respondent No.1.9. The Division Bench of the High Court did take cognizance of the objections taken by the appellant but did not deal with the same except the one relating to territorial jurisdiction of the Delhi High Court and overruled the same. On merits, the Division Bench relied upon judgment dated 14.9.2009 passed by a coordinate Bench in LPA No.277/2009 Vedanta Alumina Ltd. v. Prafulla Samantra and others wherein it was held that an organisation, which is working in the area and is closely following the issue of setting up of industries and impact thereof on the environment falls in the category of a ‘person aggrieved’ and concluded that NEAA committed serious error by dismissing the appeal of respondent No.1 on the ground of lack of locus. 10. We have heard Dr. A.M. Singhvi, learned senior counsel for the appellant and Shri Sanjay Parikh, learned counsel for respondent No.1 and perused the record. 11. Shri Parikh made strenuous efforts to convince the Court that the hypertechnical objection raised by the appellant should not be entertained and in view of the judgment rendered by the Division Bench of the High Court in Vedanta Alumina Ltd. v. Prafulla Samantra (supra), the special leave petition should be dismissed. 12. We have considered the submission of the learned counsel but have not felt impressed. 13. Chapter 3 Part A of the Delhi High Court Rules contains rules relating to the practice of the High Court in the hearing of causes and other matters. Part B contains rules relating to the jurisdiction of a Single Judge and of Benches of the Court. The relevant clauses of Rule 1 of Part B read as under: “Part BJURISDICTION OF A SINGLE JUDGE AND OF BENCHES OF THE COURT1. Cases ordinarily to be heard by a single Judge—Subject to the provisos hereinafter set forth the following classes of cases shall ordinarily be heard and disposed of by a Judge setting alone:(i) to (xvii) xxx xxx xxx(xviii) (a) Application or petition under Article 226 of the Constitution of India for the issue of any directions, orders or writs in the nature of Mandamus, prohibition, quo-warranto or certiorari for the enforcement of fundamental rights conferred by Part III of the Constitution of India or for any other purpose, except:(i) Petitions where vires of Acts or statutory rules, regulations, or bye-laws are challenged.(ii) Petitions where personal liberty is involved.(iii) Petitions pertaining to all Revenue/tax matters including entertainment taxes, except Municipal Tax.(iv) Petitions arising from the orders of the Board for Industrial and Financial Reconstruction/Appellate Authority for Industrial and Financial Reconstruction or seeking directions to them; and(v) Petitions pertaining to Public Interest litigation.(vi) Petitions pertaining to the award to Tenders.(vii) Petitions relating to Co-operative Societies.(viii) Petitions being service matters of Armed Forces of the Union.(ix) Petitions arising out of Land Acquisition.(x) Petitions concerning orders passed by the High Court on the administrative side.Provided that as regards pending cases, the learned single Judge may hear the part-heard matters.Explanation: The preliminary hearing for admission and final disposal of applications and petitions pertaining to matters mentioned in clause (i) to (x) of sub-rule (xviii)(a) above shall however be before a Bench of two Judges and before a Single Bench when there is no sitting of Division Bench.” Rule 4, which relates to jurisdiction of a Bench of two Judges, also reads as under: “4. All cases to be disposed of by a Bench of two Judges save as provided by law or by these rules—Save as provided by law or by these rules or by special order of the Chief Justice, all cases shall be heard and disposed of by a Bench of two Judges.” 14. A bare reading of the above reproduced provisions makes it clear that the petition filed by respondent No.1 for quashing order dated 31.12.2008 could be heard only by Single Bench of the Delhi High Court. However, by disguising the petition as a Public Interest Litigation, respondent No.1 succeeded in getting the same listed before the Division Bench of the High Court. Unfortunately, the Division Bench did not deal with the objection raised by the appellant to the maintainability of the petition filed by respondent No.1 and proceeded to decide the matter on merits which, in our considered view, was legally impermissible.15. We are not suggesting that respondent No.1 had indulged in Bench hunting but it needs to be emphasised that every Bench of the High Court should scrupulously follow the relevant rules and should not violate statutory provisions specifying its jurisdiction, else the sanctity of the rules relating to distribution of causes between the Single, the Division Bench and larger Benches will be lost.
### Response:
1
### Explanation:
14. A bare reading of the above reproduced provisions makes it clear that the petition filed by respondent No.1 for quashing order dated 31.12.2008 could be heard only by Single Bench of the Delhi High Court. However, by disguising the petition as a Public Interest Litigation, respondent No.1 succeeded in getting the same listed before the Division Bench of the High Court. Unfortunately, the Division Bench did not deal with the objection raised by the appellant to the maintainability of the petition filed by respondent No.1 and proceeded to decide the matter on merits which, in our considered view, was legally impermissible.15. We are not suggesting that respondent No.1 had indulged in Bench hunting but it needs to be emphasised that every Bench of the High Court should scrupulously follow the relevant rules and should not violate statutory provisions specifying its jurisdiction, else the sanctity of the rules relating to distribution of causes between the Single, the Division Bench and larger Benches will be lost.
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Kawasaki Kisen Kaisha Limited Vs. Commissioner of Income Tax, West Bengal II | shall be deemed to authorise, or shall be deemed ever to have authorised, any deduction in the computation of the income of any assessee chargeable under the head profits and gains of business, profession or vocation or income from other sources for the assessment year commencing on the 1st day of April, 1957, or any subsequent assessment year, of any sum paid on account of wealth-tax."To this section also an Explanation was added saying" Explanation.--For the purposes of this section, wealth-tax shall have the same meaning as is assigned to it in the Explanation to sub-clause (iia) of clause (a) of section 40 of the principal Act."8. Section 5 of the Amendment Act contains a saving clause to which it is not necessary to refer for the purpose of these appeals9. We have mentioned earlier the assessment years concerned in the instant appeals. The question is, what is the effect of the Income-tax (Amendment) Act, 1972, on these appeals. The amendments introduced do not appear to touch the principle laid down in Indian Aluminium Companys case that when a person has a dual capacity of a trader-cum-owner, and he pays tax in respect of property which is used for the purpose of trade, the payment must be taken to be in the capacity of a trader. The Amendment Act only adds the sum paid on account of wealth-tax to the list of amounts not deductible in computing the assessees income from business. Therefore, any amount paid by the assessee on account of a tax other than the wealth-tax on his business assets would be outside the scope of the Amendment Act and would continue to be governed by the law laid down in Indian Aluminium Companys case. The Explanation to the new sub-clause (iia) inserted in section 40 of the Income-tax Act, 1961, which section 4 of the Amendment Act adopts for the purposes of that section, defines " wealth-tax " to include, inter alia, besides wealth-tax chargeable under the Wealth-tax Act, 1957, " any tax of a similar character chargeable under any law in force in any country outside India. The only contention raised before us on behalf of the revenue was that the nature of the tax paid by the assessee in Japan on their business assets is similar to the wealth-tax payable under the Wealth-tax Act, 1957. This leads to a comparison of the two statutes, the Wealth-tax Act, 1957, and the Local Tax Law of Japan, to find out whether they are of a similar character. The supplementary statement of case drawn up by the Tribunal pursuant to an order of this court dated April 11, 1973, discloses that the assets belonging to the appellants with which we are concerned in these appeals were all used by them in their business during the relevant previous years and also that the payment of tax under the Japanese law was incidental to the carrying on of the business of the assesseesFrom an examination of the provisions contained in Book Four of the Japanese statute, it appears to us that there is a basic difference between the Wealth-tax Act, 1957, and the Local Tax Law of Japan. Wealth-tax in India is charged on the net wealth of the assessee. Net wealth as defined in section 2(m) of the Wealth-tax Act, 1957, means, broadly, the aggregate value of all the assets, wherever located, belonging to the assessee minus the total amount of the debts, with certain exceptions, owed by him. Generally speaking, by the value of an asset, other than cash, is meant its market value. " Assets " has been defined in clause (e) of section 2 of the Act as including property of every description, movable or immovable, with certain specified exemptions. Wealth-tax in India is a national tax charged by the Central Government. The municipal property tax in Japan is imposed on property as defined in article 341(1). In this definition, property includes only land, houses and depreciable assets and not property of every description. Depreciable assets has been defined in article 341(4), inter alia, as assets other than land and house which can be used for business purpose, but these assets again exclude all depreciable intangible property and property which are the objects of other taxes like automobiles, bicycles and carts. Article 342 lays down that the municipal property tax shall be imposed on property by the city, town or village in which the property concerned is located and provides that with respect to vessels, vehicles and other objects similar in nature which are included in depreciable assets, the city, town and village in which the principal port of anchorage or regular keeping place is located shall be the city, town or village authorised to impose the municipal property tax. Further, it appears that under the Japanese law, tax is charged at the standard rate of 1.4 per cent. on the value of the property computed in the manner laid down in the statute providing the taxable basis, and in certain special cases it may go up to 2.5 per cent., which is the maximum ; in India, the rates of wealth-tax vary, increasing progressively with the amount of net wealth of the assesseeThe broad features of the two statutes we have noted above reveal their basic dissimilarity. Unlike the wealth-tax in India, the municipal property tax of Japan is a local tax imposed on certain specified properties by the city, town or village in which the properties are located. The wealth-tax is a national tax chargeable on the net wealth of a person with certain specified exemptions. The difference in the manner of determination of the taxable basis of the properties and the rates of taxation emphasize the basic difference between the two taxes. Of course, there are certain points of similarity between the two laws, as there must be, both being taxing statutes, but these similarities do not remove the fundamental difference in the aim, object and the basic structure of the two Acts | 1[ds]The broad features of the two statutes we have noted above reveal their basic dissimilarity. Unlike thein India, the municipal property tax of Japan is a local tax imposed on certain specified properties by the city, town or village in which the properties are located. Theis a national tax chargeable on the net wealth of a person with certain specified exemptions. The difference in the manner of determination of the taxable basis of the properties and the rates of taxation emphasize the basic difference between the two taxes. Of course, there are certain points of similarity between the two laws, as there must be, both being taxing statutes, but these similarities do not remove the fundamental difference in the aim, object and the basic structure of the two Acts | 1 | 3,070 | 144 | ### 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:
shall be deemed to authorise, or shall be deemed ever to have authorised, any deduction in the computation of the income of any assessee chargeable under the head profits and gains of business, profession or vocation or income from other sources for the assessment year commencing on the 1st day of April, 1957, or any subsequent assessment year, of any sum paid on account of wealth-tax."To this section also an Explanation was added saying" Explanation.--For the purposes of this section, wealth-tax shall have the same meaning as is assigned to it in the Explanation to sub-clause (iia) of clause (a) of section 40 of the principal Act."8. Section 5 of the Amendment Act contains a saving clause to which it is not necessary to refer for the purpose of these appeals9. We have mentioned earlier the assessment years concerned in the instant appeals. The question is, what is the effect of the Income-tax (Amendment) Act, 1972, on these appeals. The amendments introduced do not appear to touch the principle laid down in Indian Aluminium Companys case that when a person has a dual capacity of a trader-cum-owner, and he pays tax in respect of property which is used for the purpose of trade, the payment must be taken to be in the capacity of a trader. The Amendment Act only adds the sum paid on account of wealth-tax to the list of amounts not deductible in computing the assessees income from business. Therefore, any amount paid by the assessee on account of a tax other than the wealth-tax on his business assets would be outside the scope of the Amendment Act and would continue to be governed by the law laid down in Indian Aluminium Companys case. The Explanation to the new sub-clause (iia) inserted in section 40 of the Income-tax Act, 1961, which section 4 of the Amendment Act adopts for the purposes of that section, defines " wealth-tax " to include, inter alia, besides wealth-tax chargeable under the Wealth-tax Act, 1957, " any tax of a similar character chargeable under any law in force in any country outside India. The only contention raised before us on behalf of the revenue was that the nature of the tax paid by the assessee in Japan on their business assets is similar to the wealth-tax payable under the Wealth-tax Act, 1957. This leads to a comparison of the two statutes, the Wealth-tax Act, 1957, and the Local Tax Law of Japan, to find out whether they are of a similar character. The supplementary statement of case drawn up by the Tribunal pursuant to an order of this court dated April 11, 1973, discloses that the assets belonging to the appellants with which we are concerned in these appeals were all used by them in their business during the relevant previous years and also that the payment of tax under the Japanese law was incidental to the carrying on of the business of the assesseesFrom an examination of the provisions contained in Book Four of the Japanese statute, it appears to us that there is a basic difference between the Wealth-tax Act, 1957, and the Local Tax Law of Japan. Wealth-tax in India is charged on the net wealth of the assessee. Net wealth as defined in section 2(m) of the Wealth-tax Act, 1957, means, broadly, the aggregate value of all the assets, wherever located, belonging to the assessee minus the total amount of the debts, with certain exceptions, owed by him. Generally speaking, by the value of an asset, other than cash, is meant its market value. " Assets " has been defined in clause (e) of section 2 of the Act as including property of every description, movable or immovable, with certain specified exemptions. Wealth-tax in India is a national tax charged by the Central Government. The municipal property tax in Japan is imposed on property as defined in article 341(1). In this definition, property includes only land, houses and depreciable assets and not property of every description. Depreciable assets has been defined in article 341(4), inter alia, as assets other than land and house which can be used for business purpose, but these assets again exclude all depreciable intangible property and property which are the objects of other taxes like automobiles, bicycles and carts. Article 342 lays down that the municipal property tax shall be imposed on property by the city, town or village in which the property concerned is located and provides that with respect to vessels, vehicles and other objects similar in nature which are included in depreciable assets, the city, town and village in which the principal port of anchorage or regular keeping place is located shall be the city, town or village authorised to impose the municipal property tax. Further, it appears that under the Japanese law, tax is charged at the standard rate of 1.4 per cent. on the value of the property computed in the manner laid down in the statute providing the taxable basis, and in certain special cases it may go up to 2.5 per cent., which is the maximum ; in India, the rates of wealth-tax vary, increasing progressively with the amount of net wealth of the assesseeThe broad features of the two statutes we have noted above reveal their basic dissimilarity. Unlike the wealth-tax in India, the municipal property tax of Japan is a local tax imposed on certain specified properties by the city, town or village in which the properties are located. The wealth-tax is a national tax chargeable on the net wealth of a person with certain specified exemptions. The difference in the manner of determination of the taxable basis of the properties and the rates of taxation emphasize the basic difference between the two taxes. Of course, there are certain points of similarity between the two laws, as there must be, both being taxing statutes, but these similarities do not remove the fundamental difference in the aim, object and the basic structure of the two Acts
### Response:
1
### Explanation:
The broad features of the two statutes we have noted above reveal their basic dissimilarity. Unlike thein India, the municipal property tax of Japan is a local tax imposed on certain specified properties by the city, town or village in which the properties are located. Theis a national tax chargeable on the net wealth of a person with certain specified exemptions. The difference in the manner of determination of the taxable basis of the properties and the rates of taxation emphasize the basic difference between the two taxes. Of course, there are certain points of similarity between the two laws, as there must be, both being taxing statutes, but these similarities do not remove the fundamental difference in the aim, object and the basic structure of the two Acts
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State Of Maharashtra Vs. Sanjay K. Nimje | Resolutions quoted in the preamble at Sr.No.1, the Caste Scrutiny Committee has come to the conclusion that Shri Sanjay Krushnarao Nimje does not belong to the Halba Scheduled Tribe hence his claim towards the same is held invalid. His caste certificate granted by the Executive Magistrate, Nagpur vide R.C.No.287/MRC-81/88-89, dated 1.9.88 is hereby cancelled confiscated." 12. It is accepted that an undertaking was filed by the respondent accepting the order passed by Appellant No. 3 - Committee before the High Court in the following terms: "The Petitioner is filing this pursis/undertaking that he accepts the order passed by the Respondent No.2 Scrutiny Committee and further undertakes that he or his legal heirs/progeny will not claim any benefit as a schedule Tribe Candidate either in education or in employment.In view of the Government Resolution dated 15.6.1995 and the judgment of this Honble Court, filed along with this petition as Annexure T, the services of the Petitioner be protected and he may be continued in service by giving specific directions to the Respondent employer." 13. Indisputably, on 7.12.1994, Koshtis were declared to be as Special Backward Class category. By reason of the said Government Resolution dated 15.06.1995, it was directed: "The reservation as aforesaid given to Special Backward Class category is applicable to direct recruitment and promotions and the Creamy layer criteria is not applicable to this category. The persons from this category who have entered into service and has obtained promotion on the basis of Schedule Tribe Certificates, they should not be reverted or terminated from service." 14. Respondent admittedly was appointed on 29.06.1995. Although he might have been selected on 15.06.1995, ex facie, the said Government Resolution dated 15.06.1995 would have no application in his case. 15. Once the respondent became disentitled to obtain the benefit of the said Government Resolution dated 15.06.1995, the 2000 Act will apply in his case. 16. The 2000 Act being a legislative Act would prevail over any Government Resolution. A Government Resolution may be beneficent in nature but it is well-settled that a benefit under a Government Resolution cannot be extended to a person who does not satisfy the conditions precedent thereof. 17. In any event, the effect of the judgment of this Court as also the provisions of a statute in the light of the constitutional provisions contained in Articles 341 and 342 of the Constitution of India cannot be diluted by reason of a Government Resolution or otherwise. 18. The extent of jurisdiction of the Caste Scrutiny Committee came up for consideration before this Court in State of Maharashtra and Others v. Ravi Prakash Babulalsing Parmar & Anr. [2006 (10) SCALE 575 : 2007 (1) SCC 80 ] wherein this Court categorically held that the Caste Scrutiny Committee has the requisite jurisdiction in relation thereto, stating: "The makers of the Constitution laid emphasis on equality amongst citizens. Constitution of India provides for protective discrimination and reservation so as to enable the disadvantaged group to come on the same platform as that of the forward community. If and when a person takes an undue advantage of the said beneficent provision of the Constitution by obtaining the benefits of reservation and other benefits provided under the Presidential Order although he is not entitled thereto, he not only plays a fraud on the society but in effect and substance plays a fraud on the Constitution. When, therefore, a certificate is granted to a person who is not otherwise entitled thereto, it is entirely incorrect to contend that the State shall be helpless spectator in the matter." 19. We may also notice that ordinarily a person, who has obtained appointment on the basis of a false certificate, cannot retain the said benefit. [See Bank of India and Another v. Avinash D. Mandivikar and Others, (2005) 7 SCC 690 , Ram Saran v. I.G. of Police, CRPF & Ors. 2006 (2) SCALE 131 and The Superintendent of Post Offices & Ors. v. R. Valasina Babu, Civil Appeal No. 5868 of 2006, disposed of on 14.12.2006] 20. In a situation of this nature, whether the court will refuse to exercise its discretionary jurisdiction under Article 136 of the Constitution of India or not would depend upon the facts and circumstances of each case. This aspect of the matter has been considered recently by this Court in Sandeep Subhash Parate v. State of Maharashtra & Ors. [2006 (8) SCALE 503 ].21. From the order of the Caste Scrutiny Committee itself, it is evident that the father of the respondent was shown in the primary school register as belonging to Koshti caste. They were not members of Scheduled Tribe. They were not even Koshti-Halbas. It may be true that an authoritative pronouncement in this behalf came for the first time in Milind (supra), but it is not a case where the respondent pleaded and proved bona fide.22. Respondent was not the member of a tribe. If a person is not a member of a tribe, the question of the said tribe being a scheduled tribe would not arise.23. Thus, it is a clear case where the provisions of the 2000 Act would apply. We see no reason as to why the statutory provisions should not be directed to apply in the instant case. It may be that at one point of time, keeping in view of the stand taken in particular case, some indulgence had been shown. Indulgence might have been shown to the students or who were found to have acted bona fide but the same would not mean that this Court would pass an order contrary to or inconsistent with the provisions of a legislative act.24. Our attention was drawn to an order dated 12th December, 2000 passed in Civil Appeal No. 3375 of 2000, but it does not appear the provisions of the 2000 Act had been brought to the notice of this Court therein. Furthermore, we are not aware as to the fact involved therein and, thus, the same cannot be treated to be a precedent. | 1[ds]20. In a situation of this nature, whether the court will refuse to exercise its discretionary jurisdiction under Article 136 of the Constitution of India or not would depend upon the facts and circumstances of each case. This aspect of the matter has been considered recently by this Court in Sandeep Subhash Parate v. State of Maharashtra & Ors. [2006 (8) SCALE 503 ].21. From the order of the Caste Scrutiny Committee itself, it is evident that the father of the respondent was shown in the primary school register as belonging to Koshti caste. They were not members of Scheduled Tribe. They were not even Koshti-Halbas. It may be true that an authoritative pronouncement in this behalf came for the first time in Milind (supra), but it is not a case where the respondent pleaded and proved bona fide.22. Respondent was not the member of a tribe. If a person is not a member of a tribe, the question of the said tribe being a scheduled tribe would not arise.23. Thus, it is a clear case where the provisions of the 2000 Act would apply. We see no reason as to why the statutory provisions should not be directed to apply in the instant case. It may be that at one point of time, keeping in view of the stand taken in particular case, some indulgence had been shown. Indulgence might have been shown to the students or who were found to have acted bona fide but the same would not mean that this Court would pass an order contrary to or inconsistent with the provisions of a legislative act.24. Our attention was drawn to an order dated 12th December, 2000 passed in Civil Appeal No. 3375 of 2000, but it does not appear the provisions of the 2000 Act had been brought to the notice of this Court therein. Furthermore, we are not aware as to the fact involved therein and, thus, the same cannot be treated to be a precedent. | 1 | 2,793 | 372 | ### 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:
Resolutions quoted in the preamble at Sr.No.1, the Caste Scrutiny Committee has come to the conclusion that Shri Sanjay Krushnarao Nimje does not belong to the Halba Scheduled Tribe hence his claim towards the same is held invalid. His caste certificate granted by the Executive Magistrate, Nagpur vide R.C.No.287/MRC-81/88-89, dated 1.9.88 is hereby cancelled confiscated." 12. It is accepted that an undertaking was filed by the respondent accepting the order passed by Appellant No. 3 - Committee before the High Court in the following terms: "The Petitioner is filing this pursis/undertaking that he accepts the order passed by the Respondent No.2 Scrutiny Committee and further undertakes that he or his legal heirs/progeny will not claim any benefit as a schedule Tribe Candidate either in education or in employment.In view of the Government Resolution dated 15.6.1995 and the judgment of this Honble Court, filed along with this petition as Annexure T, the services of the Petitioner be protected and he may be continued in service by giving specific directions to the Respondent employer." 13. Indisputably, on 7.12.1994, Koshtis were declared to be as Special Backward Class category. By reason of the said Government Resolution dated 15.06.1995, it was directed: "The reservation as aforesaid given to Special Backward Class category is applicable to direct recruitment and promotions and the Creamy layer criteria is not applicable to this category. The persons from this category who have entered into service and has obtained promotion on the basis of Schedule Tribe Certificates, they should not be reverted or terminated from service." 14. Respondent admittedly was appointed on 29.06.1995. Although he might have been selected on 15.06.1995, ex facie, the said Government Resolution dated 15.06.1995 would have no application in his case. 15. Once the respondent became disentitled to obtain the benefit of the said Government Resolution dated 15.06.1995, the 2000 Act will apply in his case. 16. The 2000 Act being a legislative Act would prevail over any Government Resolution. A Government Resolution may be beneficent in nature but it is well-settled that a benefit under a Government Resolution cannot be extended to a person who does not satisfy the conditions precedent thereof. 17. In any event, the effect of the judgment of this Court as also the provisions of a statute in the light of the constitutional provisions contained in Articles 341 and 342 of the Constitution of India cannot be diluted by reason of a Government Resolution or otherwise. 18. The extent of jurisdiction of the Caste Scrutiny Committee came up for consideration before this Court in State of Maharashtra and Others v. Ravi Prakash Babulalsing Parmar & Anr. [2006 (10) SCALE 575 : 2007 (1) SCC 80 ] wherein this Court categorically held that the Caste Scrutiny Committee has the requisite jurisdiction in relation thereto, stating: "The makers of the Constitution laid emphasis on equality amongst citizens. Constitution of India provides for protective discrimination and reservation so as to enable the disadvantaged group to come on the same platform as that of the forward community. If and when a person takes an undue advantage of the said beneficent provision of the Constitution by obtaining the benefits of reservation and other benefits provided under the Presidential Order although he is not entitled thereto, he not only plays a fraud on the society but in effect and substance plays a fraud on the Constitution. When, therefore, a certificate is granted to a person who is not otherwise entitled thereto, it is entirely incorrect to contend that the State shall be helpless spectator in the matter." 19. We may also notice that ordinarily a person, who has obtained appointment on the basis of a false certificate, cannot retain the said benefit. [See Bank of India and Another v. Avinash D. Mandivikar and Others, (2005) 7 SCC 690 , Ram Saran v. I.G. of Police, CRPF & Ors. 2006 (2) SCALE 131 and The Superintendent of Post Offices & Ors. v. R. Valasina Babu, Civil Appeal No. 5868 of 2006, disposed of on 14.12.2006] 20. In a situation of this nature, whether the court will refuse to exercise its discretionary jurisdiction under Article 136 of the Constitution of India or not would depend upon the facts and circumstances of each case. This aspect of the matter has been considered recently by this Court in Sandeep Subhash Parate v. State of Maharashtra & Ors. [2006 (8) SCALE 503 ].21. From the order of the Caste Scrutiny Committee itself, it is evident that the father of the respondent was shown in the primary school register as belonging to Koshti caste. They were not members of Scheduled Tribe. They were not even Koshti-Halbas. It may be true that an authoritative pronouncement in this behalf came for the first time in Milind (supra), but it is not a case where the respondent pleaded and proved bona fide.22. Respondent was not the member of a tribe. If a person is not a member of a tribe, the question of the said tribe being a scheduled tribe would not arise.23. Thus, it is a clear case where the provisions of the 2000 Act would apply. We see no reason as to why the statutory provisions should not be directed to apply in the instant case. It may be that at one point of time, keeping in view of the stand taken in particular case, some indulgence had been shown. Indulgence might have been shown to the students or who were found to have acted bona fide but the same would not mean that this Court would pass an order contrary to or inconsistent with the provisions of a legislative act.24. Our attention was drawn to an order dated 12th December, 2000 passed in Civil Appeal No. 3375 of 2000, but it does not appear the provisions of the 2000 Act had been brought to the notice of this Court therein. Furthermore, we are not aware as to the fact involved therein and, thus, the same cannot be treated to be a precedent.
### Response:
1
### Explanation:
20. In a situation of this nature, whether the court will refuse to exercise its discretionary jurisdiction under Article 136 of the Constitution of India or not would depend upon the facts and circumstances of each case. This aspect of the matter has been considered recently by this Court in Sandeep Subhash Parate v. State of Maharashtra & Ors. [2006 (8) SCALE 503 ].21. From the order of the Caste Scrutiny Committee itself, it is evident that the father of the respondent was shown in the primary school register as belonging to Koshti caste. They were not members of Scheduled Tribe. They were not even Koshti-Halbas. It may be true that an authoritative pronouncement in this behalf came for the first time in Milind (supra), but it is not a case where the respondent pleaded and proved bona fide.22. Respondent was not the member of a tribe. If a person is not a member of a tribe, the question of the said tribe being a scheduled tribe would not arise.23. Thus, it is a clear case where the provisions of the 2000 Act would apply. We see no reason as to why the statutory provisions should not be directed to apply in the instant case. It may be that at one point of time, keeping in view of the stand taken in particular case, some indulgence had been shown. Indulgence might have been shown to the students or who were found to have acted bona fide but the same would not mean that this Court would pass an order contrary to or inconsistent with the provisions of a legislative act.24. Our attention was drawn to an order dated 12th December, 2000 passed in Civil Appeal No. 3375 of 2000, but it does not appear the provisions of the 2000 Act had been brought to the notice of this Court therein. Furthermore, we are not aware as to the fact involved therein and, thus, the same cannot be treated to be a precedent.
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Union of India & Others Vs. M/s. Tata Tea Co. Ltd. & Others | referred to the High Court was noticed which was to the following effect:2. The question referred by the Tribunal to the High Court of Judicature at Bombay was stated thus : Whether 60% of the dividend amounting to Rs. 2,750 - received by the assessee from the two Tea companies is agricultural income and as such exempt under section 4(3)(viii) of the Act. Chagla, C.J. and Tendolkar J., who heard the reference, answered the question in the negative by two separate but concurring judgments dated 28, March, 1952. 29. In paragraph 6 of the following was stated by this Court6. In order, however, that dividend may be held to be agricultural income it will be incumbent upon the appellant to show that, within the terms of the definition, it is rent or revenue derived from land which is used for agricultural purposes. Mr. Kolah, for the appellant, contends that it is revenue derived from land because 60% of the profits of the company out of which dividends are payable are referable to the pursuit of agricultural operations on the part of the company. It is true that the agricultural process renders 60% of the profits exempt from tax in the hands of the company from land which is used for agricultural purposes but can it be said that when such company decides to distribute its profits to the shareholders and declares the dividends to be allocated to them, such dividends in the hands of the shareholders also partake of the character of revenue derived from land which is used for agricultural purposes ? Such a position if accepted would extend the scope of the vital words revenue derived from land beyond its legitimate limits. Agricultural income as defined in the Act is obviously intended to refer to the revenue received by direct association with the land which is used for agricultural purposes and not by indirectly extending it to cases where that revenue or part thereof changes hands either by way of distribution of dividends or otherwise. In fact and truth dividends is derived from the investment made in the shares of the company and the foundation of it rests on the contractual relations between the company and the shareholder. Dividend is not derived by a shareholder by his direct relationship with the land. There can be no doubt that the initial source which has produced the revenue is land used for agricultural purposes but to give to the words revenue derived from land the unrestricted meaning apart from its direct association or relation with the land, would be quite unwarranted. For example, the proposition that a creditor advancing money on interest to an agriculturist and receiving interest out of the produce of the lands in the hands of the agriculturist can claim exemption of tax upon the ground that it is agricultural income within the meaning of section 4, sub-section (3) (viii), is hardly statable. The policy of the Act as gathered from the various sub-clauses of section 2(1) appears to be to exempt agricultural income from the purview of Income-tax Act. The object appears to be not to subject to tax either the actual tiller of the soil or any other person getting land cultivated by others for deriving benefit therefrom, but to say that the benefit intended to be conferred upon this class of persons should extend to those into whosoever hands that revenue falls, however remote the receiver of such revenue may be, is hardly warranted. 30. In The Commissioner of Income-Tax, Calcutta v. Nalin Behari Lal Singha, etc., 1969 (2) SCC 310 , this Court held that dividend distributed by a company being a share of its profits declared as distributable among the shareholders, is not impressed with the character of the profits from which it reaches the hands of the shareholder. Following was stated in paragraph 3:3...Dividend distributed by a company being a share of its profits declared as distributable among the shareholders, is not impressed with the character of the profits from which it reaches the hands of the shareholder. 31. Learned Single Judge of the Calcutta High Court relying on judgment of this Court in Mrs. Bacha F. Guzdar (supra) has dismissed the writ petition. The Division Bench of the Calcutta High Court, however, held that Single Judges decision relying on Mrs. Bacha F Guzdar (supra) was not correct preposition of law. 32. This Court in Mrs. Bacha F. Guzdar (supra) was considering the nature of dividend income in the hands of shareholders. Under the Income-tax Act, 1961 earlier the dividend was taxable at the hands of shareholder. By Finance Act, 1997 it was made taxable in the hand of company when additional tax was imposed. 33. This Court, however, while considering the nature of dividend in the above case held that although when the initial source which has produced the revenue is land used for agricultural purposes but to give to the words revenue derived from land, apart from its direct association or relation with the land, an unrestricted meaning shall be unwarranted. Again as noted above Nalin Behari Lal Singha (supra) observation was made that shares of its profits declared as distributable among the shareholders is not impressed with the character of the profit from which it reaches the hands of the shareholder. We, thus, find substances in the submission of the learned counsel for the Union of India that when the dividend is declared to be distributed and paid to companys shareholder it is not impressed with character of source of its income. 34. The provisions of Section 115-O are well within the competence of Parliament. To put any limitation in the said provision as held by the Calcutta High Court that additional tax can be levied only on the 40% of the dividend income shall be altering the provision of Section 115-O for which there is no warrant. The Calcutta High Court having upheld the vires of Section 115-O no further order was necessary in that writ petition. | 1[ds]13. Sub-clause (1) of Article 246 begins with non obstante clause that is Notwithstanding anything in clauses (2) and (3), Parliament has exclusive power to make laws with respect to any of the matters enumerated in List I in the Seventh Schedule. The State as per clause (3) of Article 246 Subject to clauses (1) and (2) of Article 246 has exclusive power to make laws for such State or any part thereof with respect to any of the matters enumerated in List II in the Seventh Schedule.17. The definition of agricultural income was contained in Income-tax Act, 1922. In the Income-tax Act, 1961 agricultural income has now been defined in Section 2(1A). The words agricultural income as used in the legislative entries, thus, has to be given the meaning as contained in Income-tax Act, 1961. The entries in the Seventh Schedule are not powers but fields of legislature. The words in the respective entries have to be given the widest scope of their meaning, each general word should extend to ancillary or subsidiary matter which can be comprehended in it. As per Entry 82, Union/Parliament, thus, has full power to legislate in the field of taxes on income. The subject excluded from its field are agricultural income.18. The definition given in 1961, Act of the word income is an inclusive definition.22. This Court has time and again emphasised that in the event of any overlapping is found in two Entries of Seventh Schedule or two legislations, it is the duty of the Court to find out its true intent and purpose and to examine the particular legislation in its pith and substance.24. As noted above Entry 82 of List I embraces entire field of tax on income. What is excluded is only tax on agricultural income which is contained in Entry 46 of List II. Income as defined in Section 2(24) of the 1961, Act is the inclusive definition including specifically dividend. Dividend is statutorily regulated and under the article of association of companies are required to be paid as per the Rules of the companies to the shareholders. Section 115-O pertains to declaration, distribution or payment of dividend by domestic company and imposition of additional tax on dividend is thus clearly covered by subject as embraced by Entry 82. The provisions of Section 115-O cannot be said to be directly included in the field of tax on agricultural income. Even if for the sake of argument it is considered that the provision trenches the field covered by Entry 46 of List II, the effect is only incidental and the legislation cannot be annulled on the ground of such incidental trenching in the field of the State legislature. Looking to the nature of the provision of Section 115-O and its consequences, the pith and substance of the legislation is clearly covered by Entry 82 of List I25. We, thus, repel the argument of the learned counsel for the writ petitioners that provision of Section 115-O is beyond the legislative competence of the Parliament.27. There cannot be any dispute regarding computation of income of Tea Co., manufacture of tea, as provided in Rule 8.28. This Court in Mrs. Bacha F. Guzdar, Bombay v. Commissioner of Income Tax, Bombay,AIR 1955 SC 74 , had occasion to consider the nature of an income in the hands of shareholders of company consequent to payment of dividend amount. The appellant in the above case was paid dividend by two Tea companies of which she was shareholder. The income received by the appellant was held taxable by the Revenue Authority which was also upheld by the High Court. In paragraph 2 of the judgment question referred to the High Court was noticed which was to the following effect:2. The question referred by the Tribunal to the High Court of Judicature at Bombay was stated thus :Whether 60% of the dividend amounting to Rs. 2,750 - received by the assessee from the two Tea companies is agricultural income and as such exempt under section 4(3)(viii) of the ActChagla, C.J. and Tendolkar J., who heard the reference, answered the question in the negative by two separate but concurring judgments dated 28, March, 1952.. In paragraph 6 of the following was stated by this Court6. In order, however, that dividend may be held to be agricultural income it will be incumbent upon the appellant to show that, within the terms of the definition, it is rent or revenue derived from land which is used for agricultural purposes. Mr. Kolah, for the appellant, contends that it is revenue derived from land because 60% of the profits of the company out of which dividends are payable are referable to the pursuit of agricultural operations on the part of the company. It is true that the agricultural process renders 60% of the profits exempt from tax in the hands of the company from land which is used for agricultural purposes but can it be said that when such company decides to distribute its profits to the shareholders and declares the dividends to be allocated to them, such dividends in the hands of the shareholders also partake of the character of revenue derived from land which is used for agricultural purposes ?Such a position if accepted would extend the scope of the vital words revenue derived from land beyond its legitimate limits. Agricultural income as defined in the Act is obviously intended to refer to the revenue received by direct association with the land which is used for agricultural purposes and not by indirectly extending it to cases where that revenue or part thereof changes hands either by way of distribution of dividends or otherwise. In fact and truth dividends is derived from the investment made in the shares of the company and the foundation of it rests on the contractual relations between the company and the shareholder. Dividend is not derived by a shareholder by his direct relationship with the landThere can be no doubt that the initial source which has produced the revenue is land used for agricultural purposes but to give to the words revenue derived from land the unrestricted meaning apart from its direct association or relation with the land, would be quite unwarranted. For example, the proposition that a creditor advancing money on interest to an agriculturist and receiving interest out of the produce of the lands in the hands of the agriculturist can claim exemption of tax upon the ground that it is agricultural income within the meaning of section 4, sub-section (3) (viii), is hardly statableThe policy of the Act as gathered from the various sub-clauses of section 2(1) appears to be to exempt agricultural income from the purview of Income-tax Act. The object appears to be not to subject to tax either the actual tiller of the soil or any other person getting land cultivated by others for deriving benefit therefrom, but to say that the benefit intended to be conferred upon this class of persons should extend to those into whosoever hands that revenue falls, however remote the receiver of such revenue may be, is hardly warranted.. In The Commissioner of Income-Tax, Calcutta v. Nalin Behari Lal Singha, etc., 1969 (2) SCC 310 , this Court held that dividend distributed by a company being a share of its profits declared as distributable among the shareholders, is not impressed with the character of the profits from which it reaches the hands of the shareholder. Following was stated in paragraph 3:3...Dividend distributed by a company being a share of its profits declared as distributable among the shareholders, is not impressed with the character of the profits from which it reaches the hands of the shareholder.. Learned Single Judge of the Calcutta High Court relying on judgment of this Court in Mrs. Bacha F. Guzdar (supra) has dismissed the writ petition. The Division Bench of the Calcutta High Court, however, held that Single Judges decision relying on Mrs. Bacha F Guzdar (supra) was not correct preposition of law32. This Court in Mrs. Bacha F. Guzdar (supra) was considering the nature of dividend income in the hands of shareholders. Under the Income-tax Act, 1961 earlier the dividend was taxable at the hands of shareholder. By Finance Act, 1997 it was made taxable in the hand of company when additional tax was imposed33. This Court, however, while considering the nature of dividend in the above case held that although when the initial source which has produced the revenue is land used for agricultural purposes but to give to the words revenue derived from land, apart from its direct association or relation with the land, an unrestricted meaning shall be unwarranted. Again as noted above Nalin Behari Lal Singha (supra) observation was made that shares of its profits declared as distributable among the shareholders is not impressed with the character of the profit from which it reaches the hands of the shareholder. We, thus, find substances in the submission of the learned counsel for the Union of India that when the dividend is declared to be distributed and paid to companys shareholder it is not impressed with character of source of its income34. The provisions of Section 115-O are well within the competence of Parliament. To put any limitation in the said provision as held by the Calcutta High Court that additional tax can be levied only on the 40% of the dividend income shall be altering the provision of Section 115-O for which there is no warrant. The Calcutta High Court having upheld the vires of Section 115-O no further order was necessary in that writ petition.The word income has also been defined in the Income-tax Act in Section 2(24) which is to the following effect:2(24) income includes(i) profits and gains; | 1 | 5,966 | 1,797 | ### Instruction:
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referred to the High Court was noticed which was to the following effect:2. The question referred by the Tribunal to the High Court of Judicature at Bombay was stated thus : Whether 60% of the dividend amounting to Rs. 2,750 - received by the assessee from the two Tea companies is agricultural income and as such exempt under section 4(3)(viii) of the Act. Chagla, C.J. and Tendolkar J., who heard the reference, answered the question in the negative by two separate but concurring judgments dated 28, March, 1952. 29. In paragraph 6 of the following was stated by this Court6. In order, however, that dividend may be held to be agricultural income it will be incumbent upon the appellant to show that, within the terms of the definition, it is rent or revenue derived from land which is used for agricultural purposes. Mr. Kolah, for the appellant, contends that it is revenue derived from land because 60% of the profits of the company out of which dividends are payable are referable to the pursuit of agricultural operations on the part of the company. It is true that the agricultural process renders 60% of the profits exempt from tax in the hands of the company from land which is used for agricultural purposes but can it be said that when such company decides to distribute its profits to the shareholders and declares the dividends to be allocated to them, such dividends in the hands of the shareholders also partake of the character of revenue derived from land which is used for agricultural purposes ? Such a position if accepted would extend the scope of the vital words revenue derived from land beyond its legitimate limits. Agricultural income as defined in the Act is obviously intended to refer to the revenue received by direct association with the land which is used for agricultural purposes and not by indirectly extending it to cases where that revenue or part thereof changes hands either by way of distribution of dividends or otherwise. In fact and truth dividends is derived from the investment made in the shares of the company and the foundation of it rests on the contractual relations between the company and the shareholder. Dividend is not derived by a shareholder by his direct relationship with the land. There can be no doubt that the initial source which has produced the revenue is land used for agricultural purposes but to give to the words revenue derived from land the unrestricted meaning apart from its direct association or relation with the land, would be quite unwarranted. For example, the proposition that a creditor advancing money on interest to an agriculturist and receiving interest out of the produce of the lands in the hands of the agriculturist can claim exemption of tax upon the ground that it is agricultural income within the meaning of section 4, sub-section (3) (viii), is hardly statable. The policy of the Act as gathered from the various sub-clauses of section 2(1) appears to be to exempt agricultural income from the purview of Income-tax Act. The object appears to be not to subject to tax either the actual tiller of the soil or any other person getting land cultivated by others for deriving benefit therefrom, but to say that the benefit intended to be conferred upon this class of persons should extend to those into whosoever hands that revenue falls, however remote the receiver of such revenue may be, is hardly warranted. 30. In The Commissioner of Income-Tax, Calcutta v. Nalin Behari Lal Singha, etc., 1969 (2) SCC 310 , this Court held that dividend distributed by a company being a share of its profits declared as distributable among the shareholders, is not impressed with the character of the profits from which it reaches the hands of the shareholder. Following was stated in paragraph 3:3...Dividend distributed by a company being a share of its profits declared as distributable among the shareholders, is not impressed with the character of the profits from which it reaches the hands of the shareholder. 31. Learned Single Judge of the Calcutta High Court relying on judgment of this Court in Mrs. Bacha F. Guzdar (supra) has dismissed the writ petition. The Division Bench of the Calcutta High Court, however, held that Single Judges decision relying on Mrs. Bacha F Guzdar (supra) was not correct preposition of law. 32. This Court in Mrs. Bacha F. Guzdar (supra) was considering the nature of dividend income in the hands of shareholders. Under the Income-tax Act, 1961 earlier the dividend was taxable at the hands of shareholder. By Finance Act, 1997 it was made taxable in the hand of company when additional tax was imposed. 33. This Court, however, while considering the nature of dividend in the above case held that although when the initial source which has produced the revenue is land used for agricultural purposes but to give to the words revenue derived from land, apart from its direct association or relation with the land, an unrestricted meaning shall be unwarranted. Again as noted above Nalin Behari Lal Singha (supra) observation was made that shares of its profits declared as distributable among the shareholders is not impressed with the character of the profit from which it reaches the hands of the shareholder. We, thus, find substances in the submission of the learned counsel for the Union of India that when the dividend is declared to be distributed and paid to companys shareholder it is not impressed with character of source of its income. 34. The provisions of Section 115-O are well within the competence of Parliament. To put any limitation in the said provision as held by the Calcutta High Court that additional tax can be levied only on the 40% of the dividend income shall be altering the provision of Section 115-O for which there is no warrant. The Calcutta High Court having upheld the vires of Section 115-O no further order was necessary in that writ petition.
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question referred by the Tribunal to the High Court of Judicature at Bombay was stated thus :Whether 60% of the dividend amounting to Rs. 2,750 - received by the assessee from the two Tea companies is agricultural income and as such exempt under section 4(3)(viii) of the ActChagla, C.J. and Tendolkar J., who heard the reference, answered the question in the negative by two separate but concurring judgments dated 28, March, 1952.. In paragraph 6 of the following was stated by this Court6. In order, however, that dividend may be held to be agricultural income it will be incumbent upon the appellant to show that, within the terms of the definition, it is rent or revenue derived from land which is used for agricultural purposes. Mr. Kolah, for the appellant, contends that it is revenue derived from land because 60% of the profits of the company out of which dividends are payable are referable to the pursuit of agricultural operations on the part of the company. It is true that the agricultural process renders 60% of the profits exempt from tax in the hands of the company from land which is used for agricultural purposes but can it be said that when such company decides to distribute its profits to the shareholders and declares the dividends to be allocated to them, such dividends in the hands of the shareholders also partake of the character of revenue derived from land which is used for agricultural purposes ?Such a position if accepted would extend the scope of the vital words revenue derived from land beyond its legitimate limits. Agricultural income as defined in the Act is obviously intended to refer to the revenue received by direct association with the land which is used for agricultural purposes and not by indirectly extending it to cases where that revenue or part thereof changes hands either by way of distribution of dividends or otherwise. In fact and truth dividends is derived from the investment made in the shares of the company and the foundation of it rests on the contractual relations between the company and the shareholder. Dividend is not derived by a shareholder by his direct relationship with the landThere can be no doubt that the initial source which has produced the revenue is land used for agricultural purposes but to give to the words revenue derived from land the unrestricted meaning apart from its direct association or relation with the land, would be quite unwarranted. For example, the proposition that a creditor advancing money on interest to an agriculturist and receiving interest out of the produce of the lands in the hands of the agriculturist can claim exemption of tax upon the ground that it is agricultural income within the meaning of section 4, sub-section (3) (viii), is hardly statableThe policy of the Act as gathered from the various sub-clauses of section 2(1) appears to be to exempt agricultural income from the purview of Income-tax Act. The object appears to be not to subject to tax either the actual tiller of the soil or any other person getting land cultivated by others for deriving benefit therefrom, but to say that the benefit intended to be conferred upon this class of persons should extend to those into whosoever hands that revenue falls, however remote the receiver of such revenue may be, is hardly warranted.. In The Commissioner of Income-Tax, Calcutta v. Nalin Behari Lal Singha, etc., 1969 (2) SCC 310 , this Court held that dividend distributed by a company being a share of its profits declared as distributable among the shareholders, is not impressed with the character of the profits from which it reaches the hands of the shareholder. Following was stated in paragraph 3:3...Dividend distributed by a company being a share of its profits declared as distributable among the shareholders, is not impressed with the character of the profits from which it reaches the hands of the shareholder.. Learned Single Judge of the Calcutta High Court relying on judgment of this Court in Mrs. Bacha F. Guzdar (supra) has dismissed the writ petition. The Division Bench of the Calcutta High Court, however, held that Single Judges decision relying on Mrs. Bacha F Guzdar (supra) was not correct preposition of law32. This Court in Mrs. Bacha F. Guzdar (supra) was considering the nature of dividend income in the hands of shareholders. Under the Income-tax Act, 1961 earlier the dividend was taxable at the hands of shareholder. By Finance Act, 1997 it was made taxable in the hand of company when additional tax was imposed33. This Court, however, while considering the nature of dividend in the above case held that although when the initial source which has produced the revenue is land used for agricultural purposes but to give to the words revenue derived from land, apart from its direct association or relation with the land, an unrestricted meaning shall be unwarranted. Again as noted above Nalin Behari Lal Singha (supra) observation was made that shares of its profits declared as distributable among the shareholders is not impressed with the character of the profit from which it reaches the hands of the shareholder. We, thus, find substances in the submission of the learned counsel for the Union of India that when the dividend is declared to be distributed and paid to companys shareholder it is not impressed with character of source of its income34. The provisions of Section 115-O are well within the competence of Parliament. To put any limitation in the said provision as held by the Calcutta High Court that additional tax can be levied only on the 40% of the dividend income shall be altering the provision of Section 115-O for which there is no warrant. The Calcutta High Court having upheld the vires of Section 115-O no further order was necessary in that writ petition.The word income has also been defined in the Income-tax Act in Section 2(24) which is to the following effect:2(24) income includes(i) profits and gains;
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Awani Kumar Upadhyay Vs. Hon.High Court Of Jud.At Allahabad &Ors | to the appellant, by making such remarks and that too behind his back, are not warranted. Here again, after adverting to the earlier decisions and principles enunciated therein, this Court expunged the offending remarks made against the appellant and allowed the appeal filed by him." 7) Apart from the above decision, in an identical circumstance, this Court has expunged adverse remarks made against a judicial officer in Amar Pal Singh vs. State of Uttar Pradesh and Another, (2012) 6 SCC 491. The appellant therein, a judicial officer, being aggrieved by the comments and observations passed by the learned Single Judge of the High Court of Judicature of Allahabad in Sunil Solanki vs. State of U.P (Criminal Revision No. 1541 of 2007, order dated 31.05.2007) has preferred an appeal before this Court. In this case, one Sunil Solanki had filed an application under Section 156(3) of the Code of Criminal Procedure, 1973 before the CJM, Bulandshahar with the allegation that on 11.02.2007 at 9.30 p.m. when he was standing outside the front door of his house along with some others, a marriage procession passed from in front of the door of his house and at that juncture, one Mauzzim Ali accosted him and eventually fired at him from his country-made pistol which caused injuries in the abdomen area of Shafeeque, one of his friends. However, he escaped unhurt. Because of the said occurrence, Sunil Solanki endeavoured hard to get the FIR registered at the police station concerned but the entire effort became an exercise in futility as a consequence of which he was compelled to knock at the doors of the learned CJM by filing an application under Section 156(3) of the Code for issuance of a direction to the police to register an FIR and investigate the matter. While dealing with the application, the Chief Judicial Magistrate, the appellant in that appeal, ascribed certain reasons and dismissed the same. 8) Being dissatisfied, the appellant therein preferred a revision before the High Court and the learned Single Judge, taking note of the allegations made in the application, found that it was a fit case where the learned Magistrate should have directed the registration of FIR and investigation into the alleged offences. While recording such a conclusion, the learned single Judge has made certain observations which are reproduced below: “This conduct of the Chief Judicial Magistrate is deplorable and wholly mala fide and illegal.” Thereafter, the learned single Judge treated the order to be wholly hypothetical and commented it was: “Vexatiously illegal.” After stating so the learned single Judge further stated that the Chief Judicial Magistrate has committed a blatant error of law. Thereafter, he further commented: “… and has done unpardonable injustice to the injured and the informant. His lack of sensitivity and utter callous attitude has left the accused of murderous assault to go scot-free to this day”. 9) After making the aforesaid observations, the learned Single Judge set aside the order and remitted the matter to the Chief Judicial Magistrate to decide the application afresh in accordance with law. Thereafter, he directed as follows: “Let a copy of this order be sent to the Administrative Judge, Bulandshahar to take appropriate action against the CJM concerned as he deems fit.” 10) Aggrieved by the said direction, the appellant therein approached this Court by way of a special leave petition to delete the aforesaid comments, observations and the ultimate direction. 11) After referring all the various earlier decisions of this Court on this point expunged the remarks and set aside the said observation/comments and the direction made against the judicial officer. This Court also directed that if the said remarks have been entered into the annual confidential roll of the judicial officer, the same shall stand expunged and also marked a copy of the judgment to the Registrar General of the High Court, Allahabad to be placed on the personal file of the judicial officer concerned.12) It is made clear that we are not undermining the ultimate decision of the High Court on merits. However, we are constrained to observe that the higher courts every day come across orders of the lower courts which are not justified either in law or in fact and modify them or set them aside. Our legal system acknowledges the fallibility of the Judges, hence it provides appeals and revisions. Inasmuch as the lower judicial officers mostly work under a charged atmosphere and are constantly under psychological pressure and they do not have the facilities which are available in the higher courts, we are of the view that the remarks/observations and strictures are to be avoided particularly if the officer has no occasion to put-forth his reasonings. Further, if the passage complained of is wholly irrelevant and unjustifiable and its retention on the records will cause serious harm to the persons to whom it refers and its expunction will not affect the reasons for the judgment or order, request for expunging those remarks are to be allowed. We, once again, reiterate that harsh or disparaging remarks are not to be made against judicial officers and authorities whose conduct comes into consideration before courts of law unless it is really for the decision of the case as an integral part thereof.13) We hold that the adverse remarks made against the appellant were neither justified nor called for. The perusal of the impugned judgment would show that the word “severe strictures” is mentioned whereas no logical reasoning has been given as to what is the fault of the appellant and the High Court has not adduced any finding as to why it has disagreed with the reasoning given by the appellant particularly when the appellant asserted that neither he has rendered any decision as trial Court Judge nor as the first Appellate Court Judge except deciding 12 additional issues on the directions issued by his predecessor. The strictures passed against the appellant are neither warranted nor is in conformity with the settled law as propounded by this Court. | 1[ds]11) After referring all the various earlier decisions of this Court on this point expunged the remarks and set aside the said observation/comments and the direction made against the judicial officer. This Court also directed that if the said remarks have been entered into the annual confidential roll of the judicial officer, the same shall stand expunged and also marked a copy of the judgment to the Registrar General of the High Court, Allahabad to be placed on the personal file of the judicial officer concerned.12) It is made clear that we are not undermining the ultimate decision of the High Court on merits. However, we are constrained to observe that the higher courts every day come across orders of the lower courts which are not justified either in law or in fact and modify them or set them aside. Our legal system acknowledges the fallibility of the Judges, hence it provides appeals and revisions. Inasmuch as the lower judicial officers mostly work under a charged atmosphere and are constantly under psychological pressure and they do not have the facilities which are available in the higher courts, we are of the view that the remarks/observations and strictures are to be avoided particularly if the officer has no occasion to put-forth his reasonings. Further, if the passage complained of is wholly irrelevant and unjustifiable and its retention on the records will cause serious harm to the persons to whom it refers and its expunction will not affect the reasons for the judgment or order, request for expunging those remarks are to be allowed. We, once again, reiterate that harsh or disparaging remarks are not to be made against judicial officers and authorities whose conduct comes into consideration before courts of law unless it is really for the decision of the case as an integral part thereof.13) We hold that the adverse remarks made against the appellant were neither justified nor called for. The perusal of the impugned judgment would show that the wordis mentioned whereas no logical reasoning has been given as to what is the fault of the appellant and the High Court has not adduced any finding as to why it has disagreed with the reasoning given by the appellant particularly when the appellant asserted that neither he has rendered any decision as trial Court Judge nor as the first Appellate Court Judge except deciding 12 additional issues on the directions issued by his predecessor. The strictures passed against the appellant are neither warranted nor is in conformity with the settled law as propounded by this Court. | 1 | 2,369 | 453 | ### Instruction:
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to the appellant, by making such remarks and that too behind his back, are not warranted. Here again, after adverting to the earlier decisions and principles enunciated therein, this Court expunged the offending remarks made against the appellant and allowed the appeal filed by him." 7) Apart from the above decision, in an identical circumstance, this Court has expunged adverse remarks made against a judicial officer in Amar Pal Singh vs. State of Uttar Pradesh and Another, (2012) 6 SCC 491. The appellant therein, a judicial officer, being aggrieved by the comments and observations passed by the learned Single Judge of the High Court of Judicature of Allahabad in Sunil Solanki vs. State of U.P (Criminal Revision No. 1541 of 2007, order dated 31.05.2007) has preferred an appeal before this Court. In this case, one Sunil Solanki had filed an application under Section 156(3) of the Code of Criminal Procedure, 1973 before the CJM, Bulandshahar with the allegation that on 11.02.2007 at 9.30 p.m. when he was standing outside the front door of his house along with some others, a marriage procession passed from in front of the door of his house and at that juncture, one Mauzzim Ali accosted him and eventually fired at him from his country-made pistol which caused injuries in the abdomen area of Shafeeque, one of his friends. However, he escaped unhurt. Because of the said occurrence, Sunil Solanki endeavoured hard to get the FIR registered at the police station concerned but the entire effort became an exercise in futility as a consequence of which he was compelled to knock at the doors of the learned CJM by filing an application under Section 156(3) of the Code for issuance of a direction to the police to register an FIR and investigate the matter. While dealing with the application, the Chief Judicial Magistrate, the appellant in that appeal, ascribed certain reasons and dismissed the same. 8) Being dissatisfied, the appellant therein preferred a revision before the High Court and the learned Single Judge, taking note of the allegations made in the application, found that it was a fit case where the learned Magistrate should have directed the registration of FIR and investigation into the alleged offences. While recording such a conclusion, the learned single Judge has made certain observations which are reproduced below: “This conduct of the Chief Judicial Magistrate is deplorable and wholly mala fide and illegal.” Thereafter, the learned single Judge treated the order to be wholly hypothetical and commented it was: “Vexatiously illegal.” After stating so the learned single Judge further stated that the Chief Judicial Magistrate has committed a blatant error of law. Thereafter, he further commented: “… and has done unpardonable injustice to the injured and the informant. His lack of sensitivity and utter callous attitude has left the accused of murderous assault to go scot-free to this day”. 9) After making the aforesaid observations, the learned Single Judge set aside the order and remitted the matter to the Chief Judicial Magistrate to decide the application afresh in accordance with law. Thereafter, he directed as follows: “Let a copy of this order be sent to the Administrative Judge, Bulandshahar to take appropriate action against the CJM concerned as he deems fit.” 10) Aggrieved by the said direction, the appellant therein approached this Court by way of a special leave petition to delete the aforesaid comments, observations and the ultimate direction. 11) After referring all the various earlier decisions of this Court on this point expunged the remarks and set aside the said observation/comments and the direction made against the judicial officer. This Court also directed that if the said remarks have been entered into the annual confidential roll of the judicial officer, the same shall stand expunged and also marked a copy of the judgment to the Registrar General of the High Court, Allahabad to be placed on the personal file of the judicial officer concerned.12) It is made clear that we are not undermining the ultimate decision of the High Court on merits. However, we are constrained to observe that the higher courts every day come across orders of the lower courts which are not justified either in law or in fact and modify them or set them aside. Our legal system acknowledges the fallibility of the Judges, hence it provides appeals and revisions. Inasmuch as the lower judicial officers mostly work under a charged atmosphere and are constantly under psychological pressure and they do not have the facilities which are available in the higher courts, we are of the view that the remarks/observations and strictures are to be avoided particularly if the officer has no occasion to put-forth his reasonings. Further, if the passage complained of is wholly irrelevant and unjustifiable and its retention on the records will cause serious harm to the persons to whom it refers and its expunction will not affect the reasons for the judgment or order, request for expunging those remarks are to be allowed. We, once again, reiterate that harsh or disparaging remarks are not to be made against judicial officers and authorities whose conduct comes into consideration before courts of law unless it is really for the decision of the case as an integral part thereof.13) We hold that the adverse remarks made against the appellant were neither justified nor called for. The perusal of the impugned judgment would show that the word “severe strictures” is mentioned whereas no logical reasoning has been given as to what is the fault of the appellant and the High Court has not adduced any finding as to why it has disagreed with the reasoning given by the appellant particularly when the appellant asserted that neither he has rendered any decision as trial Court Judge nor as the first Appellate Court Judge except deciding 12 additional issues on the directions issued by his predecessor. The strictures passed against the appellant are neither warranted nor is in conformity with the settled law as propounded by this Court.
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11) After referring all the various earlier decisions of this Court on this point expunged the remarks and set aside the said observation/comments and the direction made against the judicial officer. This Court also directed that if the said remarks have been entered into the annual confidential roll of the judicial officer, the same shall stand expunged and also marked a copy of the judgment to the Registrar General of the High Court, Allahabad to be placed on the personal file of the judicial officer concerned.12) It is made clear that we are not undermining the ultimate decision of the High Court on merits. However, we are constrained to observe that the higher courts every day come across orders of the lower courts which are not justified either in law or in fact and modify them or set them aside. Our legal system acknowledges the fallibility of the Judges, hence it provides appeals and revisions. Inasmuch as the lower judicial officers mostly work under a charged atmosphere and are constantly under psychological pressure and they do not have the facilities which are available in the higher courts, we are of the view that the remarks/observations and strictures are to be avoided particularly if the officer has no occasion to put-forth his reasonings. Further, if the passage complained of is wholly irrelevant and unjustifiable and its retention on the records will cause serious harm to the persons to whom it refers and its expunction will not affect the reasons for the judgment or order, request for expunging those remarks are to be allowed. We, once again, reiterate that harsh or disparaging remarks are not to be made against judicial officers and authorities whose conduct comes into consideration before courts of law unless it is really for the decision of the case as an integral part thereof.13) We hold that the adverse remarks made against the appellant were neither justified nor called for. The perusal of the impugned judgment would show that the wordis mentioned whereas no logical reasoning has been given as to what is the fault of the appellant and the High Court has not adduced any finding as to why it has disagreed with the reasoning given by the appellant particularly when the appellant asserted that neither he has rendered any decision as trial Court Judge nor as the first Appellate Court Judge except deciding 12 additional issues on the directions issued by his predecessor. The strictures passed against the appellant are neither warranted nor is in conformity with the settled law as propounded by this Court.
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Munshi Muqbool Raza Vs. Hasan Raza | CHANDRACHUD, J.1. The appellant filed suit 275 of 1949 in the Munsifs Court, Badaun, against the respondent for recovering possession of plots Nos. 231 and 289 admeasuring about 7 bighas and situated in the village of Khakholi, District Badaun. The suit was filed on the allegation that Mst. Aqila Khatoon, who was the original owner of the plots, had leased them out to the appellant but that the respondent trespassed on the plots by procuring a false, entry in the village records in the year 1356 Fasli. The suit was resisted by the respondent on the plea that he was in possession of the plots as a tenant since 1352 Fasli, and therefore, the plaintiff had no right to evict him from the plots. The U. P. Zamindari Abolition and Land Reforms Act, I of 1951, came into force during the pendency of the suit upon which the respondent raised an additional contention that he was in possession of the plots as a sub-tenant.2. The trial Court decreed the suit for possession and for damages holding that the respondent had no right to remain in possession of the plots. That judgment was confirmed in appeal by the learned District Judge Badaun. Stated briefly, the learned Judge held that the entires in the Revenue record, which purported to show that the respondent was in possession of the plots, did not reflect a true state of affairs, and, therefore, the respondent was liable to be evicted.3. The respondent then filed second appeal 431 of 1955 in the Allahabad High Court, which was allowed on February 27, 1968. This appeal by special leave is directed against that judgment.4. It appears that in consequence of the decree passed by the District Court on November 22, 1954 confirming the judgment of the trial Court, the appellant obtained possession of other suit plots sometime in December, 1954. The Special Leave Petition, filed by the appellant shows that after he obtained possession of the plots, the respondent filed a suit under the Act of 1951 in the Revenue Court, alleging that he, the respondent, was an Adhivasi of the plots and, therefore, the decree of the Civil Court dispossessing him was illegal and without jurisdiction. That suit was decreed by the Revenue Court on June 17, 1955 which held that the decree passed by the Civil Court was a nullity and, therefore, the respondent was entitled to restoration of possession.5. If further appears that in 1959, the area in which the plots are situated came under the purview of the U. P. Consolidation of Holdings Act, 5 of 1954, and thereupon the respondent made an application that his name should be recorded as a Sirdar in respect of the disputed plots. In those proceedings also, the Consolidation Authorities held that the civil Court had wrongly assumed jurisdiction in the suit filed by the appellant and that the decree passed therein was not binding on the Consolidation Authorities. Those Authorities held on an application filed by the respondent that he had become an Adhivasi under Section 3 of the Zamindari Abolition act, 1951 and that, therefore, he was entitled to remain in possession of the plots. Having exhausted the duly appointed remedies before the Consolidation Authorities, the appellant filed writ petition 3106 of 1962 in the High Court of Allahabad, which was dismissed by a full bench of that Court on September 11, 1967.6. By reasons of the various developments to which we have referred above, the appellant cannot claim possession of the suit property from the respondent. The first difficulty in the ways of the appellant is that Section 5 of the U. P. Consolidation of Holdings Act, as amended by Act 21 of 1966, provides by sub-section (2) (a) that every suit in respect of any right or interest in any land in the area in regard to which proceedings can or ought to be taken under the Act, pending before any Court or Authority whether of the first instance or of appeal, shall stand abated. Upholding the validity of that section, this Court in Ram Adhar Singh v. Ramroop Singh [(1968) 2 SCR 95 : AIR 1968 SC 714 ], accepted the contention that the appeal pending before it had abated by reason of Section 5 (2) (a). Thus, the suit filed by the appellant stands abated.7. The other difficulty in the way of the appellant is that he was directed by the High Court to take recourse to Consolidation Authorities in regard to his alleged rights, while the second appeal was pending in the High Court. He exhausted those remedies, challenged the ultimate decision by filing a writ petition in the High Court and even that writ petition failed. He cannot, then, reagitate the same questions once over again in the second appeal. Those questions stand finally concluded by the decision recorded in the writ petition.8. Section 231 read with Section 234 of the Act of 1951 furnishes an additional ground for the respondent to resist the appellants claim. By Section 231, in so far as it is relevant, an Adhivasi continues to have all the rights and liabilities which he possessed on the date immediately preceding the date of vesting, except as provided in Sections 233 and 234. We are not concerned in the instant case with Section 233, but Section 234 provides that an Adhivasi shall be liable to ejectment from the land held by him on the grounds mentioned in that section. By reason of the provisions contained in Section 235 and Adhivasi is liable to be ejected on the ground mentioned in Section 234 only and on no other grounds. | 0[ds]6. By reasons of the various developments to which we have referred above, the appellant cannot claim possession of the suit property from the respondent. The first difficulty in the ways of the appellant is that Section 5 of the U. P. Consolidation of Holdings Act, as amended by Act 21 of 1966, provides by(2) (a) that every suit in respect of any right or interest in any land in the area in regard to which proceedings can or ought to be taken under the Act, pending before any Court or Authority whether of the first instance or of appeal, shall stand abated. Upholding the validity of that section, this Court in Ram Adhar Singh v. Ramroop Singh [(1968) 2 SCR 95 : AIR 1968 SC 714 ], accepted the contention that the appeal pending before it had abated by reason of Section 5 (2) (a). Thus, the suit filed by the appellant stands abated.7. The other difficulty in the way of the appellant is that he was directed by the High Court to take recourse to Consolidation Authorities in regard to his alleged rights, while the second appeal was pending in the High Court. He exhausted those remedies, challenged the ultimate decision by filing a writ petition in the High Court and even that writ petition failed. He cannot, then, reagitate the same questions once over again in the second appeal. Those questions stand finally concluded by the decision recorded in the writ petition.8. Section 231 read with Section 234 of the Act of 1951 furnishes an additional ground for the respondent to resist the appellants claim. By Section 231, in so far as it is relevant, an Adhivasi continues to have all the rights and liabilities which he possessed on the date immediately preceding the date of vesting, except as provided in Sections 233 and 234. We are not concerned in the instant case with Section 233, but Section 234 provides that an Adhivasi shall be liable to ejectment from the land held by him on the grounds mentioned in that section. By reason of the provisions contained in Section 235 and Adhivasi is liable to be ejected on the ground mentioned in Section 234 only and on no other grounds. | 0 | 1,042 | 420 | ### 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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CHANDRACHUD, J.1. The appellant filed suit 275 of 1949 in the Munsifs Court, Badaun, against the respondent for recovering possession of plots Nos. 231 and 289 admeasuring about 7 bighas and situated in the village of Khakholi, District Badaun. The suit was filed on the allegation that Mst. Aqila Khatoon, who was the original owner of the plots, had leased them out to the appellant but that the respondent trespassed on the plots by procuring a false, entry in the village records in the year 1356 Fasli. The suit was resisted by the respondent on the plea that he was in possession of the plots as a tenant since 1352 Fasli, and therefore, the plaintiff had no right to evict him from the plots. The U. P. Zamindari Abolition and Land Reforms Act, I of 1951, came into force during the pendency of the suit upon which the respondent raised an additional contention that he was in possession of the plots as a sub-tenant.2. The trial Court decreed the suit for possession and for damages holding that the respondent had no right to remain in possession of the plots. That judgment was confirmed in appeal by the learned District Judge Badaun. Stated briefly, the learned Judge held that the entires in the Revenue record, which purported to show that the respondent was in possession of the plots, did not reflect a true state of affairs, and, therefore, the respondent was liable to be evicted.3. The respondent then filed second appeal 431 of 1955 in the Allahabad High Court, which was allowed on February 27, 1968. This appeal by special leave is directed against that judgment.4. It appears that in consequence of the decree passed by the District Court on November 22, 1954 confirming the judgment of the trial Court, the appellant obtained possession of other suit plots sometime in December, 1954. The Special Leave Petition, filed by the appellant shows that after he obtained possession of the plots, the respondent filed a suit under the Act of 1951 in the Revenue Court, alleging that he, the respondent, was an Adhivasi of the plots and, therefore, the decree of the Civil Court dispossessing him was illegal and without jurisdiction. That suit was decreed by the Revenue Court on June 17, 1955 which held that the decree passed by the Civil Court was a nullity and, therefore, the respondent was entitled to restoration of possession.5. If further appears that in 1959, the area in which the plots are situated came under the purview of the U. P. Consolidation of Holdings Act, 5 of 1954, and thereupon the respondent made an application that his name should be recorded as a Sirdar in respect of the disputed plots. In those proceedings also, the Consolidation Authorities held that the civil Court had wrongly assumed jurisdiction in the suit filed by the appellant and that the decree passed therein was not binding on the Consolidation Authorities. Those Authorities held on an application filed by the respondent that he had become an Adhivasi under Section 3 of the Zamindari Abolition act, 1951 and that, therefore, he was entitled to remain in possession of the plots. Having exhausted the duly appointed remedies before the Consolidation Authorities, the appellant filed writ petition 3106 of 1962 in the High Court of Allahabad, which was dismissed by a full bench of that Court on September 11, 1967.6. By reasons of the various developments to which we have referred above, the appellant cannot claim possession of the suit property from the respondent. The first difficulty in the ways of the appellant is that Section 5 of the U. P. Consolidation of Holdings Act, as amended by Act 21 of 1966, provides by sub-section (2) (a) that every suit in respect of any right or interest in any land in the area in regard to which proceedings can or ought to be taken under the Act, pending before any Court or Authority whether of the first instance or of appeal, shall stand abated. Upholding the validity of that section, this Court in Ram Adhar Singh v. Ramroop Singh [(1968) 2 SCR 95 : AIR 1968 SC 714 ], accepted the contention that the appeal pending before it had abated by reason of Section 5 (2) (a). Thus, the suit filed by the appellant stands abated.7. The other difficulty in the way of the appellant is that he was directed by the High Court to take recourse to Consolidation Authorities in regard to his alleged rights, while the second appeal was pending in the High Court. He exhausted those remedies, challenged the ultimate decision by filing a writ petition in the High Court and even that writ petition failed. He cannot, then, reagitate the same questions once over again in the second appeal. Those questions stand finally concluded by the decision recorded in the writ petition.8. Section 231 read with Section 234 of the Act of 1951 furnishes an additional ground for the respondent to resist the appellants claim. By Section 231, in so far as it is relevant, an Adhivasi continues to have all the rights and liabilities which he possessed on the date immediately preceding the date of vesting, except as provided in Sections 233 and 234. We are not concerned in the instant case with Section 233, but Section 234 provides that an Adhivasi shall be liable to ejectment from the land held by him on the grounds mentioned in that section. By reason of the provisions contained in Section 235 and Adhivasi is liable to be ejected on the ground mentioned in Section 234 only and on no other grounds.
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6. By reasons of the various developments to which we have referred above, the appellant cannot claim possession of the suit property from the respondent. The first difficulty in the ways of the appellant is that Section 5 of the U. P. Consolidation of Holdings Act, as amended by Act 21 of 1966, provides by(2) (a) that every suit in respect of any right or interest in any land in the area in regard to which proceedings can or ought to be taken under the Act, pending before any Court or Authority whether of the first instance or of appeal, shall stand abated. Upholding the validity of that section, this Court in Ram Adhar Singh v. Ramroop Singh [(1968) 2 SCR 95 : AIR 1968 SC 714 ], accepted the contention that the appeal pending before it had abated by reason of Section 5 (2) (a). Thus, the suit filed by the appellant stands abated.7. The other difficulty in the way of the appellant is that he was directed by the High Court to take recourse to Consolidation Authorities in regard to his alleged rights, while the second appeal was pending in the High Court. He exhausted those remedies, challenged the ultimate decision by filing a writ petition in the High Court and even that writ petition failed. He cannot, then, reagitate the same questions once over again in the second appeal. Those questions stand finally concluded by the decision recorded in the writ petition.8. Section 231 read with Section 234 of the Act of 1951 furnishes an additional ground for the respondent to resist the appellants claim. By Section 231, in so far as it is relevant, an Adhivasi continues to have all the rights and liabilities which he possessed on the date immediately preceding the date of vesting, except as provided in Sections 233 and 234. We are not concerned in the instant case with Section 233, but Section 234 provides that an Adhivasi shall be liable to ejectment from the land held by him on the grounds mentioned in that section. By reason of the provisions contained in Section 235 and Adhivasi is liable to be ejected on the ground mentioned in Section 234 only and on no other grounds.
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Commissioner of Income Tax/Excess Profits Tax, Bombay City Vs. Shamsher Printing Press | such goodwill and nothing could therefore have been paid in respect of it.This seems to us to be an argument of substance and we did not understand learned counsel for the respondent to contend to the contrary. What he said was that there was a claim for a loss to the goodwill.6. We turn now to the words in which the claim was made which we have earlier set out. There is no mention of any loss to goodwill there. It is said on behalf of the respondent that the claim was for "compulsory vacation of the premises and also for "disturbance and loss of business and that the claim for "compulsory vacation of the premises" was for the injury to the goodwill. That indeed would be a strange way of making a claim for loss of goodwill. There is a claim for loss of business in express terms and this was computed at two years loss of profits. Why was loss of business claimed? Clearly, because the business would be stopped or disturbed for some time by the compulsory vacation of the premises. That would make the claim as framed sensible. It would then be a claim for one thing only, namely, for loss of profits. The Department says that that is all that was claimed. It is difficult to hold that the claim so framed was, as the respondent contends, for three things, namely, (a) compulsory vacation of premises, (b) disturbance of business and (c) loss of business. If three things were claimed all could not have been together computed by one measure of two years loss of profit as was done. The claim for loss of business would have been without any particulars as to how the loss was said to have been occasioned and this could thirdly have been intended. It is reasonable to think that the compulsory vacation of the premises was mentioned as explaining how the disturbance and loss of business had been occasioned for which a claim had admittedly been made.7. The matter is put beyond doubt when one turns to the letter which accompanied and explained the respondents claim. Referring to the claim under consideration, the letter stated."If we take a fresh construction of our factory on temporary basis, this means time and therefore one of the biggest items in the "Details of Claim has got to be included.Now the biggest item of claim is the item under consideration. It was further stated in that letter :"As a result of the evacuation and in the absence of any premises we have been forced to warehouse our machines which are now idle and unproductive . . . . . . unless we are reinstated immediately in some temporary place and given electric connection and given the other facilities, we estimate that our business will suffer at least for a period of two years and we have gauged that item on that basis."There is no hint whatsoever anywhere in this letter that the respondent intended to make any claim from any loss of goodwill. It is perfectly plain that it was only claiming loss of profit for two years during which it did not except to be able to restart its business.8. We do not think that the Tribunal came to any contrary finding. It, no doubt, said "Really speaking the payment is on account of the compulsory vacation of the premises". That does not show that the Tribunal thought that the payment was on account of loss of goodwill. This observation was made because the Tribunal found that it had not been proved that the respondent had actually suffered and loss. No question of actual proof of loss arose for making the claim. That is why the Tribunal said that the payment was on account of compulsory vacation of premises; from such vacation a loss of profit might reasonably be presumed. The Tribunal does not mention any loss of goodwill at all and no question of any such loss appears to have been raised either in the Tribunal or the High Court.9. We think we ought to refer to another part of the respondents letter earlier mentioned, to which our attention was drawn. There it is stated :"When we think of our competitors in the open market who would go far ahead on account of our absence we feel we shall have a strong uphill struggle whilst re-establishing ourselves when we have reached the normal stage of business."It is said this shows that the respondent was claiming for loss of goodwill. That seems to us quite untenable a contention. No goodwill is referred to. All that is said here is that competitors would go ahead while the respondents business remained stopped. Now that has nothing to do with loss of goodwill. It is only concerned with the stoppage of the respondents business irrespective of its removal from one premises to another. Further, this statement was not in connection with any claim actually made. It could only, if at all, be taken as referring to claim for loss of profits. We, therefore, do not think that this portion of the respondents letter helps it.10. It seems to us for the reasons aforesaid that the sum of Rs. 57,435/- had not been received by the respondent for any injury to any of its capital assets. In our view, the sum was received as compensation for loss of profits for the period during which, it was imagined, the respondents business would remain stopped before it could be restarted at a new premises. That being so, it was clearly a revenue receipt, it has not been disputed that if the amount in question was paid as compensation for loss of profit, it would be a revenue receipt and liable to tax. As it was a trading receipt it cannot be held exempt from tax under S. 4(3)(vii) of the Income-tax Act either. In the result we answer both the questions framed in this case in the negative. | 1[ds]5. It is not disputed on behalf of the Department that such a goodwill would be a capital asset. The Department contends that there was no claim for injury to any such goodwill. It says, we think rightly, that goodwill is a question of fact. It may exist, it may not exist: see Hill v. Fearis, (1905) 1 Ch 466. The department does not contend that the existence of the goodwill had to be proved.What it says is that since it does not follow that every business has a goodwill, a loss to such goodwill has at least to be claimed and in the absence of such a claim it would follow that there was no such goodwill and nothing could therefore have been paid in respect of it.This seems to us to be an argument of substance and we did not understand learned counsel for the respondent to contend to the contrary. What he said was that there was a claim for a loss to the goodwill.6. We turn now to the words in which the claim was made which we have earlier set out. There is no mention of any loss to goodwill there. It is said on behalf of the respondent that the claim was for "compulsory vacation of the premises and also for "disturbance and loss of business and that the claim for "compulsory vacation of the premises" was for the injury to the goodwill. That indeed would be a strange way of making a claim for loss of goodwill. There is a claim for loss of business in express terms and this was computed at two years loss of profits. Why was loss of business claimed? Clearly, because the business would be stopped or disturbed for some time by the compulsory vacation of the premises. That would make the claim as framed sensible. It would then be a claim for one thing only, namely, for loss of profits. The Department says that that is all that was claimed. It is difficult to hold that the claim so framed was, as the respondent contends, for three things, namely, (a) compulsory vacation of premises, (b) disturbance of business and (c) loss of business. If three things were claimed all could not have been together computed by one measure of two years loss of profit as was done. The claim for loss of business would have been without any particulars as to how the loss was said to have been occasioned and this could thirdly have been intended. It is reasonable to think that the compulsory vacation of the premises was mentioned as explaining how the disturbance and loss of business had been occasioned for which a claim had admittedly been made.We do not think that the Tribunal came to any contrary finding. It, no doubt, said "Really speaking the payment is on account of the compulsory vacation of the premises". That does not show that the Tribunal thought that the payment was on account of loss of goodwill. This observation was made because the Tribunal found that it had not been proved that the respondent had actually suffered and loss. No question of actual proof of loss arose for making the claim.We think we ought to refer to another part of the respondents letter earlier mentioned, to which our attention was drawn. There it is statedwe think of our competitors in the open market who would go far ahead on account of our absence we feel we shall have a strong uphill struggle whilstourselves when we have reached the normal stage ofis said this shows that the respondent was claiming for loss of goodwill. That seems to us quite untenable a contention. No goodwill is referred to. All that is said here is that competitors would go ahead while the respondents business remained stopped. Now that has nothing to do with loss of goodwill. It is only concerned with the stoppage of the respondents business irrespective of its removal from one premises to another. Further, this statement was not in connection with any claim actually made. It could only, if at all, be taken as referring to claim for loss of profits. We, therefore, do not think that this portion of the respondents letter helps it.10. It seems to us for the reasons aforesaid that the sum of Rs. 57,435/had not been received by the respondent for any injury to any of its capital assets. In our view, the sum was received as compensation for loss of profits for the period during which, it was imagined, the respondents business would remain stopped before it could be restarted at a new premises. That being so, it was clearly a revenue receipt, it has not been disputed that if the amount in question was paid as compensation for loss of profit, it would be a revenue receipt and liable to tax. As it was a trading receipt it cannot be held exempt from tax under S. 4(3)(vii) of theAct either. In the result we answer both the questions framed in this case in the negative.11. This appeal is therefore allowed with costs. | 1 | 1,704 | 947 | ### 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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such goodwill and nothing could therefore have been paid in respect of it.This seems to us to be an argument of substance and we did not understand learned counsel for the respondent to contend to the contrary. What he said was that there was a claim for a loss to the goodwill.6. We turn now to the words in which the claim was made which we have earlier set out. There is no mention of any loss to goodwill there. It is said on behalf of the respondent that the claim was for "compulsory vacation of the premises and also for "disturbance and loss of business and that the claim for "compulsory vacation of the premises" was for the injury to the goodwill. That indeed would be a strange way of making a claim for loss of goodwill. There is a claim for loss of business in express terms and this was computed at two years loss of profits. Why was loss of business claimed? Clearly, because the business would be stopped or disturbed for some time by the compulsory vacation of the premises. That would make the claim as framed sensible. It would then be a claim for one thing only, namely, for loss of profits. The Department says that that is all that was claimed. It is difficult to hold that the claim so framed was, as the respondent contends, for three things, namely, (a) compulsory vacation of premises, (b) disturbance of business and (c) loss of business. If three things were claimed all could not have been together computed by one measure of two years loss of profit as was done. The claim for loss of business would have been without any particulars as to how the loss was said to have been occasioned and this could thirdly have been intended. It is reasonable to think that the compulsory vacation of the premises was mentioned as explaining how the disturbance and loss of business had been occasioned for which a claim had admittedly been made.7. The matter is put beyond doubt when one turns to the letter which accompanied and explained the respondents claim. Referring to the claim under consideration, the letter stated."If we take a fresh construction of our factory on temporary basis, this means time and therefore one of the biggest items in the "Details of Claim has got to be included.Now the biggest item of claim is the item under consideration. It was further stated in that letter :"As a result of the evacuation and in the absence of any premises we have been forced to warehouse our machines which are now idle and unproductive . . . . . . unless we are reinstated immediately in some temporary place and given electric connection and given the other facilities, we estimate that our business will suffer at least for a period of two years and we have gauged that item on that basis."There is no hint whatsoever anywhere in this letter that the respondent intended to make any claim from any loss of goodwill. It is perfectly plain that it was only claiming loss of profit for two years during which it did not except to be able to restart its business.8. We do not think that the Tribunal came to any contrary finding. It, no doubt, said "Really speaking the payment is on account of the compulsory vacation of the premises". That does not show that the Tribunal thought that the payment was on account of loss of goodwill. This observation was made because the Tribunal found that it had not been proved that the respondent had actually suffered and loss. No question of actual proof of loss arose for making the claim. That is why the Tribunal said that the payment was on account of compulsory vacation of premises; from such vacation a loss of profit might reasonably be presumed. The Tribunal does not mention any loss of goodwill at all and no question of any such loss appears to have been raised either in the Tribunal or the High Court.9. We think we ought to refer to another part of the respondents letter earlier mentioned, to which our attention was drawn. There it is stated :"When we think of our competitors in the open market who would go far ahead on account of our absence we feel we shall have a strong uphill struggle whilst re-establishing ourselves when we have reached the normal stage of business."It is said this shows that the respondent was claiming for loss of goodwill. That seems to us quite untenable a contention. No goodwill is referred to. All that is said here is that competitors would go ahead while the respondents business remained stopped. Now that has nothing to do with loss of goodwill. It is only concerned with the stoppage of the respondents business irrespective of its removal from one premises to another. Further, this statement was not in connection with any claim actually made. It could only, if at all, be taken as referring to claim for loss of profits. We, therefore, do not think that this portion of the respondents letter helps it.10. It seems to us for the reasons aforesaid that the sum of Rs. 57,435/- had not been received by the respondent for any injury to any of its capital assets. In our view, the sum was received as compensation for loss of profits for the period during which, it was imagined, the respondents business would remain stopped before it could be restarted at a new premises. That being so, it was clearly a revenue receipt, it has not been disputed that if the amount in question was paid as compensation for loss of profit, it would be a revenue receipt and liable to tax. As it was a trading receipt it cannot be held exempt from tax under S. 4(3)(vii) of the Income-tax Act either. In the result we answer both the questions framed in this case in the negative.
### Response:
1
### Explanation:
5. It is not disputed on behalf of the Department that such a goodwill would be a capital asset. The Department contends that there was no claim for injury to any such goodwill. It says, we think rightly, that goodwill is a question of fact. It may exist, it may not exist: see Hill v. Fearis, (1905) 1 Ch 466. The department does not contend that the existence of the goodwill had to be proved.What it says is that since it does not follow that every business has a goodwill, a loss to such goodwill has at least to be claimed and in the absence of such a claim it would follow that there was no such goodwill and nothing could therefore have been paid in respect of it.This seems to us to be an argument of substance and we did not understand learned counsel for the respondent to contend to the contrary. What he said was that there was a claim for a loss to the goodwill.6. We turn now to the words in which the claim was made which we have earlier set out. There is no mention of any loss to goodwill there. It is said on behalf of the respondent that the claim was for "compulsory vacation of the premises and also for "disturbance and loss of business and that the claim for "compulsory vacation of the premises" was for the injury to the goodwill. That indeed would be a strange way of making a claim for loss of goodwill. There is a claim for loss of business in express terms and this was computed at two years loss of profits. Why was loss of business claimed? Clearly, because the business would be stopped or disturbed for some time by the compulsory vacation of the premises. That would make the claim as framed sensible. It would then be a claim for one thing only, namely, for loss of profits. The Department says that that is all that was claimed. It is difficult to hold that the claim so framed was, as the respondent contends, for three things, namely, (a) compulsory vacation of premises, (b) disturbance of business and (c) loss of business. If three things were claimed all could not have been together computed by one measure of two years loss of profit as was done. The claim for loss of business would have been without any particulars as to how the loss was said to have been occasioned and this could thirdly have been intended. It is reasonable to think that the compulsory vacation of the premises was mentioned as explaining how the disturbance and loss of business had been occasioned for which a claim had admittedly been made.We do not think that the Tribunal came to any contrary finding. It, no doubt, said "Really speaking the payment is on account of the compulsory vacation of the premises". That does not show that the Tribunal thought that the payment was on account of loss of goodwill. This observation was made because the Tribunal found that it had not been proved that the respondent had actually suffered and loss. No question of actual proof of loss arose for making the claim.We think we ought to refer to another part of the respondents letter earlier mentioned, to which our attention was drawn. There it is statedwe think of our competitors in the open market who would go far ahead on account of our absence we feel we shall have a strong uphill struggle whilstourselves when we have reached the normal stage ofis said this shows that the respondent was claiming for loss of goodwill. That seems to us quite untenable a contention. No goodwill is referred to. All that is said here is that competitors would go ahead while the respondents business remained stopped. Now that has nothing to do with loss of goodwill. It is only concerned with the stoppage of the respondents business irrespective of its removal from one premises to another. Further, this statement was not in connection with any claim actually made. It could only, if at all, be taken as referring to claim for loss of profits. We, therefore, do not think that this portion of the respondents letter helps it.10. It seems to us for the reasons aforesaid that the sum of Rs. 57,435/had not been received by the respondent for any injury to any of its capital assets. In our view, the sum was received as compensation for loss of profits for the period during which, it was imagined, the respondents business would remain stopped before it could be restarted at a new premises. That being so, it was clearly a revenue receipt, it has not been disputed that if the amount in question was paid as compensation for loss of profit, it would be a revenue receipt and liable to tax. As it was a trading receipt it cannot be held exempt from tax under S. 4(3)(vii) of theAct either. In the result we answer both the questions framed in this case in the negative.11. This appeal is therefore allowed with costs.
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Sada Kaur Vs. Bakhtawar Singh and Others | result in forfeiture of the widows right. Didar Singhs case which relates to Dhaliwal jats was of the year 1888. The impugned judgment mentions four instances from the riwaj-i-am of the years 1911-12 supporting the case of forfeiture. No in stance has been found either way relating to Dhaliwal jats of Tehsil Muktsar. However, these four instances relate to Dhaliwal jats of Tehsil Mogha which is adjacent to Muktsar. On these facts and figures gathered from the entries in the riwaj-i-am, the High Court did not find it possible to accept that there was a special custom among Dhaliwal jats of Tehsil Muktsar which permitted a widow who married her deceased husbands brother to retain her interest in her deceased husbands estate.6. In reaching this conclusion the learned Judges had to deal with the earlier Full Bench decision of three Judges of the same High Court, Charan Singh v. Gurdial Singh (supra) in which the view taken by the majority, one learned Judge dissenting, is apparently in conflict with that taken in the judgment under appeal. In Charan Singhs case it was held that as regards jats governed by custom in matters of succession, a widow on remarrying her deceased husbands brother remains en titled to collateral succession in the family. The parties in that case were jats from Ambala District, and remembering that custom in Punjab often varies from district to district and tehsil to tehsil, it seems the proposition was stated too broadly in Charan Singhs case suggesting as if this was the custom among the jats in the entire State of Punjab. The basis of the decision in Charan Singhs case is a statement in Sir W. H. Rattigans Digest of Customary Law in the Punjab. The authoritative value of Rattigans compilation has been recognised by the Privy Council in Mst. Subhani v. Nawab(1) and also by this Court in Mahant Salig Ram v. Mst. Maya Devi (supra) and Jai Kaur v. Sher Singh (supra). In Jai Kaurs case however it was held that"when the custom as recorded in the riwaj-i-am is in conflict with the general custom as recorded in Rattigans Digest or ascertained otherwise, the entries in the riwaj-i-am should ordinarily prevail......"Paragraph 32 of Rattigans Digest on which Charan Singhs case relies states:"In the absence of custom, the remarriage of a widow causes a forfeiture of her life-interest in her first husbands estate which then reverts to the nearest heir of the husband".7. It is thus clear that there is no conflict between the statement in Rattigans Digest and the entry in riwaj-i-am as regards the general custom that remarriage of the widow entails a forfeiture of her interest in her first husbands estate. However, a number of exceptions to this general custom have also been recorded. Exception 1 which is relevant for the present purpose is as follows: "Among certain tribes a remarriage in the Karewa form with the brother of the deceased husband does not cause a forfeiture of the widows life estate in the property of her first husband." The cases cited in support of the special custom relate to Sikh jats of certain districts of Punjab, namely Sirsa, Amritsar, Ferozepur and Ludhiana. There is no mention in this catalogue of Dhaliwal jats of Tehsil Muktsar. It was for the first time in the 12th edition of Rattigans book which was published long after Sir Rattigans death, the following statement was added: "By custom among the Sikh jats of the Punjab a widow does not forfeit her life estate in her deceased husbands property by reason of her remarriage in Karewa form with her husbands brother, whether he be the sole surviving brother or there are other brothers as well of t he deceased." A decision of the Sindh Judicial Commissioners Court, Sant Singh v. Rani Bai(1), has been cited there in support of the statement. It has been pointed out very clearly by the learned Judge in his order by which he referred the ca se to a larger bench that Sant Singhs case does not lay down any such broad proposition to justify the statement added in the 12th edition of Rattigans book. The mistake results from relying on the head note of the case as appearing in the Indian Cases as also in the All India Reporter. Sant Singhs case in which the parties were Sikh jats from Jullundur District relies on a decision of the Punjab Chief Court: "In Basant v. Pratapa(2) a judgment of Punjab Chief Court, it was held that among the Sikh jats in the District of Ludhiana a widow does not forfeit her life estate in her deceased husbands property by reason of her remarriage in Karewa form with her husbands brother whether he be the sole surviving brother or there are other brothers as well of the deceased." What is found there as the custom "among the Sikh Jats in the District of Ludhiana" appears in the head notes of the two reports as the custom "among Sikh Jats in the Punjab". Clearly, the head notes are wrong and do not set out the decision correctly. That being so, it cannot be said that there is any real conflict between the riwaj-i-am and Rattigans Digest on this point. In any event the statement cannot be attributed to Sir Rattigan.8. Five learned Judges of the Punjab and Haryana High Court composing the Full Bench, after a close examination of the available material on the question whether among Dhaliwal jats of Tehsil Muktsar there is a special custom which permits a widow on remarriage with her deceased husbands brother to retain her interest in the estate of the deceased, have answered the question in the negative. On the material before us we find no reason to take a different view. The facts and figures gathered from the entries in the riwaj-i-am have not been challenged by the appellant, that the statement introduced in the 12th edition of Rattigans Digest is wrong cannot also be questioned. | 0[ds]The impugned judgment points out that as against these cases the riwaj-i-am mentions numerous instances, 59 of them relate to Jats, which support the compilers note that on remarriage, no matter whom she marries, the widow forfeits her right to her deceased husbands estate. There are also three instances wherein remarriage did not result in forfeiture of the widows right. Didar Singhs case which relates to Dhaliwal jats was of the year 1888. The impugned judgment mentions four instances from the riwaj-i-am of the years 1911-12 supporting the case of forfeiture. No in stance has been found either way relating to Dhaliwal jats of Tehsil Muktsar. However, these four instances relate to Dhaliwal jats of Tehsil Mogha which is adjacent to Muktsar. On these facts and figures gathered from the entries in the riwaj-i-am, the High Court did not find it possible to accept that there was a special custom among Dhaliwal jats of Tehsil Muktsar which permitted a widow who married her deceased husbands brother to retain her interest in her deceased husbandsreaching this conclusion the learned Judges had to deal with the earlier Full Bench decision of three Judges of the same High Court, Charan Singh v. Gurdial Singh (supra) in which the view taken by the majority, one learned Judge dissenting, is apparently in conflict with that taken in the judgment under appeal. In Charan Singhs case it was held that as regards jats governed by custom in matters of succession, a widow on remarrying her deceased husbands brother remains en titled to collateral succession in the family. The parties in that case were jats from Ambala District, and remembering that custom in Punjab often varies from district to district and tehsil to tehsil, it seems the proposition was stated too broadly in Charan Singhs case suggesting as if this was the custom among the jats in the entire State of Punjab. The basis of the decision in Charan Singhs case is a statement in Sir W. H. Rattigans Digest of Customary Law in the Punjab. The authoritative value of Rattigans compilation has been recognised by the Privy Council in Mst. Subhani v. Nawab(1) and also by this Court in Mahant Salig Ram v. Mst. Maya Devi (supra) and Jai Kaur v. Sher Singh (supra). In Jai Kaurs case however it was held that"when the custom as recorded in the riwaj-i-am is in conflict with the general custom as recorded in Rattigans Digest or ascertained otherwise, the entries in the riwaj-i-am should ordinarily prevail......"Paragraph 32 of Rattigans Digest on which Charan Singhs case relies states:"In the absence of custom, the remarriage of a widow causes a forfeiture of her life-interest in her first husbands estate which then reverts to the nearest heir of the husband".It is thus clear that there is no conflict between the statement in Rattigans Digest and the entry in riwaj-i-am as regards the general custom that remarriage of the widow entails a forfeiture of her interest in her first husbands estate. However, a number of exceptions to this general custom have also been recorded. Exception 1 which is relevant for the present purpose is as follows: "Among certain tribes a remarriage in the Karewa form with the brother of the deceased husband does not cause a forfeiture of the widows life estate in the property of her first husband." The cases cited in support of the special custom relate to Sikh jats of certain districts of Punjab, namely Sirsa, Amritsar, Ferozepur and Ludhiana. There is no mention in this catalogue of Dhaliwal jats of Tehsil Muktsar. It was for the first time in the 12th edition of Rattigans book which was published long after Sir Rattigans death, the following statement was added: "By custom among the Sikh jats of the Punjab a widow does not forfeit her life estate in her deceased husbands property by reason of her remarriage in Karewa form with her husbands brother, whether he be the sole surviving brother or there are other brothers as well of t he deceased." A decision of the Sindh Judicial Commissioners Court, Sant Singh v. Rani Bai(1), has been cited there in support of the statement. It has been pointed out very clearly by the learned Judge in his order by which he referred the ca se to a larger bench that Sant Singhs case does not lay down any such broad proposition to justify the statement added in the 12th edition of Rattigans book. The mistake results from relying on the head note of the case as appearing in the Indian Cases as also in the All India Reporter. Sant Singhs case in which the parties were Sikh jats from Jullundur District relies on a decision of the Punjab Chief Court: "In Basant v. Pratapa(2) a judgment of Punjab Chief Court, it was held that among the Sikh jats in the District of Ludhiana a widow does not forfeit her life estate in her deceased husbands property by reason of her remarriage in Karewa form with her husbands brother whether he be the sole surviving brother or there are other brothers as well of the deceased." What is found there as the custom "among the Sikh Jats in the District of Ludhiana" appears in the head notes of the two reports as the custom "among Sikh Jats in the Punjab". Clearly, the head notes are wrong and do not set out the decision correctly. That being so, it cannot be said that there is any real conflict between the riwaj-i-am and Rattigans Digest on this point. In any event the statement cannot be attributed to Sirlearned Judges of the Punjab and Haryana High Court composing the Full Bench, after a close examination of the available material on the question whether among Dhaliwal jats of Tehsil Muktsar there is a special custom which permits a widow on remarriage with her deceased husbands brother to retain her interest in the estate of the deceased, have answered the question in the negative. On the material before us we find no reason to take a different view. The facts and figures gathered from the entries in the riwaj-i-am have not been challenged by the appellant, that the statement introduced in the 12th edition of Rattigans Digest is wrong cannot also beis however no material to suggest that thein this case suffers from any such infirmity. | 0 | 2,442 | 1,161 | ### 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:
result in forfeiture of the widows right. Didar Singhs case which relates to Dhaliwal jats was of the year 1888. The impugned judgment mentions four instances from the riwaj-i-am of the years 1911-12 supporting the case of forfeiture. No in stance has been found either way relating to Dhaliwal jats of Tehsil Muktsar. However, these four instances relate to Dhaliwal jats of Tehsil Mogha which is adjacent to Muktsar. On these facts and figures gathered from the entries in the riwaj-i-am, the High Court did not find it possible to accept that there was a special custom among Dhaliwal jats of Tehsil Muktsar which permitted a widow who married her deceased husbands brother to retain her interest in her deceased husbands estate.6. In reaching this conclusion the learned Judges had to deal with the earlier Full Bench decision of three Judges of the same High Court, Charan Singh v. Gurdial Singh (supra) in which the view taken by the majority, one learned Judge dissenting, is apparently in conflict with that taken in the judgment under appeal. In Charan Singhs case it was held that as regards jats governed by custom in matters of succession, a widow on remarrying her deceased husbands brother remains en titled to collateral succession in the family. The parties in that case were jats from Ambala District, and remembering that custom in Punjab often varies from district to district and tehsil to tehsil, it seems the proposition was stated too broadly in Charan Singhs case suggesting as if this was the custom among the jats in the entire State of Punjab. The basis of the decision in Charan Singhs case is a statement in Sir W. H. Rattigans Digest of Customary Law in the Punjab. The authoritative value of Rattigans compilation has been recognised by the Privy Council in Mst. Subhani v. Nawab(1) and also by this Court in Mahant Salig Ram v. Mst. Maya Devi (supra) and Jai Kaur v. Sher Singh (supra). In Jai Kaurs case however it was held that"when the custom as recorded in the riwaj-i-am is in conflict with the general custom as recorded in Rattigans Digest or ascertained otherwise, the entries in the riwaj-i-am should ordinarily prevail......"Paragraph 32 of Rattigans Digest on which Charan Singhs case relies states:"In the absence of custom, the remarriage of a widow causes a forfeiture of her life-interest in her first husbands estate which then reverts to the nearest heir of the husband".7. It is thus clear that there is no conflict between the statement in Rattigans Digest and the entry in riwaj-i-am as regards the general custom that remarriage of the widow entails a forfeiture of her interest in her first husbands estate. However, a number of exceptions to this general custom have also been recorded. Exception 1 which is relevant for the present purpose is as follows: "Among certain tribes a remarriage in the Karewa form with the brother of the deceased husband does not cause a forfeiture of the widows life estate in the property of her first husband." The cases cited in support of the special custom relate to Sikh jats of certain districts of Punjab, namely Sirsa, Amritsar, Ferozepur and Ludhiana. There is no mention in this catalogue of Dhaliwal jats of Tehsil Muktsar. It was for the first time in the 12th edition of Rattigans book which was published long after Sir Rattigans death, the following statement was added: "By custom among the Sikh jats of the Punjab a widow does not forfeit her life estate in her deceased husbands property by reason of her remarriage in Karewa form with her husbands brother, whether he be the sole surviving brother or there are other brothers as well of t he deceased." A decision of the Sindh Judicial Commissioners Court, Sant Singh v. Rani Bai(1), has been cited there in support of the statement. It has been pointed out very clearly by the learned Judge in his order by which he referred the ca se to a larger bench that Sant Singhs case does not lay down any such broad proposition to justify the statement added in the 12th edition of Rattigans book. The mistake results from relying on the head note of the case as appearing in the Indian Cases as also in the All India Reporter. Sant Singhs case in which the parties were Sikh jats from Jullundur District relies on a decision of the Punjab Chief Court: "In Basant v. Pratapa(2) a judgment of Punjab Chief Court, it was held that among the Sikh jats in the District of Ludhiana a widow does not forfeit her life estate in her deceased husbands property by reason of her remarriage in Karewa form with her husbands brother whether he be the sole surviving brother or there are other brothers as well of the deceased." What is found there as the custom "among the Sikh Jats in the District of Ludhiana" appears in the head notes of the two reports as the custom "among Sikh Jats in the Punjab". Clearly, the head notes are wrong and do not set out the decision correctly. That being so, it cannot be said that there is any real conflict between the riwaj-i-am and Rattigans Digest on this point. In any event the statement cannot be attributed to Sir Rattigan.8. Five learned Judges of the Punjab and Haryana High Court composing the Full Bench, after a close examination of the available material on the question whether among Dhaliwal jats of Tehsil Muktsar there is a special custom which permits a widow on remarriage with her deceased husbands brother to retain her interest in the estate of the deceased, have answered the question in the negative. On the material before us we find no reason to take a different view. The facts and figures gathered from the entries in the riwaj-i-am have not been challenged by the appellant, that the statement introduced in the 12th edition of Rattigans Digest is wrong cannot also be questioned.
### Response:
0
### Explanation:
right. Didar Singhs case which relates to Dhaliwal jats was of the year 1888. The impugned judgment mentions four instances from the riwaj-i-am of the years 1911-12 supporting the case of forfeiture. No in stance has been found either way relating to Dhaliwal jats of Tehsil Muktsar. However, these four instances relate to Dhaliwal jats of Tehsil Mogha which is adjacent to Muktsar. On these facts and figures gathered from the entries in the riwaj-i-am, the High Court did not find it possible to accept that there was a special custom among Dhaliwal jats of Tehsil Muktsar which permitted a widow who married her deceased husbands brother to retain her interest in her deceased husbandsreaching this conclusion the learned Judges had to deal with the earlier Full Bench decision of three Judges of the same High Court, Charan Singh v. Gurdial Singh (supra) in which the view taken by the majority, one learned Judge dissenting, is apparently in conflict with that taken in the judgment under appeal. In Charan Singhs case it was held that as regards jats governed by custom in matters of succession, a widow on remarrying her deceased husbands brother remains en titled to collateral succession in the family. The parties in that case were jats from Ambala District, and remembering that custom in Punjab often varies from district to district and tehsil to tehsil, it seems the proposition was stated too broadly in Charan Singhs case suggesting as if this was the custom among the jats in the entire State of Punjab. The basis of the decision in Charan Singhs case is a statement in Sir W. H. Rattigans Digest of Customary Law in the Punjab. The authoritative value of Rattigans compilation has been recognised by the Privy Council in Mst. Subhani v. Nawab(1) and also by this Court in Mahant Salig Ram v. Mst. Maya Devi (supra) and Jai Kaur v. Sher Singh (supra). In Jai Kaurs case however it was held that"when the custom as recorded in the riwaj-i-am is in conflict with the general custom as recorded in Rattigans Digest or ascertained otherwise, the entries in the riwaj-i-am should ordinarily prevail......"Paragraph 32 of Rattigans Digest on which Charan Singhs case relies states:"In the absence of custom, the remarriage of a widow causes a forfeiture of her life-interest in her first husbands estate which then reverts to the nearest heir of the husband".It is thus clear that there is no conflict between the statement in Rattigans Digest and the entry in riwaj-i-am as regards the general custom that remarriage of the widow entails a forfeiture of her interest in her first husbands estate. However, a number of exceptions to this general custom have also been recorded. Exception 1 which is relevant for the present purpose is as follows: "Among certain tribes a remarriage in the Karewa form with the brother of the deceased husband does not cause a forfeiture of the widows life estate in the property of her first husband." The cases cited in support of the special custom relate to Sikh jats of certain districts of Punjab, namely Sirsa, Amritsar, Ferozepur and Ludhiana. There is no mention in this catalogue of Dhaliwal jats of Tehsil Muktsar. It was for the first time in the 12th edition of Rattigans book which was published long after Sir Rattigans death, the following statement was added: "By custom among the Sikh jats of the Punjab a widow does not forfeit her life estate in her deceased husbands property by reason of her remarriage in Karewa form with her husbands brother, whether he be the sole surviving brother or there are other brothers as well of t he deceased." A decision of the Sindh Judicial Commissioners Court, Sant Singh v. Rani Bai(1), has been cited there in support of the statement. It has been pointed out very clearly by the learned Judge in his order by which he referred the ca se to a larger bench that Sant Singhs case does not lay down any such broad proposition to justify the statement added in the 12th edition of Rattigans book. The mistake results from relying on the head note of the case as appearing in the Indian Cases as also in the All India Reporter. Sant Singhs case in which the parties were Sikh jats from Jullundur District relies on a decision of the Punjab Chief Court: "In Basant v. Pratapa(2) a judgment of Punjab Chief Court, it was held that among the Sikh jats in the District of Ludhiana a widow does not forfeit her life estate in her deceased husbands property by reason of her remarriage in Karewa form with her husbands brother whether he be the sole surviving brother or there are other brothers as well of the deceased." What is found there as the custom "among the Sikh Jats in the District of Ludhiana" appears in the head notes of the two reports as the custom "among Sikh Jats in the Punjab". Clearly, the head notes are wrong and do not set out the decision correctly. That being so, it cannot be said that there is any real conflict between the riwaj-i-am and Rattigans Digest on this point. In any event the statement cannot be attributed to Sirlearned Judges of the Punjab and Haryana High Court composing the Full Bench, after a close examination of the available material on the question whether among Dhaliwal jats of Tehsil Muktsar there is a special custom which permits a widow on remarriage with her deceased husbands brother to retain her interest in the estate of the deceased, have answered the question in the negative. On the material before us we find no reason to take a different view. The facts and figures gathered from the entries in the riwaj-i-am have not been challenged by the appellant, that the statement introduced in the 12th edition of Rattigans Digest is wrong cannot also beis however no material to suggest that thein this case suffers from any such infirmity.
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VEENA PANDEY Vs. UNION OF INDIA & ORS | Hrishikesh Roy, J. 1. Leave granted. 2. The present appeal arises out of claims for pensionary benefits under the Coal Mines Pension Scheme, 1998 (hereinafter referred to as the Pension Scheme, 1998 for short). The appellants husband Ramashankar Pandey rendered service in the South Eastern Coal Fields Ltd., Bilaspur, after being transferred from Bharat Coking Coal Ltd in 1999. The employee retired on 31.05.2004 as Chief Personnel Manager at Bilaspur and later settled in Bhojpur, Bihar with his family. He opted for receiving 90% pension during his life time as provided under para 15 1(b) of the Pension Scheme, 1998 effective from 31.03.1998. Since the employee opted to receive 90% of the total admissible amount of the pension during his lifetime, on his death on 12.01.2011, the widow of the pensioner became entitled to receive in lump sum, an amount equal to 100 times his full monthly pension, in addition to family pension. The record shows that Rs.7091/- p.m. was sanctioned to the employee as Basic Pension under the Pension Scheme, 1998 w.e.f 01.06.2004 and 10% of his Basic Pension i.e Rs. 788/- p.m. was deposited with the department. 3. Following the employees death on 12.01.2011, as per the Pension Scheme, 1998 the widow of the pensioner made claim for a sum equivalent to 100 times the full monthly pension of her husband and vide letter dated 30.09.2012, she applied for payment of the lump sum amount in pursuance of para 15(1)(b) read with para 15(2) of the Pension Scheme, 1998. 4. The appellants representation was however rejected. In the letter dated 22.01.2013 of the Regional Commissioner of the Coal Mines Provident Fund Organization (CMPFO for short) it was stated that the pensioner had opted for payment of 90% pension under para 15 (1)(b) of the Pension Scheme, 1998, but the aforesaid provision was abolished w.e.f 21.02.2011. It was also intimated that the 10% surrendered amount had been refunded to all pensioners with interest under the order dated 30.01.2012 of the Coal Mines Provident Fund Commissioner. 5. The appellant was refunded the surrendered amount of 10% with interest (Rs. 36,938/-) along with widow pension arrears (Rs.12,351/-), in total Rs. 49,289/-, whereas she claimed a higher sum under the now abolished provisions of the Pension Scheme. 6. Aggrieved by the above stand of the employer, the appellant moved the High Court of Patna for disbursal of the pensionary benefits and also to quash the letter dated 22.01.2013 of the Regional Commissioner, CMPFO whereunder, it had been communicated that, no other payment is due to the appellant. Her C.W.J.C No.9837/2014 was however dismissed as not maintainable by the learned Single Judge on the ground that no cause of action arose within the territorial jurisdiction of the High Court of Patna. This order was affirmed by the Division Bench by dismissal of the appellants LPA No.701/2017 with similar observation that the services rendered by the pensioner were outside the territorial jurisdiction of the Patna High Court and hence the writ petition filed by the widow of the pensioner was not maintainable. These orders of the High Court are impugned in this Appeal. 7. Heard Mr. Santosh Kumar, learned counsel for the appellant. Also heard Ms. Madhavi Divan, the learned ASG appearing for the respondents. 8. Ms. Madhavi Divan, learned ASG, points out from the additional counter affidavit of respondent no. 6 that pursuant to the administrative order dated 04.03.2011 of the Commissioner, CMPFO, the appellants case was settled on 18.04.2011 and 10% surrendered value of monthly pension along with applicable interest thereon was refunded. 9. Mr. Santosh Kumar, learned Counsel appearing for the appellant would however contend that the lumpsum (100 times of full monthly pension) became payable to the widow on the death of her husband, who, subsequent to his retirement, had opted for the same under the Pension Scheme. The counsel further submits that the appellant as the widow of the employee is suffering as she has been non suited by the court on the ground of want of territorial jurisdiction. 10. It is necessary to note that the Coal Mines Pension Scheme, 1998 was framed as a measure of social security for ensuring socio-economic justice for the employees in the coal sector under the powers conferred by Section 3-E of the Coal Mines Provident Fund and Miscellaneous Provisions Act, 1948. 11. Pension as is well known, is the deferred portion of the compensation (All India Reserve Bank Retired Officers Association & ors Vs. Union of India & ors, (1992) Supp 1 SCC 664) for rendering long years of service. It is a hard-earned benefit accruing to an employee and has been held to be in the nature of property by this Court, in State of Jharkhand and Others Vs. Jitendra Kumar Srivastava and Another (2013) 12 SCC 210. 12. While considering the appellants case, the High Court did not however consider her entitlement on merit, but had dismissed both the Writ Petition and the LPA, citing want of territorial jurisdiction. The employment of the appellants husband with the respondent employer is however not in dispute. Nevertheless, for over a decade, the widow of the employee is forced to litigate to secure the pension benefits. | 1[ds]11. Pension as is well known, is the deferred portion of the compensation (All India Reserve Bank Retired Officers Association & ors Vs. Union of India & ors, (1992) Supp 1 SCC 664) for rendering long years of service. It is a hard-earned benefit accruing to an employee and has been held to be in the nature of property by this Court, in State of Jharkhand and Others Vs. Jitendra Kumar Srivastava and Another (2013) 12 SCC 210.12. While considering the appellants case, the High Court did not however consider her entitlement on merit, but had dismissed both the Writ Petition and the LPA, citing want of territorial jurisdiction. The employment of the appellants husband with the respondent employer is however not in dispute. Nevertheless, for over a decade, the widow of the employee is forced to litigate to secure the pension benefits. | 1 | 992 | 167 | ### 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:
Hrishikesh Roy, J. 1. Leave granted. 2. The present appeal arises out of claims for pensionary benefits under the Coal Mines Pension Scheme, 1998 (hereinafter referred to as the Pension Scheme, 1998 for short). The appellants husband Ramashankar Pandey rendered service in the South Eastern Coal Fields Ltd., Bilaspur, after being transferred from Bharat Coking Coal Ltd in 1999. The employee retired on 31.05.2004 as Chief Personnel Manager at Bilaspur and later settled in Bhojpur, Bihar with his family. He opted for receiving 90% pension during his life time as provided under para 15 1(b) of the Pension Scheme, 1998 effective from 31.03.1998. Since the employee opted to receive 90% of the total admissible amount of the pension during his lifetime, on his death on 12.01.2011, the widow of the pensioner became entitled to receive in lump sum, an amount equal to 100 times his full monthly pension, in addition to family pension. The record shows that Rs.7091/- p.m. was sanctioned to the employee as Basic Pension under the Pension Scheme, 1998 w.e.f 01.06.2004 and 10% of his Basic Pension i.e Rs. 788/- p.m. was deposited with the department. 3. Following the employees death on 12.01.2011, as per the Pension Scheme, 1998 the widow of the pensioner made claim for a sum equivalent to 100 times the full monthly pension of her husband and vide letter dated 30.09.2012, she applied for payment of the lump sum amount in pursuance of para 15(1)(b) read with para 15(2) of the Pension Scheme, 1998. 4. The appellants representation was however rejected. In the letter dated 22.01.2013 of the Regional Commissioner of the Coal Mines Provident Fund Organization (CMPFO for short) it was stated that the pensioner had opted for payment of 90% pension under para 15 (1)(b) of the Pension Scheme, 1998, but the aforesaid provision was abolished w.e.f 21.02.2011. It was also intimated that the 10% surrendered amount had been refunded to all pensioners with interest under the order dated 30.01.2012 of the Coal Mines Provident Fund Commissioner. 5. The appellant was refunded the surrendered amount of 10% with interest (Rs. 36,938/-) along with widow pension arrears (Rs.12,351/-), in total Rs. 49,289/-, whereas she claimed a higher sum under the now abolished provisions of the Pension Scheme. 6. Aggrieved by the above stand of the employer, the appellant moved the High Court of Patna for disbursal of the pensionary benefits and also to quash the letter dated 22.01.2013 of the Regional Commissioner, CMPFO whereunder, it had been communicated that, no other payment is due to the appellant. Her C.W.J.C No.9837/2014 was however dismissed as not maintainable by the learned Single Judge on the ground that no cause of action arose within the territorial jurisdiction of the High Court of Patna. This order was affirmed by the Division Bench by dismissal of the appellants LPA No.701/2017 with similar observation that the services rendered by the pensioner were outside the territorial jurisdiction of the Patna High Court and hence the writ petition filed by the widow of the pensioner was not maintainable. These orders of the High Court are impugned in this Appeal. 7. Heard Mr. Santosh Kumar, learned counsel for the appellant. Also heard Ms. Madhavi Divan, the learned ASG appearing for the respondents. 8. Ms. Madhavi Divan, learned ASG, points out from the additional counter affidavit of respondent no. 6 that pursuant to the administrative order dated 04.03.2011 of the Commissioner, CMPFO, the appellants case was settled on 18.04.2011 and 10% surrendered value of monthly pension along with applicable interest thereon was refunded. 9. Mr. Santosh Kumar, learned Counsel appearing for the appellant would however contend that the lumpsum (100 times of full monthly pension) became payable to the widow on the death of her husband, who, subsequent to his retirement, had opted for the same under the Pension Scheme. The counsel further submits that the appellant as the widow of the employee is suffering as she has been non suited by the court on the ground of want of territorial jurisdiction. 10. It is necessary to note that the Coal Mines Pension Scheme, 1998 was framed as a measure of social security for ensuring socio-economic justice for the employees in the coal sector under the powers conferred by Section 3-E of the Coal Mines Provident Fund and Miscellaneous Provisions Act, 1948. 11. Pension as is well known, is the deferred portion of the compensation (All India Reserve Bank Retired Officers Association & ors Vs. Union of India & ors, (1992) Supp 1 SCC 664) for rendering long years of service. It is a hard-earned benefit accruing to an employee and has been held to be in the nature of property by this Court, in State of Jharkhand and Others Vs. Jitendra Kumar Srivastava and Another (2013) 12 SCC 210. 12. While considering the appellants case, the High Court did not however consider her entitlement on merit, but had dismissed both the Writ Petition and the LPA, citing want of territorial jurisdiction. The employment of the appellants husband with the respondent employer is however not in dispute. Nevertheless, for over a decade, the widow of the employee is forced to litigate to secure the pension benefits.
### Response:
1
### Explanation:
11. Pension as is well known, is the deferred portion of the compensation (All India Reserve Bank Retired Officers Association & ors Vs. Union of India & ors, (1992) Supp 1 SCC 664) for rendering long years of service. It is a hard-earned benefit accruing to an employee and has been held to be in the nature of property by this Court, in State of Jharkhand and Others Vs. Jitendra Kumar Srivastava and Another (2013) 12 SCC 210.12. While considering the appellants case, the High Court did not however consider her entitlement on merit, but had dismissed both the Writ Petition and the LPA, citing want of territorial jurisdiction. The employment of the appellants husband with the respondent employer is however not in dispute. Nevertheless, for over a decade, the widow of the employee is forced to litigate to secure the pension benefits.
|
KRISHNA GOPAL TIWARY & ANR Vs. UNION OF INDIA & ORS | While pension is payable periodically as long as the pensioner is alive, gratuity is ordinarily paid only once on retirement. No other decision of this Court which has taken a view contrary to the decision of Thakkar and Ray, JJ. in Andhra Pradesh State Government Pensioners Association case [(1986) 3 SCC 501 : 1986 SCC (L&S) 676] and to the decision in N.L. Abhyankar case [(1984) 3 SCC 125 : 1984 SCC (L&S) 486] has been brought to out notice. The observations made in these two cases are binding on us insofar as the applicability of the rule in D.S. Nakara case [(1983) 1 SCC 305 : 1983 SCC (L&S) 145 : (1983) 2 SCR 165 : 1983 UPSC 263] to the liability of the Government to pay gratuity on retirement. We respectfully agree with the views expressed in those decisions. It is also not shown that the Government notification in question either expressly or by necessary implication directs that those who had retired prior to 1-1- 1973 would be entitled to any additional amount by way of gratuity. The Tribunal was, therefore, in error in upholding that gratuity was payable in accordance with the Government Notification No. 33/12/73-AISC(ii) dated 24-1- 1975 to all those members of the All-India Services who had retired prior to 1-1-1973. 12. Sub-section (5) of Section 4 of the Gratuity Act protects the right of an employee to receive better terms of gratuity under any award or contract with the employer. The gratuity paid to the appellants on the strength of office memorandum dated 26.11.2008 would fall in the said sub-section. 13. However, what is exempt from the Income Tax Act is the amount of gratuity received under the Gratuity Act to the extent it does not exceed an amount calculated in accordance with the provisions of sub-sections (2) and (3) of Section 4 of the Gratuity Act. The Gratuity Act contemplated rupees ten lakhs as the amount of gratuity only from 24.5.2010. Such gratuity is the amount payable only once. Thus, the cut-off date cannot be said to be illegal, it being one-time payment. Therefore, such amendment in the Gratuity Act cannot be treated to be retrospective. Therefore, the provisions of the statute cannot be said to be retrospective. 14. In a judgment of this Court reported as Sri Vijayalakshmi Rice Mills, New Contractors Co. & Ors. v. State of Andhra Pradesh (1976) 3 SCC 37, the new rate of supply of rice was made effective on 23.3.1964. The question arose was as to whether the rice supplied earlier would have the benefit of beneficial provision as contained in the later notification dated 23.3.1964. This Court held that price as was prevalent on the date of sale alone would be payable and not the higher price introduced by amendment. It was held as under: 6. The aforesaid sales in the instant cases having been made by the appellants before the coming into force of the Rice (Andhra Pradesh) Price Control (Third Amendment) Order, 1964, and the property in the goods having passed to the Government of Andhra Pradesh on the dates the supplies were made, the appellants had to be paid only at the controlled price obtaining on the dates the sales were effected and not at the increased price which came into operation subsequently. 15. In another judgment reported as Orient Paper and Industries Ltd. & Anr. v. State of Orissa & Ors. 1991 Supp. (1) SCC 81, it was held that since the executive has been empowered to choose the date of commencement of the Act, such delegation cannot be said to be case of excessive delegation. The Court held as under: 29. Even if the section were to be seen as a delegation of power, it is a power conferred on the government to give full effect to the policy behind the legislation. It is with a view to achieving that purpose that the executive has been empowered to choose the time, place and forest produce for bringing the Act into operation having regard to the particular facts and circumstances in the contemplation of the legislature. There is no excessive delegation in such statutory grant of power. [See Gwalior Rayon Silk Mfg. (Wvg.) Co. Ltd. v. CST [(1974) 4 SCC 98 : 1974 SCC (Tax) 226 : (1974) 2 SCR 879 ] ; Harishankar Bagla v. State of M.P. [(1955) 1 SCR 380, 388 : AIR 1954 SC 465 ] ] 16. In a recent judgment reported as Himachal Road Transport Corporation & Anr. v. Himachal Road Transport Corporation Retired Employees Union (2021) 4 SCC 502, in the case of payment of increased quantum of death-cum-retirement gratuity, it was held that the cutoff date cannot be said to be arbitrary which was fixed keeping in view financial constraints. This Court held as under: 18. Though there are long line of cases, where validity of fixation of cut-off date is considered by this Court, we confine and refer to the case law which is relevant to the facts of the case on hand. In State of Punjab v. Amar Nath Goyal [State of Punjab v. Amar Nath Goyal, (2005) 6 SCC 754 : 2005 SCC (L&S) 910] , while examining the validity of cut-off date fixed for grant of benefit of increased quantum of death-cum-retirement gratuity, this Court has held that the financial constraint pleaded by the Government, was a valid ground for fixation of cut-off date and such fixation was not arbitrary, irrational or violative of Article 14 of the Constitution……. 17. In view of the above, we find that the date of commencement fixed by the Executive in exercise of power delegated by the Amending Act cannot be treated to be retrospective as the benefit of higher gratuity is one-time available to the employees only after the commencement of the Amending Act. The benefit paid to the appellants under the office memorandum is not entitled to exemption in view of specific language of Section 10(10)(ii) of the Income Tax Act. | 0[ds]10. The aforesaid judgment has come up for consideration before this Court in a judgment reported as State Government Pensioners Association & Ors. v. State of Andhra Pradesh (1986) 3 SCC 501 wherein the payment of gratuity from a specified date of retirement was held to be not unconstitutional. This Court held as under:2. … Similar is the case with regard to gratuity which has already been paid to the petitioners on the then prevailing basis as it obtained at the time of their respective dates of retirement. The amount got crystallized on the date of retirement on the basis of the salary drawn by him on the date of retirement. And it was already paid to them on that footing. The transaction is completed and closed. There is no scope for upward or downward revision in the context of upward or downward revision of the formula evolved later on in future unless the provision in this behalf expressly so provides retrospectively (downward revision may not be legally permissible even)….11. Similar view was taken in a judgment reported as Union of India v. All India Services Pensioners Association & Anr. (1988) 2 SCC 580 wherein it was held that the pension is payable periodically as long as the pensioner is alive whereas the gratuity is ordinarily paid only once on retirement. This Court held as under:8. From the foregoing it is clear that this Court has made a distinction between the pension payable on retirement and the gratuity payable on retirement. While pension is payable periodically as long as the pensioner is alive, gratuity is ordinarily paid only once on retirement. No other decision of this Court which has taken a view contrary to the decision of Thakkar and Ray, JJ. in Andhra Pradesh State Government Pensioners Association case [(1986) 3 SCC 501 : 1986 SCC (L&S) 676] and to the decision in N.L. Abhyankar case [(1984) 3 SCC 125 : 1984 SCC (L&S) 486] has been brought to out notice. The observations made in these two cases are binding on us insofar as the applicability of the rule in D.S. Nakara case [(1983) 1 SCC 305 : 1983 SCC (L&S) 145 : (1983) 2 SCR 165 : 1983 UPSC 263] to the liability of the Government to pay gratuity on retirement. We respectfully agree with the views expressed in those decisions. It is also not shown that the Government notification in question either expressly or by necessary implication directs that those who had retired prior to 1-1- 1973 would be entitled to any additional amount by way of gratuity. The Tribunal was, therefore, in error in upholding that gratuity was payable in accordance with the Government Notification No. 33/12/73-AISC(ii) dated 24-1- 1975 to all those members of the All-India Services who had retired prior to 1-1-1973.13. However, what is exempt from the Income Tax Act is the amount of gratuity received under the Gratuity Act to the extent it does not exceed an amount calculated in accordance with the provisions of sub-sections (2) and (3) of Section 4 of the Gratuity Act. The Gratuity Act contemplated rupees ten lakhs as the amount of gratuity only from 24.5.2010. Such gratuity is the amount payable only once. Thus, the cut-off date cannot be said to be illegal, it being one-time payment. Therefore, such amendment in the Gratuity Act cannot be treated to be retrospective. Therefore, the provisions of the statute cannot be said to be retrospective.14. In a judgment of this Court reported as Sri Vijayalakshmi Rice Mills, New Contractors Co. & Ors. v. State of Andhra Pradesh (1976) 3 SCC 37, the new rate of supply of rice was made effective on 23.3.1964. The question arose was as to whether the rice supplied earlier would have the benefit of beneficial provision as contained in the later notification dated 23.3.1964. This Court held that price as was prevalent on the date of sale alone would be payable and not the higher price introduced by amendment. It was held as under:6. The aforesaid sales in the instant cases having been made by the appellants before the coming into force of the Rice (Andhra Pradesh) Price Control (Third Amendment) Order, 1964, and the property in the goods having passed to the Government of Andhra Pradesh on the dates the supplies were made, the appellants had to be paid only at the controlled price obtaining on the dates the sales were effected and not at the increased price which came into operation subsequently.16. In a recent judgment reported as Himachal Road Transport Corporation & Anr. v. Himachal Road Transport Corporation Retired Employees Union (2021) 4 SCC 502, in the case of payment of increased quantum of death-cum-retirement gratuity, it was held that the cutoff date cannot be said to be arbitrary which was fixed keeping in view financial constraints. This Court held as under:18. Though there are long line of cases, where validity of fixation of cut-off date is considered by this Court, we confine and refer to the case law which is relevant to the facts of the case on hand. In State of Punjab v. Amar Nath Goyal [State of Punjab v. Amar Nath Goyal, (2005) 6 SCC 754 : 2005 SCC (L&S) 910] , while examining the validity of cut-off date fixed for grant of benefit of increased quantum of death-cum-retirement gratuity, this Court has held that the financial constraint pleaded by the Government, was a valid ground for fixation of cut-off date and such fixation was not arbitrary, irrational or violative of Article 14 of the Constitution…….17. In view of the above, we find that the date of commencement fixed by the Executive in exercise of power delegated by the Amending Act cannot be treated to be retrospective as the benefit of higher gratuity is one-time available to the employees only after the commencement of the Amending Act. The benefit paid to the appellants under the office memorandum is not entitled to exemption in view of specific language of Section 10(10)(ii) of the Income Tax Act. | 0 | 2,778 | 1,142 | ### 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:
While pension is payable periodically as long as the pensioner is alive, gratuity is ordinarily paid only once on retirement. No other decision of this Court which has taken a view contrary to the decision of Thakkar and Ray, JJ. in Andhra Pradesh State Government Pensioners Association case [(1986) 3 SCC 501 : 1986 SCC (L&S) 676] and to the decision in N.L. Abhyankar case [(1984) 3 SCC 125 : 1984 SCC (L&S) 486] has been brought to out notice. The observations made in these two cases are binding on us insofar as the applicability of the rule in D.S. Nakara case [(1983) 1 SCC 305 : 1983 SCC (L&S) 145 : (1983) 2 SCR 165 : 1983 UPSC 263] to the liability of the Government to pay gratuity on retirement. We respectfully agree with the views expressed in those decisions. It is also not shown that the Government notification in question either expressly or by necessary implication directs that those who had retired prior to 1-1- 1973 would be entitled to any additional amount by way of gratuity. The Tribunal was, therefore, in error in upholding that gratuity was payable in accordance with the Government Notification No. 33/12/73-AISC(ii) dated 24-1- 1975 to all those members of the All-India Services who had retired prior to 1-1-1973. 12. Sub-section (5) of Section 4 of the Gratuity Act protects the right of an employee to receive better terms of gratuity under any award or contract with the employer. The gratuity paid to the appellants on the strength of office memorandum dated 26.11.2008 would fall in the said sub-section. 13. However, what is exempt from the Income Tax Act is the amount of gratuity received under the Gratuity Act to the extent it does not exceed an amount calculated in accordance with the provisions of sub-sections (2) and (3) of Section 4 of the Gratuity Act. The Gratuity Act contemplated rupees ten lakhs as the amount of gratuity only from 24.5.2010. Such gratuity is the amount payable only once. Thus, the cut-off date cannot be said to be illegal, it being one-time payment. Therefore, such amendment in the Gratuity Act cannot be treated to be retrospective. Therefore, the provisions of the statute cannot be said to be retrospective. 14. In a judgment of this Court reported as Sri Vijayalakshmi Rice Mills, New Contractors Co. & Ors. v. State of Andhra Pradesh (1976) 3 SCC 37, the new rate of supply of rice was made effective on 23.3.1964. The question arose was as to whether the rice supplied earlier would have the benefit of beneficial provision as contained in the later notification dated 23.3.1964. This Court held that price as was prevalent on the date of sale alone would be payable and not the higher price introduced by amendment. It was held as under: 6. The aforesaid sales in the instant cases having been made by the appellants before the coming into force of the Rice (Andhra Pradesh) Price Control (Third Amendment) Order, 1964, and the property in the goods having passed to the Government of Andhra Pradesh on the dates the supplies were made, the appellants had to be paid only at the controlled price obtaining on the dates the sales were effected and not at the increased price which came into operation subsequently. 15. In another judgment reported as Orient Paper and Industries Ltd. & Anr. v. State of Orissa & Ors. 1991 Supp. (1) SCC 81, it was held that since the executive has been empowered to choose the date of commencement of the Act, such delegation cannot be said to be case of excessive delegation. The Court held as under: 29. Even if the section were to be seen as a delegation of power, it is a power conferred on the government to give full effect to the policy behind the legislation. It is with a view to achieving that purpose that the executive has been empowered to choose the time, place and forest produce for bringing the Act into operation having regard to the particular facts and circumstances in the contemplation of the legislature. There is no excessive delegation in such statutory grant of power. [See Gwalior Rayon Silk Mfg. (Wvg.) Co. Ltd. v. CST [(1974) 4 SCC 98 : 1974 SCC (Tax) 226 : (1974) 2 SCR 879 ] ; Harishankar Bagla v. State of M.P. [(1955) 1 SCR 380, 388 : AIR 1954 SC 465 ] ] 16. In a recent judgment reported as Himachal Road Transport Corporation & Anr. v. Himachal Road Transport Corporation Retired Employees Union (2021) 4 SCC 502, in the case of payment of increased quantum of death-cum-retirement gratuity, it was held that the cutoff date cannot be said to be arbitrary which was fixed keeping in view financial constraints. This Court held as under: 18. Though there are long line of cases, where validity of fixation of cut-off date is considered by this Court, we confine and refer to the case law which is relevant to the facts of the case on hand. In State of Punjab v. Amar Nath Goyal [State of Punjab v. Amar Nath Goyal, (2005) 6 SCC 754 : 2005 SCC (L&S) 910] , while examining the validity of cut-off date fixed for grant of benefit of increased quantum of death-cum-retirement gratuity, this Court has held that the financial constraint pleaded by the Government, was a valid ground for fixation of cut-off date and such fixation was not arbitrary, irrational or violative of Article 14 of the Constitution……. 17. In view of the above, we find that the date of commencement fixed by the Executive in exercise of power delegated by the Amending Act cannot be treated to be retrospective as the benefit of higher gratuity is one-time available to the employees only after the commencement of the Amending Act. The benefit paid to the appellants under the office memorandum is not entitled to exemption in view of specific language of Section 10(10)(ii) of the Income Tax Act.
### Response:
0
### Explanation:
reported as State Government Pensioners Association & Ors. v. State of Andhra Pradesh (1986) 3 SCC 501 wherein the payment of gratuity from a specified date of retirement was held to be not unconstitutional. This Court held as under:2. … Similar is the case with regard to gratuity which has already been paid to the petitioners on the then prevailing basis as it obtained at the time of their respective dates of retirement. The amount got crystallized on the date of retirement on the basis of the salary drawn by him on the date of retirement. And it was already paid to them on that footing. The transaction is completed and closed. There is no scope for upward or downward revision in the context of upward or downward revision of the formula evolved later on in future unless the provision in this behalf expressly so provides retrospectively (downward revision may not be legally permissible even)….11. Similar view was taken in a judgment reported as Union of India v. All India Services Pensioners Association & Anr. (1988) 2 SCC 580 wherein it was held that the pension is payable periodically as long as the pensioner is alive whereas the gratuity is ordinarily paid only once on retirement. This Court held as under:8. From the foregoing it is clear that this Court has made a distinction between the pension payable on retirement and the gratuity payable on retirement. While pension is payable periodically as long as the pensioner is alive, gratuity is ordinarily paid only once on retirement. No other decision of this Court which has taken a view contrary to the decision of Thakkar and Ray, JJ. in Andhra Pradesh State Government Pensioners Association case [(1986) 3 SCC 501 : 1986 SCC (L&S) 676] and to the decision in N.L. Abhyankar case [(1984) 3 SCC 125 : 1984 SCC (L&S) 486] has been brought to out notice. The observations made in these two cases are binding on us insofar as the applicability of the rule in D.S. Nakara case [(1983) 1 SCC 305 : 1983 SCC (L&S) 145 : (1983) 2 SCR 165 : 1983 UPSC 263] to the liability of the Government to pay gratuity on retirement. We respectfully agree with the views expressed in those decisions. It is also not shown that the Government notification in question either expressly or by necessary implication directs that those who had retired prior to 1-1- 1973 would be entitled to any additional amount by way of gratuity. The Tribunal was, therefore, in error in upholding that gratuity was payable in accordance with the Government Notification No. 33/12/73-AISC(ii) dated 24-1- 1975 to all those members of the All-India Services who had retired prior to 1-1-1973.13. However, what is exempt from the Income Tax Act is the amount of gratuity received under the Gratuity Act to the extent it does not exceed an amount calculated in accordance with the provisions of sub-sections (2) and (3) of Section 4 of the Gratuity Act. The Gratuity Act contemplated rupees ten lakhs as the amount of gratuity only from 24.5.2010. Such gratuity is the amount payable only once. Thus, the cut-off date cannot be said to be illegal, it being one-time payment. Therefore, such amendment in the Gratuity Act cannot be treated to be retrospective. Therefore, the provisions of the statute cannot be said to be retrospective.14. In a judgment of this Court reported as Sri Vijayalakshmi Rice Mills, New Contractors Co. & Ors. v. State of Andhra Pradesh (1976) 3 SCC 37, the new rate of supply of rice was made effective on 23.3.1964. The question arose was as to whether the rice supplied earlier would have the benefit of beneficial provision as contained in the later notification dated 23.3.1964. This Court held that price as was prevalent on the date of sale alone would be payable and not the higher price introduced by amendment. It was held as under:6. The aforesaid sales in the instant cases having been made by the appellants before the coming into force of the Rice (Andhra Pradesh) Price Control (Third Amendment) Order, 1964, and the property in the goods having passed to the Government of Andhra Pradesh on the dates the supplies were made, the appellants had to be paid only at the controlled price obtaining on the dates the sales were effected and not at the increased price which came into operation subsequently.16. In a recent judgment reported as Himachal Road Transport Corporation & Anr. v. Himachal Road Transport Corporation Retired Employees Union (2021) 4 SCC 502, in the case of payment of increased quantum of death-cum-retirement gratuity, it was held that the cutoff date cannot be said to be arbitrary which was fixed keeping in view financial constraints. This Court held as under:18. Though there are long line of cases, where validity of fixation of cut-off date is considered by this Court, we confine and refer to the case law which is relevant to the facts of the case on hand. In State of Punjab v. Amar Nath Goyal [State of Punjab v. Amar Nath Goyal, (2005) 6 SCC 754 : 2005 SCC (L&S) 910] , while examining the validity of cut-off date fixed for grant of benefit of increased quantum of death-cum-retirement gratuity, this Court has held that the financial constraint pleaded by the Government, was a valid ground for fixation of cut-off date and such fixation was not arbitrary, irrational or violative of Article 14 of the Constitution…….17. In view of the above, we find that the date of commencement fixed by the Executive in exercise of power delegated by the Amending Act cannot be treated to be retrospective as the benefit of higher gratuity is one-time available to the employees only after the commencement of the Amending Act. The benefit paid to the appellants under the office memorandum is not entitled to exemption in view of specific language of Section 10(10)(ii) of the Income Tax Act.
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Manujendra Dutt Vs. Purendu Prosad Roy Chowdhury & Ors | Bhushan (1949) 53 Cal WN 859). In Monmatha Nath v. Banarasi. (1959) 63 Cal WN 824 at p. 831 the High Court at Calcutta while dealing with the present Act held that in matters not dealt with by the Act it would still be the Transfer of Property Act which would apply, for the Thika Tenancy Act is not a complete Code and deals only with, some aspects of Thika Tenancy. It does not provide for the rights and liabilities of the lessor and lessee in a Thika tenancy and therefore, for those purposes, one has still to look to the Transfer of Property Act. The only decision which has taken a contrary view is R. Krishnamurthy v. Parthasarathy, AIR 1949 Mad 780 where it was held that Section 7 of the Madras Buildings (Lease and Rent Contro1) Act (XV of 1946) had its own scheme of procedure and therefore there was no question of an attempt to reconcile that Act with the Transfer of Property Act. On that view, the High Court held that an application for eviction could be made to the Rent Controller even before the contractual tenancy was terminated by a notice to quit. That decision is clearly contrary to the decisions of this Court in Abasbhais Case, AIR 1964 SC 1341 and Mangilals Case, AIR 1965 SC 101 (Supra) and therefore is not correct law. 6. It was however, argued by Mr. Sarjooprasad on behalf of the respondents that on the footing that the provisions of the Thika Act could only be availed of by a landlord after the termination of the contractual tenancy no notice either under Section106 of the Transfer of Property Act or under the lease was necessary in the present case as the lease expired by efflux of time and no renewal was agreed upon by the parties. Therefore, since the lease expired the lessee in the absence of any such renewal was bound to hand over vacant possession to the respondents as provided by clause 7 of the said lease. Mr. Sarjoo-prasad argued that in the absence of any renewal of the lease if the appellant continued to be in possession was that of a trespasser and therefore there was that no question of any notice having to be given to him. The construction suggested by Mr. Sarjooprasad cannot be upheld as such a construction would be contrary to the express language of the proviso to clause 7 of the lease. As already stated clause 7 requires that on the determination of the lease by efflux of time or earlier termination the lessee has to hand over vacant possession of the land in its original position after removing the structures constructed thereon by him. If the structures are not so removed the lessee has to sell them to the lessor at a valuation to be fixed by the lessors Engineer. What would happen in a case where the tenant is not informed and does not know whether his lease which is for a fixed term would be extended by a renewal or otherwise? If there is no provision for an option to renew and the landlord does not extend the term, he has, of course, to vacate on the expiry of the term. But where the lease provides for an option and the tenant exercises then option and the tenant exercises the option it is but fair and equitable that he must know in good time whether the lessor agrees to the renewal or not. It is to provide against a contingency where the lessee would have to quit without a fair opportunity to dispose of the structures he has put up that the proviso was added in Cl. 7 of the lease and that proviso must be given effect to. The proviso lays down the condition of six months notice ending with the expiry of the term clearly to enable the lessee to remove the structures, if need be, if the lease was not renewed or extended. The object of inserting such a condition being clear as aforesaid it would not be right to construe clause 7 and its proviso in the manner suggested by the respondents. 7. To summarise the position: The Thika Tenancy Act does not confer any additional rights on a landlord but on the contrary imposes certain restrictions on his right to evict a tenant under the general law or under the contract of lease. The Thika Act like other Rent Acts enacted in various States imposes certain further restrictions on the right of the landlord to evict his tenant and lays down that the status of irremovability of a tenant cannot be got rid of except on specified grounds set out in Section 3. The right of the appellant therefore to have a notice as provided for by the proviso to clause 7 of the Lease was not in any manner affected by Section 3 of the Thika Act. The effect of the non obstante clause was that even where a landlord has duly terminated the contractual tenancy or is otherwise entitled to evict his tenant he would still be entitled to a decree for eviction provided that his claim for possession falls under any one or more of the grounds in Section 3. Before therefore the respondents could be said to be entitled to a decree for eviction they had first to give six months notice as required by the proviso to clause 7 of the lease and such notice not having been admittedly given their suit for eviction could not succeed. 8. In our view the construction placed by the High Court on Section 3 was not correct and the High Court was wrong in holding that the words "notwithstanding anything contained in any other law for the time being in force or in any contract" absolved the respondents from their obligation to give the six months notice to the appellant before claiming from him vacant possession of the land i question. | 1[ds]Though Section 26 was deleted by the Amendment Act 1953 the deletion would not affect pending proceedings and would not deprive the Controller of his jurisdiction to try such proceedings pending before him at the date when the Amendment Act: came into force. Though the Amendment Act did not contain any saving clause, under S.8 of the Bengal General Clauses Act. 1899, the transfer of the suit having been lawfully made under Section 29 of the Act its deletion would not have the effect of altering the law applicable to the claim in the litigation There is nothing in Section 8 of the Amending Act of 1953 suggesting a different intention and therefore the deletion would not affect the previous operation of Section 5 of the Calcutta Thika Tenancy Act or the transfer of the suit to the Controller or anything duly done under Section 29. That being the correct position in law the High Court was right in holding that in spite of the deletion of Section 29 the Controller still had the jurisdiction to proceed with the said suit transferred to himTherefore, a landlord is entitled to a decree for eviction only (a) if he has first terminated the contractual tenancy and (b) where the landlord fulfils the requirements of one or more of the several grounds in Section 3. The Thika Tenancy Act like similar Rent Acts passed in different States is intended to prevent indiscriminate eviction of tenants and is intended to be a protective statute to safeguard security of possession of tenants and therefore should be construed in the light of its being a social legislation. What Section 3 therefore does is to provide that even where a landlord has terminated the contractual tenancy by a proper notice such landlord can succeed in evicting his tenant provided that he falls under one or more of the clauses of that section. The word "notwithstanding" in Section 3 on a true construction therefore means that even where the contractual tenancy is properly terminated, notwithstanding the landlords right to possession under the Transfer of Property Act or the contract of lease he cannot evict the tenant unless he satisfied any one of the grounds set out in Section 3. Rent Acts are not ordinarily intended to interfere with contractual leases and are Acts for the protection of tenants and are consequently restrictive and not enabling, conferring no new rights of action but restricting, the existing rights either under the contract or under the general law. It is well settled that statutory tenancy normally arises when a tenant under a lease holds over, that is, he remains in possession after the expiry or determination of the contractual tenancy. A statutory tenancy therefore comes into existence where a contractual tenant retains possession after the contract has been determined. The right to hold over, that is, the right of irremovability, thus is a right which comes into existence after the expiration of the lease and until the lease is terminated or expires by efflux of time the tenant need not seek protection under the Rent Act. For, he is protected by his lease in breach of which he cannot be evictedIt does not provide for the rights and liabilities of the lessor and lessee in a Thika tenancy and therefore, for those purposes, one has still to look to the Transfer of Property Act. The only decision which has taken a contrary view is R. Krishnamurthy v. Parthasarathy, AIR 1949 Mad 780 where it was held that Section 7 of the Madras Buildings (Lease and Rent Contro1) Act (XV of 1946) had its own scheme of procedure and therefore there was no question of an attempt to reconcile that Act with the Transfer of Property Act. On that view, the High Court held that an application for eviction could be made to the Rent Controller even before the contractual tenancy was terminated by a notice to quit. That decision is clearly contrary to the decisions of this Court in Abasbhais Case, AIR 1964 SC 1341 and Mangilals Case, AIR 1965 SC 101 (Supra) and therefore is not correct lawAs already stated clause 7 requires that on the determination of the lease by efflux of time or earlier termination the lessee has to hand over vacant possession of the land in its original position after removing the structures constructed thereon by him. If the structures are not so removed the lessee has to sell them to the lessor at a valuation to be fixed by the lessors Engineer. What would happen in a case where the tenant is not informed and does not know whether his lease which is for a fixed term would be extended by a renewal or otherwise? If there is no provision for an option to renew and the landlord does not extend the term, he has, of course, to vacate on the expiry of the term. But where the lease provides for an option and the tenant exercises then option and the tenant exercises the option it is but fair and equitable that he must know in good time whether the lessor agrees to the renewal or not. It is to provide against a contingency where the lessee would have to quit without a fair opportunity to dispose of the structures he has put up that the proviso was added in Cl. 7 of the lease and that proviso must be given effect to. The proviso lays down the condition of six months notice ending with the expiry of the term clearly to enable the lessee to remove the structures, if need be, if the lease was not renewed or extended. The object of inserting such a condition being clear as aforesaid it would not be right to construe clause 7 and its proviso in the manner suggested by the respondents7. To summarise the position: The Thika Tenancy Act does not confer any additional rights on a landlord but on the contrary imposes certain restrictions on his right to evict a tenant under the general law or under the contract of lease. The Thika Act like other Rent Acts enacted in various States imposes certain further restrictions on the right of the landlord to evict his tenant and lays down that the status of irremovability of a tenant cannot be got rid of except on specified grounds set out in Section 3. The right of the appellant therefore to have a notice as provided for by the proviso to clause 7 of the Lease was not in any manner affected by Section 3 of the Thika Act. The effect of the non obstante clause was that even where a landlord has duly terminated the contractual tenancy or is otherwise entitled to evict his tenant he would still be entitled to a decree for eviction provided that his claim for possession falls under any one or more of the grounds in Section 3. Before therefore the respondents could be said to be entitled to a decree for eviction they had first to give six months notice as required by the proviso to clause 7 of the lease and such notice not having been admittedly given their suit for eviction could not succeed8. In our view the construction placed by the High Court on Section 3 was not correct and the High Court was wrong in holding that the words "notwithstanding anything contained in any other law for the time being in force or in any contract" absolved the respondents from their obligation to give the six months notice to the appellant before claiming from him vacant possession of the land i question. | 1 | 3,899 | 1,349 | ### 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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Bhushan (1949) 53 Cal WN 859). In Monmatha Nath v. Banarasi. (1959) 63 Cal WN 824 at p. 831 the High Court at Calcutta while dealing with the present Act held that in matters not dealt with by the Act it would still be the Transfer of Property Act which would apply, for the Thika Tenancy Act is not a complete Code and deals only with, some aspects of Thika Tenancy. It does not provide for the rights and liabilities of the lessor and lessee in a Thika tenancy and therefore, for those purposes, one has still to look to the Transfer of Property Act. The only decision which has taken a contrary view is R. Krishnamurthy v. Parthasarathy, AIR 1949 Mad 780 where it was held that Section 7 of the Madras Buildings (Lease and Rent Contro1) Act (XV of 1946) had its own scheme of procedure and therefore there was no question of an attempt to reconcile that Act with the Transfer of Property Act. On that view, the High Court held that an application for eviction could be made to the Rent Controller even before the contractual tenancy was terminated by a notice to quit. That decision is clearly contrary to the decisions of this Court in Abasbhais Case, AIR 1964 SC 1341 and Mangilals Case, AIR 1965 SC 101 (Supra) and therefore is not correct law. 6. It was however, argued by Mr. Sarjooprasad on behalf of the respondents that on the footing that the provisions of the Thika Act could only be availed of by a landlord after the termination of the contractual tenancy no notice either under Section106 of the Transfer of Property Act or under the lease was necessary in the present case as the lease expired by efflux of time and no renewal was agreed upon by the parties. Therefore, since the lease expired the lessee in the absence of any such renewal was bound to hand over vacant possession to the respondents as provided by clause 7 of the said lease. Mr. Sarjoo-prasad argued that in the absence of any renewal of the lease if the appellant continued to be in possession was that of a trespasser and therefore there was that no question of any notice having to be given to him. The construction suggested by Mr. Sarjooprasad cannot be upheld as such a construction would be contrary to the express language of the proviso to clause 7 of the lease. As already stated clause 7 requires that on the determination of the lease by efflux of time or earlier termination the lessee has to hand over vacant possession of the land in its original position after removing the structures constructed thereon by him. If the structures are not so removed the lessee has to sell them to the lessor at a valuation to be fixed by the lessors Engineer. What would happen in a case where the tenant is not informed and does not know whether his lease which is for a fixed term would be extended by a renewal or otherwise? If there is no provision for an option to renew and the landlord does not extend the term, he has, of course, to vacate on the expiry of the term. But where the lease provides for an option and the tenant exercises then option and the tenant exercises the option it is but fair and equitable that he must know in good time whether the lessor agrees to the renewal or not. It is to provide against a contingency where the lessee would have to quit without a fair opportunity to dispose of the structures he has put up that the proviso was added in Cl. 7 of the lease and that proviso must be given effect to. The proviso lays down the condition of six months notice ending with the expiry of the term clearly to enable the lessee to remove the structures, if need be, if the lease was not renewed or extended. The object of inserting such a condition being clear as aforesaid it would not be right to construe clause 7 and its proviso in the manner suggested by the respondents. 7. To summarise the position: The Thika Tenancy Act does not confer any additional rights on a landlord but on the contrary imposes certain restrictions on his right to evict a tenant under the general law or under the contract of lease. The Thika Act like other Rent Acts enacted in various States imposes certain further restrictions on the right of the landlord to evict his tenant and lays down that the status of irremovability of a tenant cannot be got rid of except on specified grounds set out in Section 3. The right of the appellant therefore to have a notice as provided for by the proviso to clause 7 of the Lease was not in any manner affected by Section 3 of the Thika Act. The effect of the non obstante clause was that even where a landlord has duly terminated the contractual tenancy or is otherwise entitled to evict his tenant he would still be entitled to a decree for eviction provided that his claim for possession falls under any one or more of the grounds in Section 3. Before therefore the respondents could be said to be entitled to a decree for eviction they had first to give six months notice as required by the proviso to clause 7 of the lease and such notice not having been admittedly given their suit for eviction could not succeed. 8. In our view the construction placed by the High Court on Section 3 was not correct and the High Court was wrong in holding that the words "notwithstanding anything contained in any other law for the time being in force or in any contract" absolved the respondents from their obligation to give the six months notice to the appellant before claiming from him vacant possession of the land i question.
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even where a landlord has terminated the contractual tenancy by a proper notice such landlord can succeed in evicting his tenant provided that he falls under one or more of the clauses of that section. The word "notwithstanding" in Section 3 on a true construction therefore means that even where the contractual tenancy is properly terminated, notwithstanding the landlords right to possession under the Transfer of Property Act or the contract of lease he cannot evict the tenant unless he satisfied any one of the grounds set out in Section 3. Rent Acts are not ordinarily intended to interfere with contractual leases and are Acts for the protection of tenants and are consequently restrictive and not enabling, conferring no new rights of action but restricting, the existing rights either under the contract or under the general law. It is well settled that statutory tenancy normally arises when a tenant under a lease holds over, that is, he remains in possession after the expiry or determination of the contractual tenancy. A statutory tenancy therefore comes into existence where a contractual tenant retains possession after the contract has been determined. The right to hold over, that is, the right of irremovability, thus is a right which comes into existence after the expiration of the lease and until the lease is terminated or expires by efflux of time the tenant need not seek protection under the Rent Act. For, he is protected by his lease in breach of which he cannot be evictedIt does not provide for the rights and liabilities of the lessor and lessee in a Thika tenancy and therefore, for those purposes, one has still to look to the Transfer of Property Act. The only decision which has taken a contrary view is R. Krishnamurthy v. Parthasarathy, AIR 1949 Mad 780 where it was held that Section 7 of the Madras Buildings (Lease and Rent Contro1) Act (XV of 1946) had its own scheme of procedure and therefore there was no question of an attempt to reconcile that Act with the Transfer of Property Act. On that view, the High Court held that an application for eviction could be made to the Rent Controller even before the contractual tenancy was terminated by a notice to quit. That decision is clearly contrary to the decisions of this Court in Abasbhais Case, AIR 1964 SC 1341 and Mangilals Case, AIR 1965 SC 101 (Supra) and therefore is not correct lawAs already stated clause 7 requires that on the determination of the lease by efflux of time or earlier termination the lessee has to hand over vacant possession of the land in its original position after removing the structures constructed thereon by him. If the structures are not so removed the lessee has to sell them to the lessor at a valuation to be fixed by the lessors Engineer. What would happen in a case where the tenant is not informed and does not know whether his lease which is for a fixed term would be extended by a renewal or otherwise? If there is no provision for an option to renew and the landlord does not extend the term, he has, of course, to vacate on the expiry of the term. But where the lease provides for an option and the tenant exercises then option and the tenant exercises the option it is but fair and equitable that he must know in good time whether the lessor agrees to the renewal or not. It is to provide against a contingency where the lessee would have to quit without a fair opportunity to dispose of the structures he has put up that the proviso was added in Cl. 7 of the lease and that proviso must be given effect to. The proviso lays down the condition of six months notice ending with the expiry of the term clearly to enable the lessee to remove the structures, if need be, if the lease was not renewed or extended. The object of inserting such a condition being clear as aforesaid it would not be right to construe clause 7 and its proviso in the manner suggested by the respondents7. To summarise the position: The Thika Tenancy Act does not confer any additional rights on a landlord but on the contrary imposes certain restrictions on his right to evict a tenant under the general law or under the contract of lease. The Thika Act like other Rent Acts enacted in various States imposes certain further restrictions on the right of the landlord to evict his tenant and lays down that the status of irremovability of a tenant cannot be got rid of except on specified grounds set out in Section 3. The right of the appellant therefore to have a notice as provided for by the proviso to clause 7 of the Lease was not in any manner affected by Section 3 of the Thika Act. The effect of the non obstante clause was that even where a landlord has duly terminated the contractual tenancy or is otherwise entitled to evict his tenant he would still be entitled to a decree for eviction provided that his claim for possession falls under any one or more of the grounds in Section 3. Before therefore the respondents could be said to be entitled to a decree for eviction they had first to give six months notice as required by the proviso to clause 7 of the lease and such notice not having been admittedly given their suit for eviction could not succeed8. In our view the construction placed by the High Court on Section 3 was not correct and the High Court was wrong in holding that the words "notwithstanding anything contained in any other law for the time being in force or in any contract" absolved the respondents from their obligation to give the six months notice to the appellant before claiming from him vacant possession of the land i question.
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State Trading Corporation of India Vs. Jaisons Clothing Corporation | may be granted is where it is proved that the bank knows that any demand for payment already made or which may thereafter be made will clearly be fraudulent. But, the evidence must be clear, both as to the fact of fraud and as to the banks knowledge. It would certainly not normally be sufficient that this rests on the uncorroborated statement of the customer, for irreparable damage can be done to a banks credit in the relatively brief time which must elapse between the granting of such an injunction and an application by the bank to have it discharged." 9. Under those circumstances, it was also held that the plea of fraud must be in the nature of an egregious nature as to vitiate the entire underlying transaction of the bank guarantee. It is fraud of that beneficiary and not the fraud of somebody else that would make the Court to grant the order of injunction as asked for. If the bank detects with the minimal investigation the fraudulent action of the seller, the payment could be refused is not a fraud as contemplated under the guarantee. We respectfully agree with that above ratio. This view was reiterated in General Electric Technical Services Co. Inc. v. Punj Sons (P) Ltd., 1991(4) SCC 230. This Court has held in paragraph 9 thus : "The question is whether the court was justified in restraining the Bank from paying to GETSCO under the bank guarantee at the instance of respondent 1. The law as to the contractual obligations under the bank guarantee has been well settled in a catena of cases. Almost all such cases have been considered in U.P. Co-op. Federation Ltd. v. Singh Consultants & Engineers (P) Ltd., 1988(1) SCC 174." 10. Following that ratio it was observed that : "the Bank must honour the bank guarantee free from interference by the courts. Otherwise, trust in commerce internal and international would be irreparably damaged. It is only in exceptional cases that is to say in case of fraud or in case of irretrievable injustice, the court should interfere. In the concurring opinion one of us (K. Jagannatha Shetty, J.) has observed that whether it is a traditional bond or performance guarantee, the obligation of the Bank appears to be the same. If the documentary credits are irrevocable and independent, the Bank must pay when demand is made. Since the Bank pledges its own credit involving its reputation, it has no defence except in the case of fraud. The Banks obligations of course should not be extended to protect the unscrupulous party, that is, the party who is responsible for the fraud. But the banker must be sure of his ground before declining to pay. The nature of the fraud that the courts talk about is fraud of an "egregious nature as to vitiate the entire underlying transaction". It is fraud of the beneficiary, not the fraud of somebody else." 11. To the same effect is the decision of this Court in Maharashtra State Electricity Board, Bombay v. Official Liquidator, High Court, Ernakulam, 1982(3) SCC 358, where this Court has reiterated that the injunction shall not be issued in honouring the bank guarantees which jeopardises the sanctity attached to the commercial transactions and such a payment, if made, is open to the bank to have recourse to the securities given by the company on whose behalf the bank guarantee was given. 12. It was also further reiterated in Syndicate Bank v. Vijay Kr., 1992(2) SCC 330. 13. The grant of injunction is a discretionary power in equity jurisdiction. The contract of guarantee is a trilateral contract which the bank has undertaken to unconditionally and unequivocally abide by the terms of the contract. It is an act of trust with full faith to facilitate free flow of trade and commerce in internal or international trade or business. It creates an irrevocable obligation to perform the contract in terms thereof. On the occurrence of the events mentioned therein the bank guarantee becomes enforceable. The subsequent disputes in the performance of the, contract does not give rise to a cause nor is the court justified on that basis, to issue an injunction from enforcing the contract, i.e., bank guarantee. The parties are not left with no remedy. In the event of the dispute in the main contract ends in the partys favour, he/it is entitled to damages or other consequential reliefs.14. It is settled law that the Court, before issuing the injunction under Order 39, Rules 1 and 2, C.P.C. should prima facie be satisfied that there is triable issue strong prima facie case of fraud or irretrievable injury and balance of convenience is in favour of issuing injunction to prevent irremedial injury. The court should normally insist upon enforcement of the bank guarantee and the court should not interfere with the enforcement of the contract of guarantee unless there is a specific plea of fraud or special equities in favour of the plaintiff. He must necessarily plead and produce all the necessary evidence in proof of the fraud in execution of the contract of the guarantee, but not the contract either of the original contract or any of the subsequent events that may happen as a ground for fraud.15. Under these circumstances, the High Court was wholly wrong in its conclusion that the respondent has proved prima facie case for granting injunction in favour of enforcement of the bank guarantee, admittedly entered into by the respondent with the appellant. The learned single Judge was quite right in refusing to issue the injunction in terms of clause 17 of the contract and the bank guarantee given by the respondent.16. Pending appeal, this Court directed the respondent to deposit the amount in the Registry and the Registry was directed to keep the amount in fixed deposit which would earn interest. Since the amount has already been deposited and it is earning interest, it is open to the appellant to withdraw the same from the Registry. | 1[ds]7. None of the conditions are satisfied or applicable to the facts in this case. It is not the case that there is any fraud committed by the appellant in entering into contract with the respondent in particular with reference to clause 17 of the Contract dated April 20, 1985. Nor is there any fraud into formation or execution of bank guarantee. From the content on of the appellant it would appear that on account of negotiations between the appellant the principal foreignDhabi Municipality, the supply of 7000 M.T. ofbasmati rice was not made in terms of the principal contract entered into by the appellant with the foreign buyer. But there is no clause in the contract dated April 20, 1985 entered between the appellant and the respondents that the contract with the respondents is coterminus withor frustration of the contract with the foreign buyer. In the absence of such recital the necessary consequences is that irrespective of the frustration of the contract or cancellation of the contract between the principal supplier, namely, the appellant and the foreign buyer, namely, Abu Dhabi Municipality, the respondent was under the contract obligated to make supply of 3000 M.T. ofbasmati rice in terms thereof. The certificate issued by the officer clearly shows that there was a failure or default committed by the respondent in supplying the rice as contracted for. Under those circumstances, it is not a case of any fraud, but at best, it is a case of cancellation of the contract by thesupplier to the foreign buyer. But that does not have the effect of frustrating or cancelling the contract which the respondent had entered into with the appellant. Therefore, even from the affidavit evidence given in support of the application for injunction, not only no plea of fraud was made but also there was no plea of irretrievable injustice that the respondent was likely to suffer on account of the enforcement of the bank guaranteean exception carved out by this Court in U.P.Federation Ltd. v. Singh ConsultantsEngineers (P.) Ltd., 1988(1) SCC 174. Therein this Court after elaborate consideration of all the decisions, held in para 34 that on the basis of these principles the commitments of bank guarantee must be honoured free from interference by the courts. Otherwise, trust in commerce internal and international would be irreparably damaged. It is only in exceptional cases, that is to say, in case of fraud or in case of irretrievable injustice, the court would interfere.The grant of injunction is a discretionary power in equity jurisdiction. The contract of guarantee is a trilateral contract which the bank has undertaken to unconditionally and unequivocally abide by the terms of the contract. It is an act of trust with full faith to facilitate free flow of trade and commerce in internal or international trade or business. It creates an irrevocable obligation to perform the contract in terms thereof. On the occurrence of the events mentioned therein the bank guarantee becomes enforceable. The subsequent disputes in the performance of the, contract does not give rise to a cause nor is the court justified on that basis, to issue an injunction from enforcing the contract, i.e., bank guarantee. The parties are not left with no remedy. In the event of the dispute in the main contract ends in the partys favour, he/it is entitled to damages or other consequential reliefs.14. It is settled law that the Court, before issuing the injunction under Order 39, Rules 1 and 2, C.P.C. should prima facie be satisfied that there is triable issue strong prima facie case of fraud or irretrievable injury and balance of convenience is in favour of issuing injunction to prevent irremedial injury. The court should normally insist upon enforcement of the bank guarantee and the court should not interfere with the enforcement of the contract of guarantee unless there is a specific plea of fraud or special equities in favour of the plaintiff. He must necessarily plead and produce all the necessary evidence in proof of the fraud in execution of the contract of the guarantee, but not the contract either of the original contract or any of the subsequent events that may happen as a ground for fraud.15. Under these circumstances, the High Court was wholly wrong in its conclusion that the respondent has proved prima facie case for granting injunction in favour of enforcement of the bank guarantee, admittedly entered into by the respondent with the appellant. The learned single Judge was quite right in refusing to issue the injunction in terms of clause 17 of the contract and the bank guarantee given by the respondent.16. Pending appeal, this Court directed the respondent to deposit the amount in the Registry and the Registry was directed to keep the amount in fixed deposit which would earn interest. Since the amount has already been deposited and it is earning interest, it is open to the appellant to withdraw the same from the Registry. | 1 | 3,118 | 897 | ### 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:
may be granted is where it is proved that the bank knows that any demand for payment already made or which may thereafter be made will clearly be fraudulent. But, the evidence must be clear, both as to the fact of fraud and as to the banks knowledge. It would certainly not normally be sufficient that this rests on the uncorroborated statement of the customer, for irreparable damage can be done to a banks credit in the relatively brief time which must elapse between the granting of such an injunction and an application by the bank to have it discharged." 9. Under those circumstances, it was also held that the plea of fraud must be in the nature of an egregious nature as to vitiate the entire underlying transaction of the bank guarantee. It is fraud of that beneficiary and not the fraud of somebody else that would make the Court to grant the order of injunction as asked for. If the bank detects with the minimal investigation the fraudulent action of the seller, the payment could be refused is not a fraud as contemplated under the guarantee. We respectfully agree with that above ratio. This view was reiterated in General Electric Technical Services Co. Inc. v. Punj Sons (P) Ltd., 1991(4) SCC 230. This Court has held in paragraph 9 thus : "The question is whether the court was justified in restraining the Bank from paying to GETSCO under the bank guarantee at the instance of respondent 1. The law as to the contractual obligations under the bank guarantee has been well settled in a catena of cases. Almost all such cases have been considered in U.P. Co-op. Federation Ltd. v. Singh Consultants & Engineers (P) Ltd., 1988(1) SCC 174." 10. Following that ratio it was observed that : "the Bank must honour the bank guarantee free from interference by the courts. Otherwise, trust in commerce internal and international would be irreparably damaged. It is only in exceptional cases that is to say in case of fraud or in case of irretrievable injustice, the court should interfere. In the concurring opinion one of us (K. Jagannatha Shetty, J.) has observed that whether it is a traditional bond or performance guarantee, the obligation of the Bank appears to be the same. If the documentary credits are irrevocable and independent, the Bank must pay when demand is made. Since the Bank pledges its own credit involving its reputation, it has no defence except in the case of fraud. The Banks obligations of course should not be extended to protect the unscrupulous party, that is, the party who is responsible for the fraud. But the banker must be sure of his ground before declining to pay. The nature of the fraud that the courts talk about is fraud of an "egregious nature as to vitiate the entire underlying transaction". It is fraud of the beneficiary, not the fraud of somebody else." 11. To the same effect is the decision of this Court in Maharashtra State Electricity Board, Bombay v. Official Liquidator, High Court, Ernakulam, 1982(3) SCC 358, where this Court has reiterated that the injunction shall not be issued in honouring the bank guarantees which jeopardises the sanctity attached to the commercial transactions and such a payment, if made, is open to the bank to have recourse to the securities given by the company on whose behalf the bank guarantee was given. 12. It was also further reiterated in Syndicate Bank v. Vijay Kr., 1992(2) SCC 330. 13. The grant of injunction is a discretionary power in equity jurisdiction. The contract of guarantee is a trilateral contract which the bank has undertaken to unconditionally and unequivocally abide by the terms of the contract. It is an act of trust with full faith to facilitate free flow of trade and commerce in internal or international trade or business. It creates an irrevocable obligation to perform the contract in terms thereof. On the occurrence of the events mentioned therein the bank guarantee becomes enforceable. The subsequent disputes in the performance of the, contract does not give rise to a cause nor is the court justified on that basis, to issue an injunction from enforcing the contract, i.e., bank guarantee. The parties are not left with no remedy. In the event of the dispute in the main contract ends in the partys favour, he/it is entitled to damages or other consequential reliefs.14. It is settled law that the Court, before issuing the injunction under Order 39, Rules 1 and 2, C.P.C. should prima facie be satisfied that there is triable issue strong prima facie case of fraud or irretrievable injury and balance of convenience is in favour of issuing injunction to prevent irremedial injury. The court should normally insist upon enforcement of the bank guarantee and the court should not interfere with the enforcement of the contract of guarantee unless there is a specific plea of fraud or special equities in favour of the plaintiff. He must necessarily plead and produce all the necessary evidence in proof of the fraud in execution of the contract of the guarantee, but not the contract either of the original contract or any of the subsequent events that may happen as a ground for fraud.15. Under these circumstances, the High Court was wholly wrong in its conclusion that the respondent has proved prima facie case for granting injunction in favour of enforcement of the bank guarantee, admittedly entered into by the respondent with the appellant. The learned single Judge was quite right in refusing to issue the injunction in terms of clause 17 of the contract and the bank guarantee given by the respondent.16. Pending appeal, this Court directed the respondent to deposit the amount in the Registry and the Registry was directed to keep the amount in fixed deposit which would earn interest. Since the amount has already been deposited and it is earning interest, it is open to the appellant to withdraw the same from the Registry.
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7. None of the conditions are satisfied or applicable to the facts in this case. It is not the case that there is any fraud committed by the appellant in entering into contract with the respondent in particular with reference to clause 17 of the Contract dated April 20, 1985. Nor is there any fraud into formation or execution of bank guarantee. From the content on of the appellant it would appear that on account of negotiations between the appellant the principal foreignDhabi Municipality, the supply of 7000 M.T. ofbasmati rice was not made in terms of the principal contract entered into by the appellant with the foreign buyer. But there is no clause in the contract dated April 20, 1985 entered between the appellant and the respondents that the contract with the respondents is coterminus withor frustration of the contract with the foreign buyer. In the absence of such recital the necessary consequences is that irrespective of the frustration of the contract or cancellation of the contract between the principal supplier, namely, the appellant and the foreign buyer, namely, Abu Dhabi Municipality, the respondent was under the contract obligated to make supply of 3000 M.T. ofbasmati rice in terms thereof. The certificate issued by the officer clearly shows that there was a failure or default committed by the respondent in supplying the rice as contracted for. Under those circumstances, it is not a case of any fraud, but at best, it is a case of cancellation of the contract by thesupplier to the foreign buyer. But that does not have the effect of frustrating or cancelling the contract which the respondent had entered into with the appellant. Therefore, even from the affidavit evidence given in support of the application for injunction, not only no plea of fraud was made but also there was no plea of irretrievable injustice that the respondent was likely to suffer on account of the enforcement of the bank guaranteean exception carved out by this Court in U.P.Federation Ltd. v. Singh ConsultantsEngineers (P.) Ltd., 1988(1) SCC 174. Therein this Court after elaborate consideration of all the decisions, held in para 34 that on the basis of these principles the commitments of bank guarantee must be honoured free from interference by the courts. Otherwise, trust in commerce internal and international would be irreparably damaged. It is only in exceptional cases, that is to say, in case of fraud or in case of irretrievable injustice, the court would interfere.The grant of injunction is a discretionary power in equity jurisdiction. The contract of guarantee is a trilateral contract which the bank has undertaken to unconditionally and unequivocally abide by the terms of the contract. It is an act of trust with full faith to facilitate free flow of trade and commerce in internal or international trade or business. It creates an irrevocable obligation to perform the contract in terms thereof. On the occurrence of the events mentioned therein the bank guarantee becomes enforceable. The subsequent disputes in the performance of the, contract does not give rise to a cause nor is the court justified on that basis, to issue an injunction from enforcing the contract, i.e., bank guarantee. The parties are not left with no remedy. In the event of the dispute in the main contract ends in the partys favour, he/it is entitled to damages or other consequential reliefs.14. It is settled law that the Court, before issuing the injunction under Order 39, Rules 1 and 2, C.P.C. should prima facie be satisfied that there is triable issue strong prima facie case of fraud or irretrievable injury and balance of convenience is in favour of issuing injunction to prevent irremedial injury. The court should normally insist upon enforcement of the bank guarantee and the court should not interfere with the enforcement of the contract of guarantee unless there is a specific plea of fraud or special equities in favour of the plaintiff. He must necessarily plead and produce all the necessary evidence in proof of the fraud in execution of the contract of the guarantee, but not the contract either of the original contract or any of the subsequent events that may happen as a ground for fraud.15. Under these circumstances, the High Court was wholly wrong in its conclusion that the respondent has proved prima facie case for granting injunction in favour of enforcement of the bank guarantee, admittedly entered into by the respondent with the appellant. The learned single Judge was quite right in refusing to issue the injunction in terms of clause 17 of the contract and the bank guarantee given by the respondent.16. Pending appeal, this Court directed the respondent to deposit the amount in the Registry and the Registry was directed to keep the amount in fixed deposit which would earn interest. Since the amount has already been deposited and it is earning interest, it is open to the appellant to withdraw the same from the Registry.
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Prabhu Lal Vs. State of Rajasthan | no reason why Mohammed and Chhote Khan should have given false evidence against the appellant. The only criticism which was levelled on behalf of the appellant against the evidence of Mohammed and Chhote Khan was that both of them stated that while proceeding to Kesarpura from Eklingpura checkpost, they did not come across any checkpost of the State of Madhya Pradesh on the route and this, according to the appellant, showed that they were not telling the truth when they said that the truck proceeded to Kesarpura. We do not think any argument can be built on such a flimsy foundation. It is possible that both these witnesses being illiterate and uneducated coolies, might have forgotten that they passed through a checkpost of the State of Madhya Pradesh on way to Kesarpura or it is quite likely that the might have given this answer because they thought that the question which was being asked to them was in reference to a checkpost other than the one opposite Eklingpura checkpost. We cannot be persuaded to disbelieve the evidence of these two witnesses merely on the basis of this rather inconsequential infirmity. The evidence of these two witnesses clearly shows that the appellant was responsible for loading of sixty bags of wheat on the truck at Kanera, he was in the truck which carried the goods from Kanera to Kesarpura and it was he who unloaded the goods at Kesarpura.9. We have also the evidence of Nazeer Khan, who was the constable in-charge of Eklingpura checkpost on June 25, 1965. He stated in his evidence that the truck driven by Khaju Khan passed through Eklingpura checkpost on June 25, 1965 and at that time, when it was checked, the appellant gave to him the permit Ex. P-2 on which on endorsement was made by the appellant in his own hand and signature on its back was made by him, though he signed as Shankarlal. He also produced the register Ex. P-1 which contained entries signed by Khaju Khan and the appellant. An identification parade was held by the police after the arrest of the appellant and in this identification parade, Nazeer Khan correctly identified the appellant. This evidence also establishes that the appellant was in the truck transporting sixty bags of wheat when it was checked at Eklingpura checkpost.10. The aforesaid evidence is, in our opinion, sufficient to establish beyond reasonable doubt that the appellant transported sixty bags of wheat from Kanera to Kesarpura on June 25, 1965 claiming to do so on the basis of the permit Ex. P-2. The appellant, however, pleaded an alibi and contended that on that day he presided over a meeting of Jaura Gram Panchayat from 8 a.m. to 5 p.m. in his capacity as sarpanch of the panchayat. To establish this alibi the appellant led the evidence of three witnesses, namely, Badri Lal, Mohan Lal and Gopal Lal. The evidence of Badri Lal was totally useless as he did not say that the appellant was present at the meeting of Jaura Panchayat from 8 a.m. to 5 p.m. on June 25, 1965. He merely produced the mutation register showing entries in regard to 13 mutation cases decided at the meeting of the panchayat. He did not even know who was the patwari on that day. Mohan Lal deposed that he was the Secretary of Gram Panchayat, Jaura and produced the minute book of the meeting of the panchayat and stated that he was present at the meeting of the panchayat held on June 25, 1965, but in cross-examination, he was unable even to give the names of the persons who were present at that meeting, nor could he remember when the meeting concerned on that day. The evidence of this witness also, therefore, does not help to establish the alibi of the appellant. Gopal Lal, who was the patwari in-charge of Jaura Circle at the relevant date, was a little more specific than the other two witnesses. He stated that he attended the meeting of Jaura Panchayat on that day and he reached the place of the meeting at 11 a.m. He added that when he reached there, he found that the appellant was present at the meeting and was presiding over the meeting. This evidence would seem to suggest that the appellant was present at the meeting of Jaura Panchayat at 11 a.m. on June 25, 1965, but we do not think it is possible to accept this evidence at its face value. Gopal Lal confessed in cross-examination that this meeting of the Jaura Panchayat held on June 25, 1965 was the only meeting which he attended and that he did not even visit Jaura before or after the date of the meeting. It is indeed strange that he should have been conveniently present only at this crucial meeting. He could not even say who were the other members present at he meeting apart from the appellant. He admitted that Shanker Lal and not the appellant was the sarpanch of Jaura Panchayat and ordinarily it is the sarpanch who decides the mutation cases. He could not explain where Shankar Lal was on that day or how the appellant happened to preside over the meeting of the panchayat or why the mutation cases were all placed before the panchayat for decision. It is interesting to notice - and this was admitted by Gopal Lal - that his circle was Jaura, but if this be so, it is difficult to understand his earlier statement that he did not go to Jaura before or after the date of this meeting. He also admitted that he did not remember any facts in regard to what happened on June 25, 1965 and that whatever evidence he had given was after perusing the register. It will, therefore, be seen that the evidence of Gopal Lal is thoroughly unconvincing and no reliance can be placed upon it. We cannot, in the circumstances, hold that plea of alibi established by the appellant. | 0[ds]6. Now it is clear from Exs.5, which are the counterparts of the permit Ex.that the permit Ex.was dated June 8, 1965 and it was issued for the transport of sixty bags of rice and not sixty bags of wheat. That is also amply proved from the evidence of A. R. Niazi, District Supply Officer and Harakh Lal, Accountant in the District Supply Officer. It must, therefore, be taken to be established beyond doubtthat the permit Ex.was fraudulently and dishonestly tampered with after it was issued and the figures "18.6.65" was substituted for "8.6.65" and the word gehun was substituted for rice so as to make it appearthat the permit Ex.was issued on June 18, 1965 for transporting sixty bags of wheat. It does not appear from the record as to who was responsible for this dishonest and fraudulent alteration nor were there any charge against the appellant in respect of the same and we need not, therefore, pursue this line ofis the evidence of Madan Lal which clearly show that the appellant was connected with the firm of M/s. Dhanalal Shankarlal and that he played an active role in obtaining the permit Ex.Madan Lal stated in his evidence that he wrote an application for a permit for transport of foodgrain from Kanera to Chittorgarh on behalf of the firm of M/s. Dhanalal Shankarlal at the instance of the appellant and the application was signed by the appellant in his presence for and on behalf of the firm of M/s. Dhanalal Shankarlal. The application for permit, which is Ex.also bears the signature of the appellant on behalf of the firm of M/s. Dhanalal Shankarlal. This part of the evidence of Madan Lal was not challenged on behalf of the appellant inThen there is evidence to show that sixty bags of wheat were loaded in the truck at Kanera at the instance of the appellant. Mohammed, who was the coolie accompanying the truck, stated in his evidence that the appellant had fixed up in advance for loading the truck at Kanera and unloading it at Kesarpura. He said that the truck carrying the appellant, himself and Chhote Khan another coolie reached Kanera at about 5 a.m. or 5.30 a.m. : it was stopped in front of a house and the appellant summoned the man who was incharge of the house and then sixty bags of wheat were loaded in the truck at the instance of the appellant : thereafter the truck proceeded in its journey to Kesarpura and on the way stopped at Eklingpura checkpost for the purpose of checking : after the checking was completed, the truck left Eklingpura checkpost at about 6 a.m. and proceeded to Kesarpura where it unloaded sixth bags of wheat in a field near the school. He added inthat it was the appellant who got the truck unloaded near the Kesarpura school. The same story was repeated by Chhote Khan who also gave evidence on behalf of the prosecution. This evidence given by Mohammed and Chhote Khan was accepted by the High Court and we are unable to say that the High Court was wrong in doing so. There is no reason why Mohammed and Chhote Khan should have given false evidence against the appellant. The only criticism which was levelled on behalf of the appellant against the evidence of Mohammed and Chhote Khan was that both of them stated that while proceeding to Kesarpura from Eklingpura checkpost, they did not come across any checkpost of the State of Madhya Pradesh on the route and this, according to the appellant, showed that they were not telling the truth when they said that the truck proceeded to Kesarpura. We do not think any argument can be built on such a flimsy foundation. It is possible that both these witnesses being illiterate and uneducated coolies, might have forgotten that they passed through a checkpost of the State of Madhya Pradesh on way to Kesarpura or it is quite likely that the might have given this answer because they thought that the question which was being asked to them was in reference to a checkpost other than the one opposite Eklingpura checkpost. We cannot be persuaded to disbelieve the evidence of these two witnesses merely on the basis of this rather inconsequential infirmity. The evidence of these two witnesses clearly shows that the appellant was responsible for loading of sixty bags of wheat on the truck at Kanera, he was in the truck which carried the goods from Kanera to Kesarpura and it was he who unloaded the goods at Kesarpura.9. We have also the evidence of Nazeer Khan, who was the constableof Eklingpura checkpost on June 25, 1965. He stated in his evidence that the truck driven by Khaju Khan passed through Eklingpura checkpost on June 25, 1965 and at that time, when it was checked, the appellant gave to him the permit Ex.on which on endorsement was made by the appellant in his own hand and signature on its back was made by him, though he signed as Shankarlal. He also produced the register Ex.which contained entries signed by Khaju Khan and the appellant. An identification parade was held by the police after the arrest of the appellant and in this identification parade, Nazeer Khan correctly identified the appellant. This evidence also establishes that the appellant was in the truck transporting sixty bags of wheat when it was checked at Eklingpura checkpost.10. The aforesaid evidence is, in our opinion, sufficient to establish beyond reasonable doubt that the appellant transported sixty bags of wheat from Kanera to Kesarpura on June 25, 1965 claiming to do so on the basis of the permit Ex.The appellant, however, pleaded an alibi and contended that on that day he presided over a meeting of Jaura Gram Panchayat from 8 a.m. to 5 p.m. in his capacity as sarpanch of the panchayat. To establish this alibi the appellant led the evidence of three witnesses, namely, Badri Lal, Mohan Lal and Gopal Lal. The evidence of Badri Lal was totally useless as he did not say that the appellant was present at the meeting of Jaura Panchayat from 8 a.m. to 5 p.m. on June 25, 1965. He merely produced the mutation register showing entries in regard to 13 mutation cases decided at the meeting of the panchayat. He did not even know who was the patwari on that day. Mohan Lal deposed that he was the Secretary of Gram Panchayat, Jaura and produced the minute book of the meeting of the panchayat and stated that he was present at the meeting of the panchayat held on June 25, 1965, but inhe was unable even to give the names of the persons who were present at that meeting, nor could he remember when the meeting concerned on that day. The evidence of this witness also, therefore, does not help to establish the alibi of the appellant. Gopal Lal, who was the patwariof Jaura Circle at the relevant date, was a little more specific than the other two witnesses. He stated that he attended the meeting of Jaura Panchayat on that day and he reached the place of the meeting at 11 a.m. He added that when he reached there, he found that the appellant was present at the meeting and was presiding over the meeting. This evidence would seem to suggest that the appellant was present at the meeting of Jaura Panchayat at 11 a.m. on June 25, 1965, but we do not think it is possible to accept this evidence at its face value. Gopal Lal confessed inthat this meeting of the Jaura Panchayat held on June 25, 1965 was the only meeting which he attended and that he did not even visit Jaura before or after the date of the meeting. It is indeed strange that he should have been conveniently present only at this crucial meeting. He could not even say who were the other members present at he meeting apart from the appellant. He admitted that Shanker Lal and not the appellant was the sarpanch of Jaura Panchayat and ordinarily it is the sarpanch who decides the mutation cases. He could not explain where Shankar Lal was on that day or how the appellant happened to preside over the meeting of the panchayat or why the mutation cases were all placed before the panchayat for decision. It is interesting to noticeand this was admitted by Gopal Lalthat his circle was Jaura, but if this be so, it is difficult to understand his earlier statement that he did not go to Jaura before or after the date of this meeting. He also admitted that he did not remember any facts in regard to what happened on June 25, 1965 and that whatever evidence he had given was after perusing the register. It will, therefore, be seen that the evidence of Gopal Lal is thoroughly unconvincing and no reliance can be placed upon it. We cannot, in the circumstances, hold that plea of alibi established by the appellant. | 0 | 3,138 | 1,618 | ### Instruction:
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no reason why Mohammed and Chhote Khan should have given false evidence against the appellant. The only criticism which was levelled on behalf of the appellant against the evidence of Mohammed and Chhote Khan was that both of them stated that while proceeding to Kesarpura from Eklingpura checkpost, they did not come across any checkpost of the State of Madhya Pradesh on the route and this, according to the appellant, showed that they were not telling the truth when they said that the truck proceeded to Kesarpura. We do not think any argument can be built on such a flimsy foundation. It is possible that both these witnesses being illiterate and uneducated coolies, might have forgotten that they passed through a checkpost of the State of Madhya Pradesh on way to Kesarpura or it is quite likely that the might have given this answer because they thought that the question which was being asked to them was in reference to a checkpost other than the one opposite Eklingpura checkpost. We cannot be persuaded to disbelieve the evidence of these two witnesses merely on the basis of this rather inconsequential infirmity. The evidence of these two witnesses clearly shows that the appellant was responsible for loading of sixty bags of wheat on the truck at Kanera, he was in the truck which carried the goods from Kanera to Kesarpura and it was he who unloaded the goods at Kesarpura.9. We have also the evidence of Nazeer Khan, who was the constable in-charge of Eklingpura checkpost on June 25, 1965. He stated in his evidence that the truck driven by Khaju Khan passed through Eklingpura checkpost on June 25, 1965 and at that time, when it was checked, the appellant gave to him the permit Ex. P-2 on which on endorsement was made by the appellant in his own hand and signature on its back was made by him, though he signed as Shankarlal. He also produced the register Ex. P-1 which contained entries signed by Khaju Khan and the appellant. An identification parade was held by the police after the arrest of the appellant and in this identification parade, Nazeer Khan correctly identified the appellant. This evidence also establishes that the appellant was in the truck transporting sixty bags of wheat when it was checked at Eklingpura checkpost.10. The aforesaid evidence is, in our opinion, sufficient to establish beyond reasonable doubt that the appellant transported sixty bags of wheat from Kanera to Kesarpura on June 25, 1965 claiming to do so on the basis of the permit Ex. P-2. The appellant, however, pleaded an alibi and contended that on that day he presided over a meeting of Jaura Gram Panchayat from 8 a.m. to 5 p.m. in his capacity as sarpanch of the panchayat. To establish this alibi the appellant led the evidence of three witnesses, namely, Badri Lal, Mohan Lal and Gopal Lal. The evidence of Badri Lal was totally useless as he did not say that the appellant was present at the meeting of Jaura Panchayat from 8 a.m. to 5 p.m. on June 25, 1965. He merely produced the mutation register showing entries in regard to 13 mutation cases decided at the meeting of the panchayat. He did not even know who was the patwari on that day. Mohan Lal deposed that he was the Secretary of Gram Panchayat, Jaura and produced the minute book of the meeting of the panchayat and stated that he was present at the meeting of the panchayat held on June 25, 1965, but in cross-examination, he was unable even to give the names of the persons who were present at that meeting, nor could he remember when the meeting concerned on that day. The evidence of this witness also, therefore, does not help to establish the alibi of the appellant. Gopal Lal, who was the patwari in-charge of Jaura Circle at the relevant date, was a little more specific than the other two witnesses. He stated that he attended the meeting of Jaura Panchayat on that day and he reached the place of the meeting at 11 a.m. He added that when he reached there, he found that the appellant was present at the meeting and was presiding over the meeting. This evidence would seem to suggest that the appellant was present at the meeting of Jaura Panchayat at 11 a.m. on June 25, 1965, but we do not think it is possible to accept this evidence at its face value. Gopal Lal confessed in cross-examination that this meeting of the Jaura Panchayat held on June 25, 1965 was the only meeting which he attended and that he did not even visit Jaura before or after the date of the meeting. It is indeed strange that he should have been conveniently present only at this crucial meeting. He could not even say who were the other members present at he meeting apart from the appellant. He admitted that Shanker Lal and not the appellant was the sarpanch of Jaura Panchayat and ordinarily it is the sarpanch who decides the mutation cases. He could not explain where Shankar Lal was on that day or how the appellant happened to preside over the meeting of the panchayat or why the mutation cases were all placed before the panchayat for decision. It is interesting to notice - and this was admitted by Gopal Lal - that his circle was Jaura, but if this be so, it is difficult to understand his earlier statement that he did not go to Jaura before or after the date of this meeting. He also admitted that he did not remember any facts in regard to what happened on June 25, 1965 and that whatever evidence he had given was after perusing the register. It will, therefore, be seen that the evidence of Gopal Lal is thoroughly unconvincing and no reliance can be placed upon it. We cannot, in the circumstances, hold that plea of alibi established by the appellant.
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Court and we are unable to say that the High Court was wrong in doing so. There is no reason why Mohammed and Chhote Khan should have given false evidence against the appellant. The only criticism which was levelled on behalf of the appellant against the evidence of Mohammed and Chhote Khan was that both of them stated that while proceeding to Kesarpura from Eklingpura checkpost, they did not come across any checkpost of the State of Madhya Pradesh on the route and this, according to the appellant, showed that they were not telling the truth when they said that the truck proceeded to Kesarpura. We do not think any argument can be built on such a flimsy foundation. It is possible that both these witnesses being illiterate and uneducated coolies, might have forgotten that they passed through a checkpost of the State of Madhya Pradesh on way to Kesarpura or it is quite likely that the might have given this answer because they thought that the question which was being asked to them was in reference to a checkpost other than the one opposite Eklingpura checkpost. We cannot be persuaded to disbelieve the evidence of these two witnesses merely on the basis of this rather inconsequential infirmity. The evidence of these two witnesses clearly shows that the appellant was responsible for loading of sixty bags of wheat on the truck at Kanera, he was in the truck which carried the goods from Kanera to Kesarpura and it was he who unloaded the goods at Kesarpura.9. We have also the evidence of Nazeer Khan, who was the constableof Eklingpura checkpost on June 25, 1965. He stated in his evidence that the truck driven by Khaju Khan passed through Eklingpura checkpost on June 25, 1965 and at that time, when it was checked, the appellant gave to him the permit Ex.on which on endorsement was made by the appellant in his own hand and signature on its back was made by him, though he signed as Shankarlal. He also produced the register Ex.which contained entries signed by Khaju Khan and the appellant. An identification parade was held by the police after the arrest of the appellant and in this identification parade, Nazeer Khan correctly identified the appellant. This evidence also establishes that the appellant was in the truck transporting sixty bags of wheat when it was checked at Eklingpura checkpost.10. The aforesaid evidence is, in our opinion, sufficient to establish beyond reasonable doubt that the appellant transported sixty bags of wheat from Kanera to Kesarpura on June 25, 1965 claiming to do so on the basis of the permit Ex.The appellant, however, pleaded an alibi and contended that on that day he presided over a meeting of Jaura Gram Panchayat from 8 a.m. to 5 p.m. in his capacity as sarpanch of the panchayat. To establish this alibi the appellant led the evidence of three witnesses, namely, Badri Lal, Mohan Lal and Gopal Lal. The evidence of Badri Lal was totally useless as he did not say that the appellant was present at the meeting of Jaura Panchayat from 8 a.m. to 5 p.m. on June 25, 1965. He merely produced the mutation register showing entries in regard to 13 mutation cases decided at the meeting of the panchayat. He did not even know who was the patwari on that day. Mohan Lal deposed that he was the Secretary of Gram Panchayat, Jaura and produced the minute book of the meeting of the panchayat and stated that he was present at the meeting of the panchayat held on June 25, 1965, but inhe was unable even to give the names of the persons who were present at that meeting, nor could he remember when the meeting concerned on that day. The evidence of this witness also, therefore, does not help to establish the alibi of the appellant. Gopal Lal, who was the patwariof Jaura Circle at the relevant date, was a little more specific than the other two witnesses. He stated that he attended the meeting of Jaura Panchayat on that day and he reached the place of the meeting at 11 a.m. He added that when he reached there, he found that the appellant was present at the meeting and was presiding over the meeting. This evidence would seem to suggest that the appellant was present at the meeting of Jaura Panchayat at 11 a.m. on June 25, 1965, but we do not think it is possible to accept this evidence at its face value. Gopal Lal confessed inthat this meeting of the Jaura Panchayat held on June 25, 1965 was the only meeting which he attended and that he did not even visit Jaura before or after the date of the meeting. It is indeed strange that he should have been conveniently present only at this crucial meeting. He could not even say who were the other members present at he meeting apart from the appellant. He admitted that Shanker Lal and not the appellant was the sarpanch of Jaura Panchayat and ordinarily it is the sarpanch who decides the mutation cases. He could not explain where Shankar Lal was on that day or how the appellant happened to preside over the meeting of the panchayat or why the mutation cases were all placed before the panchayat for decision. It is interesting to noticeand this was admitted by Gopal Lalthat his circle was Jaura, but if this be so, it is difficult to understand his earlier statement that he did not go to Jaura before or after the date of this meeting. He also admitted that he did not remember any facts in regard to what happened on June 25, 1965 and that whatever evidence he had given was after perusing the register. It will, therefore, be seen that the evidence of Gopal Lal is thoroughly unconvincing and no reliance can be placed upon it. We cannot, in the circumstances, hold that plea of alibi established by the appellant.
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Rustees Of The Port Of Madras Vs. Engineering Constructions Corporation Limited | this period was mentioned during the discussions. The Boards case which we find set out in some of their letters is that the period of six months was only an approximate time within which they expected the plant and machinery might be available. But the Board would not and did not undertake definitely to supply the plant and machinery not later than six months from 6-10-1958, the date of the order to commence work. There is no oral evidence relating to this matter and there is no sufficient material in the correspondence to warrant the conclusion that there was a term of the contract which bound the Port Trust to deliver to the contractors the plant and machinery within six months. Even at the time when the two alternative proposals were placed before the contractors, it was impressed on them that the proposals for the Board itself to import the plant and machinery would involve delay. Obviously, it was not for the Board to be certain of the extent of the delay. The Board might have though that it would not take longer than six months for the arrival of the equipment. I am unable to find any default or remissness on the part of the Board in taking steps to get the equipment. It was as much to their interest as to the contractors that the plant should be available as early as possible. Otherwise, the completion of the work would be delayed. There is no suggestion of any mala fide act or negligence on the part of the Board in the procurement of the equipment. It should also be mentioned that the Contractors themselves took some time before they could give detailed specifications. Taking all the circumstances into consideration. I hold that there has been no breach of any term of the contract committed by the Board because of the late arrival of the plant and machinery." 23. The finding of the learned umpire is thus based upon the material placed before him by both the parties and was a pure finding of fact. Now, the Division Bench does not say that the correspondence that passed between the parties or that the materials placed before the arbitrator and referred to in the award establishes that the Board undertook a firm commitment to supply the machinery within six months from the date of acceptance of the tender (October 6, 1958) - assuming that it could say so. (We are, of course, of the firm opinion that it was not open to the Division Bench to re-appraise the evidence / material before the learned umpire and come to a different finding of fact.) What the Division Bench says is that even though there was no such firm commitment, "the Board was under a bounden duty to have supplied the machinery within a reasonable time" applying the principle of Section 46 of the Contract Act. The Bench finds that the delay that has occurred in supplying the machinery is unreasonable and on that basis holds that the contractor is entitled to compensation. With great respect, we are unable to agree with this approach. Apart from the fact that this theory of duty to supply within a reasonable time was not put forward before the learned umpire, it is neither referred to by the learned umpire, nor does it constitute the basis of his award - the finding recorded by the learned umpire (viz., that the period of six months was only a rough estimate, an expectation, within which the Board thought it could import the machinery) is inconsistent with the theory of obligation to import within a reasonable time. The learned umpire has also found that the contractors themselves took some time before they could give detailed specifications of the machinery and parts required for carrying out the work. The Bench did not also find - it was not even suggested by anyone - that the Board was guilty of any deliberate delay or of any negligence or that it was remiss in taking steps required for importing and/or supplying the machinery. The matter did not lay in its hands. In such a situation, there was no room for importing the theory of reasonable time and for punishing the Board for something of which it was not guilty. Secondly, the explanation to Section 46 makes it abundantly clear that "the question what is a reasonable time is, in each particular case, a question of fact." The question whether the machinery was imported and supplied to the contractor within a reasonable time or not was thus a question of fact and not a question of law. No such contention was raised before the learned umpire nor did he record a finding on the said aspect. It was not open to the Division Bench to record the said finding of fact, for the first time, at the stage of letters patent appeal and hold on that basis that the Board is guilty of not performing its obligation within a reasonable time. In short, this is not a case where the Division Bench has interfered on the ground that the award suffers from an error of law apparent on the face of award. This is a case where a new ground - and that too factual in nature - was made out for the first time at the Letters Patent appeal stage for setting aside the award. Indeed, a reading of the judgment of the Division Bench shows that the Bench approached the matter as if it was sitting in first appeal over the award. The judgment does not even indicate on which recognised ground is it setting aside the award. It does not say either that the award is vitiated by an error of law apparent on the face of it nor does it say that the learned umpire was guilty of any misconduct in conducting the proceedings or otherwise. We are of the firm opinion that this could not have been done. | 1[ds]22. The proposition that emerges from the above decisions in this : in the case of a reasoned award, the Court can interfere if the award is based upon a proposition of law which is unsound in law. The erroneous proposition of law must be established to have vitiated the decision. The error of law must appear from the award itself or from any document or note incorporated in it or appended to it. It is not permissible to travel beyond and consider material not incorporated in or appended to the award. Now let us examine the award concerned herein from the above point of view and see whether it suffers from any error of law apparent on the face of the award. We have gone through the award of the learned umpire, a man of great learning and eminence, Dr. P. V. Rajamannar - very carefully. All that the learned umpire has done is to refer extensively to the correspondence that passed between the parties and the other material placed before him and infer therefrom that the appellant-Board did never make a firm commitment nor did it ever undertake to import and supply the machinery within a particular period much less within a period of six months. The learned umpire remarkedis no mention of this period of six months in the relevant minutes of the meetings of the Tender Committee; but it is fairly clear that this period was mentioned during the discussions. The Boards case which we find set out in some of their letters is that the period of six months was only an approximate time within which they expected the plant and machinery might be available. But the Board would not and did not undertake definitely to supply the plant and machinery not later than six months from 6-10-1958, the date of the order to commence work. There is no oral evidence relating to this matter and there is no sufficient material in the correspondence to warrant the conclusion that there was a term of the contract which bound the Port Trust to deliver to the contractors the plant and machinery within six months. Even at the time when the two alternative proposals were placed before the contractors, it was impressed on them that the proposals for the Board itself to import the plant and machinery would involve delay. Obviously, it was not for the Board to be certain of the extent of the delay. The Board might have though that it would not take longer than six months for the arrival of the equipment. I am unable to find any default or remissness on the part of the Board in taking steps to get the equipment. It was as much to their interest as to the contractors that the plant should be available as early as possible. Otherwise, the completion of the work would be delayed. There is no suggestion of any mala fide act or negligence on the part of the Board in the procurement of the equipment. It should also be mentioned that the Contractors themselves took some time before they could give detailed specifications. Taking all the circumstances into consideration. I hold that there has been no breach of any term of the contract committed by the Board because of the late arrival of the plant and machinery.The finding of the learned umpire is thus based upon the material placed before him by both the parties and was a pure finding of fact. Now, the Division Bench does not say that the correspondence that passed between the parties or that the materials placed before the arbitrator and referred to in the award establishes that the Board undertook a firm commitment to supply the machinery within six months from the date of acceptance of the tender (October 6, 1958) - assuming that it could say so. (We are, of course, of the firm opinion that it was not open to the Division Bench to re-appraise the evidence / material before the learned umpire and come to a different finding of fact.) What the Division Bench says is that even though there was no such firm commitment, "the Board was under a bounden duty to have supplied the machinery within a reasonable time" applying the principle of Section 46 of the Contract Act. The Bench finds that the delay that has occurred in supplying the machinery is unreasonable and on that basis holds that the contractor is entitled to compensation. With great respect, we are unable to agree with this approach. Apart from the fact that this theory of duty to supply within a reasonable time was not put forward before the learned umpire, it is neither referred to by the learned umpire, nor does it constitute the basis of his award - the finding recorded by the learned umpire (viz., that the period of six months was only a rough estimate, an expectation, within which the Board thought it could import the machinery) is inconsistent with the theory of obligation to import within a reasonable time. The learned umpire has also found that the contractors themselves took some time before they could give detailed specifications of the machinery and parts required for carrying out the work. The Bench did not also find - it was not even suggested by anyone - that the Board was guilty of any deliberate delay or of any negligence or that it was remiss in taking steps required for importing and/or supplying the machinery. The matter did not lay in its hands. In such a situation, there was no room for importing the theory of reasonable time and for punishing the Board for something of which it was not guilty. Secondly, the explanation to Section 46 makes it abundantly clear that "the question what is a reasonable time is, in each particular case, a question of fact." The question whether the machinery was imported and supplied to the contractor within a reasonable time or not was thus a question of fact and not a question of law. No such contention was raised before the learned umpire nor did he record a finding on the said aspect. It was not open to the Division Bench to record the said finding of fact, for the first time, at the stage of letters patent appeal and hold on that basis that the Board is guilty of not performing its obligation within a reasonable time. In short, this is not a case where the Division Bench has interfered on the ground that the award suffers from an error of law apparent on the face of award. This is a case where a new ground - and that too factual in nature - was made out for the first time at the Letters Patent appeal stage for setting aside the award. Indeed, a reading of the judgment of the Division Bench shows that the Bench approached the matter as if it was sitting in first appeal over the award. The judgment does not even indicate on which recognised ground is it setting aside the award. It does not say either that the award is vitiated by an error of law apparent on the face of it nor does it say that the learned umpire was guilty of any misconduct in conducting the proceedings or otherwise. We are of the firm opinion that this could not have been done. | 1 | 5,928 | 1,318 | ### 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:
this period was mentioned during the discussions. The Boards case which we find set out in some of their letters is that the period of six months was only an approximate time within which they expected the plant and machinery might be available. But the Board would not and did not undertake definitely to supply the plant and machinery not later than six months from 6-10-1958, the date of the order to commence work. There is no oral evidence relating to this matter and there is no sufficient material in the correspondence to warrant the conclusion that there was a term of the contract which bound the Port Trust to deliver to the contractors the plant and machinery within six months. Even at the time when the two alternative proposals were placed before the contractors, it was impressed on them that the proposals for the Board itself to import the plant and machinery would involve delay. Obviously, it was not for the Board to be certain of the extent of the delay. The Board might have though that it would not take longer than six months for the arrival of the equipment. I am unable to find any default or remissness on the part of the Board in taking steps to get the equipment. It was as much to their interest as to the contractors that the plant should be available as early as possible. Otherwise, the completion of the work would be delayed. There is no suggestion of any mala fide act or negligence on the part of the Board in the procurement of the equipment. It should also be mentioned that the Contractors themselves took some time before they could give detailed specifications. Taking all the circumstances into consideration. I hold that there has been no breach of any term of the contract committed by the Board because of the late arrival of the plant and machinery." 23. The finding of the learned umpire is thus based upon the material placed before him by both the parties and was a pure finding of fact. Now, the Division Bench does not say that the correspondence that passed between the parties or that the materials placed before the arbitrator and referred to in the award establishes that the Board undertook a firm commitment to supply the machinery within six months from the date of acceptance of the tender (October 6, 1958) - assuming that it could say so. (We are, of course, of the firm opinion that it was not open to the Division Bench to re-appraise the evidence / material before the learned umpire and come to a different finding of fact.) What the Division Bench says is that even though there was no such firm commitment, "the Board was under a bounden duty to have supplied the machinery within a reasonable time" applying the principle of Section 46 of the Contract Act. The Bench finds that the delay that has occurred in supplying the machinery is unreasonable and on that basis holds that the contractor is entitled to compensation. With great respect, we are unable to agree with this approach. Apart from the fact that this theory of duty to supply within a reasonable time was not put forward before the learned umpire, it is neither referred to by the learned umpire, nor does it constitute the basis of his award - the finding recorded by the learned umpire (viz., that the period of six months was only a rough estimate, an expectation, within which the Board thought it could import the machinery) is inconsistent with the theory of obligation to import within a reasonable time. The learned umpire has also found that the contractors themselves took some time before they could give detailed specifications of the machinery and parts required for carrying out the work. The Bench did not also find - it was not even suggested by anyone - that the Board was guilty of any deliberate delay or of any negligence or that it was remiss in taking steps required for importing and/or supplying the machinery. The matter did not lay in its hands. In such a situation, there was no room for importing the theory of reasonable time and for punishing the Board for something of which it was not guilty. Secondly, the explanation to Section 46 makes it abundantly clear that "the question what is a reasonable time is, in each particular case, a question of fact." The question whether the machinery was imported and supplied to the contractor within a reasonable time or not was thus a question of fact and not a question of law. No such contention was raised before the learned umpire nor did he record a finding on the said aspect. It was not open to the Division Bench to record the said finding of fact, for the first time, at the stage of letters patent appeal and hold on that basis that the Board is guilty of not performing its obligation within a reasonable time. In short, this is not a case where the Division Bench has interfered on the ground that the award suffers from an error of law apparent on the face of award. This is a case where a new ground - and that too factual in nature - was made out for the first time at the Letters Patent appeal stage for setting aside the award. Indeed, a reading of the judgment of the Division Bench shows that the Bench approached the matter as if it was sitting in first appeal over the award. The judgment does not even indicate on which recognised ground is it setting aside the award. It does not say either that the award is vitiated by an error of law apparent on the face of it nor does it say that the learned umpire was guilty of any misconduct in conducting the proceedings or otherwise. We are of the firm opinion that this could not have been done.
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clear that this period was mentioned during the discussions. The Boards case which we find set out in some of their letters is that the period of six months was only an approximate time within which they expected the plant and machinery might be available. But the Board would not and did not undertake definitely to supply the plant and machinery not later than six months from 6-10-1958, the date of the order to commence work. There is no oral evidence relating to this matter and there is no sufficient material in the correspondence to warrant the conclusion that there was a term of the contract which bound the Port Trust to deliver to the contractors the plant and machinery within six months. Even at the time when the two alternative proposals were placed before the contractors, it was impressed on them that the proposals for the Board itself to import the plant and machinery would involve delay. Obviously, it was not for the Board to be certain of the extent of the delay. The Board might have though that it would not take longer than six months for the arrival of the equipment. I am unable to find any default or remissness on the part of the Board in taking steps to get the equipment. It was as much to their interest as to the contractors that the plant should be available as early as possible. Otherwise, the completion of the work would be delayed. There is no suggestion of any mala fide act or negligence on the part of the Board in the procurement of the equipment. It should also be mentioned that the Contractors themselves took some time before they could give detailed specifications. Taking all the circumstances into consideration. I hold that there has been no breach of any term of the contract committed by the Board because of the late arrival of the plant and machinery.The finding of the learned umpire is thus based upon the material placed before him by both the parties and was a pure finding of fact. Now, the Division Bench does not say that the correspondence that passed between the parties or that the materials placed before the arbitrator and referred to in the award establishes that the Board undertook a firm commitment to supply the machinery within six months from the date of acceptance of the tender (October 6, 1958) - assuming that it could say so. (We are, of course, of the firm opinion that it was not open to the Division Bench to re-appraise the evidence / material before the learned umpire and come to a different finding of fact.) What the Division Bench says is that even though there was no such firm commitment, "the Board was under a bounden duty to have supplied the machinery within a reasonable time" applying the principle of Section 46 of the Contract Act. The Bench finds that the delay that has occurred in supplying the machinery is unreasonable and on that basis holds that the contractor is entitled to compensation. With great respect, we are unable to agree with this approach. Apart from the fact that this theory of duty to supply within a reasonable time was not put forward before the learned umpire, it is neither referred to by the learned umpire, nor does it constitute the basis of his award - the finding recorded by the learned umpire (viz., that the period of six months was only a rough estimate, an expectation, within which the Board thought it could import the machinery) is inconsistent with the theory of obligation to import within a reasonable time. The learned umpire has also found that the contractors themselves took some time before they could give detailed specifications of the machinery and parts required for carrying out the work. The Bench did not also find - it was not even suggested by anyone - that the Board was guilty of any deliberate delay or of any negligence or that it was remiss in taking steps required for importing and/or supplying the machinery. The matter did not lay in its hands. In such a situation, there was no room for importing the theory of reasonable time and for punishing the Board for something of which it was not guilty. Secondly, the explanation to Section 46 makes it abundantly clear that "the question what is a reasonable time is, in each particular case, a question of fact." The question whether the machinery was imported and supplied to the contractor within a reasonable time or not was thus a question of fact and not a question of law. No such contention was raised before the learned umpire nor did he record a finding on the said aspect. It was not open to the Division Bench to record the said finding of fact, for the first time, at the stage of letters patent appeal and hold on that basis that the Board is guilty of not performing its obligation within a reasonable time. In short, this is not a case where the Division Bench has interfered on the ground that the award suffers from an error of law apparent on the face of award. This is a case where a new ground - and that too factual in nature - was made out for the first time at the Letters Patent appeal stage for setting aside the award. Indeed, a reading of the judgment of the Division Bench shows that the Bench approached the matter as if it was sitting in first appeal over the award. The judgment does not even indicate on which recognised ground is it setting aside the award. It does not say either that the award is vitiated by an error of law apparent on the face of it nor does it say that the learned umpire was guilty of any misconduct in conducting the proceedings or otherwise. We are of the firm opinion that this could not have been done.
|
Hindustan Petroleum Corp Ltd Vs. M.I Mallick Andors | Under the West Bengal Kerosene Control Order of 1968, there are specific provisions which govern the purchase and sale of kerosene. The Order provides for the grant of various kinds of licences. Among them, paragraph 5 provides for the grant of a licence to an agent; and paragraph 6 provides for the grant of a licence to a dealer. In paragraph 3 an "agent" is defined as follows: "3(a). `agent means a person who has been appointed as an agent of an Oil Distributing Company by such company and has been granted a licence under paragraph 5 of this Order." While a "dealer" is defined as follows : "3(c). `dealer means a person who has been granted a licence under paragraph 6 of this Order authorising him to carry on trade in Kerosene oil;" An "oil distributing company" is defined in paragraph 3(h) to mean "a company specified in Schedule II of this Order." The appellant is one of the oil distributing companies so included in Schedule II. Under paragraph 4, there is a ban on trading in kerosene without a licence. It provides that no person other than an oil distributing company shall carry on trade in kerosene unless he is in possession of a valid licence issued under this order. Paragraph 5 provides for the grant of a licence to an agent. The Director of Consumer Goods is authorised to grant a licence to any agent in West Bengal authorising him to carry on trading in kerosene as such agent. Under sub-paragraph (2) of paragraph 5 a licence granted under sub-paragraph (1) shall be in Form A and shall be subject to such conditions as are specified therein. Sub-paragraph (3) of paragraph 5 is as follows ; "5(3). No agent shall, supply or transfer kerosene to any person other that a dealer duly licensed under paragraph 6 of this Order, or a holder of a permit or delivery order issued under paragraph II of this Order." Therefore, an agent who is appointed as an agent by an oil distributing company requires a licence in Form A. Condition 1 of the licence in Form A, prescribes that a licensee may sell kerosene to any licensed dealer or hawker or to the holder of any permit or delivery order issued by the Director [vide paragraph 5(3)]. Under Condition 2, the licensee shall submit to the Director or the District Magistrate, as the case may be, a monthly statement showing the amount of kerosene released monthly by the Oil Distributing Companies for sale in each of the areas mentioned on this licence, and shall be bound to report at once to the office any change in these quantities which he may have to make by order of the Oil Distributing Companies. An agent thus gets his supply of kerosene from the Oil Distributing Company and he, in turn, can supply kerosene only to a dealer, a hawker or a holder of a permit or delivery order. 6. Paragraph 6 deals with the grant of a licence to a dealer. This licence has to be in Form B. Under the terms and conditions of a licence granted to a dealer in Form B, Condition 1 states that a licensee may purchase kerosene from any agent, or subject to the approval of the licensing authority, from any other dealer holding a licence under the provisions of this Order. A dealer, therefore, gets his supply of kerosene either from an agent or from another licensed dealer. Under Condition 2 he, in turn, is entitled to sell kerosene to a consumer or, subject to the approval of the licensing authority, to another dealer duly licensed and shall not sell it to any agent. The two licences, that is, the licence to an agent and the licence to a dealer, are different in character. An agent has to be appointed by the Oil Distributing Company as its agent. Thereafter the agent is required to obtain a licence under paragraph 5. A dealer, however, does not have any connection with the Oil Distributing Company. He can get a dealers licence under paragraph 6 which entitles him to purchase kerosene from and agent or another dealer as specified in paragraph 6; and he, in turn, is entitled to sell kerosene to a consumer or to another dealer subject to the conditions specified in the said paragraph and the terms and conditions of his licence. 7. In the present case, respondent No. 5 is an agent of the appellant Oil Distributing Company and he holds an agents licence in Form A. This licence, inter alia, is for the area of Bagnan. If respondent No. 1 wants this licence to be transferred to his name, he must first of all be appointed as an agent by the appellant company. Only thereafter will he be entitled to obtain an agents licence. The Director of Consumer Goods had, therefore, rightly rejected respondent No. 1s application by his order dated 12.6.1996 since respondent No. 1 had not been appointed its agent by the appellant company for kerosene dealership in the area of Begnan. The High Court while granting the interim order of 10.10.1996 has wrongly come to a conclusion that the grant of a licence to an agent does not depend upon the party being appointed an agent, and that the Director of Consumer Goods can rant a licence under paragraph 5 in From A to a person before he is appointed as an agent by an Oil Distributing Company. Possibly there was a misreading of paragraphs 5 and 6. Therefore, the order dated 24.1.1997 of the Director of Consumer Goods to give a licence to respondent No.1 as an agent without the respondent No. 1 having been appointed as an agent by the appellant, as also interim direction of the High Court of 16.5.1997 directing the appellant to supply kerosene to respondent No. 1 for distribution in Bagnan, are based on a misconception of the West Bengal Kerosene Control Order of 1968. | 1[ds]Therefore, an agent who is appointed as an agent by an oil distributing company requires a licence in Form A. Condition 1 of the licence in Form A, prescribes that a licensee may sell kerosene to any licensed dealer or hawker or to the holder of any permit or delivery order issued by the Director [vide paragraph 5(3)]. Under Condition 2, the licensee shall submit to the Director or the District Magistrate, as the case may be, a monthly statement showing the amount of kerosene released monthly by the Oil Distributing Companies for sale in each of the areas mentioned on this licence, and shall be bound to report at once to the office any change in these quantities which he may have to make by order of the Oil Distributing Companies. An agent thus gets his supply of kerosene from the Oil Distributing Company and he, in turn, can supply kerosene only to a dealer, a hawker or a holder of a permit or delivery order.Paragraph 6 deals with the grant of a licence to a dealer. This licence has to be in Form B. Under the terms and conditions of a licence granted to a dealer in Form B, Condition 1 states that a licensee may purchase kerosene from any agent, or subject to the approval of the licensing authority, from any other dealer holding a licence under the provisions of this Order. A dealer, therefore, gets his supply of kerosene either from an agent or from another licensed dealer. Under Condition 2 he, in turn, is entitled to sell kerosene to a consumer or, subject to the approval of the licensing authority, to another dealer duly licensed and shall not sell it to any agent. The two licences, that is, the licence to an agent and the licence to a dealer, are different in character. An agent has to be appointed by the Oil Distributing Company as its agent. Thereafter the agent is required to obtain a licence under paragraph 5. A dealer, however, does not have any connection with the Oil Distributing Company. He can get a dealers licence under paragraph 6 which entitles him to purchase kerosene from and agent or another dealer as specified in paragraph 6; and he, in turn, is entitled to sell kerosene to a consumer or to another dealer subject to the conditions specified in the said paragraph and the terms and conditions of his licence.In the present case, respondent No. 5 is an agent of the appellant Oil Distributing Company and he holds an agents licence in Form A. This licence, inter alia, is for the area of Bagnan. If respondent No. 1 wants this licence to be transferred to his name, he must first of all be appointed as an agent by the appellant company. Only thereafter will he be entitled to obtain an agents licence. The Director of Consumer Goods had, therefore, rightly rejected respondent No. 1s application by his order dated 12.6.1996 since respondent No. 1 had not been appointed its agent by the appellant company for kerosene dealership in the area of Begnan. The High Court while granting the interim order of 10.10.1996 has wrongly come to a conclusion that the grant of a licence to an agent does not depend upon the party being appointed an agent, and that the Director of Consumer Goods can rant a licence under paragraph 5 in From A to a person before he is appointed as an agent by an Oil Distributing Company. Possibly there was a misreading of paragraphs 5 and 6. Therefore, the order dated 24.1.1997 of the Director of Consumer Goods to give a licence to respondent No.1 as an agent without the respondent No. 1 having been appointed as an agent by the appellant, as also interim direction of the High Court of 16.5.1997 directing the appellant to supply kerosene to respondent No. 1 for distribution in Bagnan, are based on a misconception of the West Bengal Kerosene Control Order of 1968. | 1 | 2,400 | 739 | ### 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:
Under the West Bengal Kerosene Control Order of 1968, there are specific provisions which govern the purchase and sale of kerosene. The Order provides for the grant of various kinds of licences. Among them, paragraph 5 provides for the grant of a licence to an agent; and paragraph 6 provides for the grant of a licence to a dealer. In paragraph 3 an "agent" is defined as follows: "3(a). `agent means a person who has been appointed as an agent of an Oil Distributing Company by such company and has been granted a licence under paragraph 5 of this Order." While a "dealer" is defined as follows : "3(c). `dealer means a person who has been granted a licence under paragraph 6 of this Order authorising him to carry on trade in Kerosene oil;" An "oil distributing company" is defined in paragraph 3(h) to mean "a company specified in Schedule II of this Order." The appellant is one of the oil distributing companies so included in Schedule II. Under paragraph 4, there is a ban on trading in kerosene without a licence. It provides that no person other than an oil distributing company shall carry on trade in kerosene unless he is in possession of a valid licence issued under this order. Paragraph 5 provides for the grant of a licence to an agent. The Director of Consumer Goods is authorised to grant a licence to any agent in West Bengal authorising him to carry on trading in kerosene as such agent. Under sub-paragraph (2) of paragraph 5 a licence granted under sub-paragraph (1) shall be in Form A and shall be subject to such conditions as are specified therein. Sub-paragraph (3) of paragraph 5 is as follows ; "5(3). No agent shall, supply or transfer kerosene to any person other that a dealer duly licensed under paragraph 6 of this Order, or a holder of a permit or delivery order issued under paragraph II of this Order." Therefore, an agent who is appointed as an agent by an oil distributing company requires a licence in Form A. Condition 1 of the licence in Form A, prescribes that a licensee may sell kerosene to any licensed dealer or hawker or to the holder of any permit or delivery order issued by the Director [vide paragraph 5(3)]. Under Condition 2, the licensee shall submit to the Director or the District Magistrate, as the case may be, a monthly statement showing the amount of kerosene released monthly by the Oil Distributing Companies for sale in each of the areas mentioned on this licence, and shall be bound to report at once to the office any change in these quantities which he may have to make by order of the Oil Distributing Companies. An agent thus gets his supply of kerosene from the Oil Distributing Company and he, in turn, can supply kerosene only to a dealer, a hawker or a holder of a permit or delivery order. 6. Paragraph 6 deals with the grant of a licence to a dealer. This licence has to be in Form B. Under the terms and conditions of a licence granted to a dealer in Form B, Condition 1 states that a licensee may purchase kerosene from any agent, or subject to the approval of the licensing authority, from any other dealer holding a licence under the provisions of this Order. A dealer, therefore, gets his supply of kerosene either from an agent or from another licensed dealer. Under Condition 2 he, in turn, is entitled to sell kerosene to a consumer or, subject to the approval of the licensing authority, to another dealer duly licensed and shall not sell it to any agent. The two licences, that is, the licence to an agent and the licence to a dealer, are different in character. An agent has to be appointed by the Oil Distributing Company as its agent. Thereafter the agent is required to obtain a licence under paragraph 5. A dealer, however, does not have any connection with the Oil Distributing Company. He can get a dealers licence under paragraph 6 which entitles him to purchase kerosene from and agent or another dealer as specified in paragraph 6; and he, in turn, is entitled to sell kerosene to a consumer or to another dealer subject to the conditions specified in the said paragraph and the terms and conditions of his licence. 7. In the present case, respondent No. 5 is an agent of the appellant Oil Distributing Company and he holds an agents licence in Form A. This licence, inter alia, is for the area of Bagnan. If respondent No. 1 wants this licence to be transferred to his name, he must first of all be appointed as an agent by the appellant company. Only thereafter will he be entitled to obtain an agents licence. The Director of Consumer Goods had, therefore, rightly rejected respondent No. 1s application by his order dated 12.6.1996 since respondent No. 1 had not been appointed its agent by the appellant company for kerosene dealership in the area of Begnan. The High Court while granting the interim order of 10.10.1996 has wrongly come to a conclusion that the grant of a licence to an agent does not depend upon the party being appointed an agent, and that the Director of Consumer Goods can rant a licence under paragraph 5 in From A to a person before he is appointed as an agent by an Oil Distributing Company. Possibly there was a misreading of paragraphs 5 and 6. Therefore, the order dated 24.1.1997 of the Director of Consumer Goods to give a licence to respondent No.1 as an agent without the respondent No. 1 having been appointed as an agent by the appellant, as also interim direction of the High Court of 16.5.1997 directing the appellant to supply kerosene to respondent No. 1 for distribution in Bagnan, are based on a misconception of the West Bengal Kerosene Control Order of 1968.
### Response:
1
### Explanation:
Therefore, an agent who is appointed as an agent by an oil distributing company requires a licence in Form A. Condition 1 of the licence in Form A, prescribes that a licensee may sell kerosene to any licensed dealer or hawker or to the holder of any permit or delivery order issued by the Director [vide paragraph 5(3)]. Under Condition 2, the licensee shall submit to the Director or the District Magistrate, as the case may be, a monthly statement showing the amount of kerosene released monthly by the Oil Distributing Companies for sale in each of the areas mentioned on this licence, and shall be bound to report at once to the office any change in these quantities which he may have to make by order of the Oil Distributing Companies. An agent thus gets his supply of kerosene from the Oil Distributing Company and he, in turn, can supply kerosene only to a dealer, a hawker or a holder of a permit or delivery order.Paragraph 6 deals with the grant of a licence to a dealer. This licence has to be in Form B. Under the terms and conditions of a licence granted to a dealer in Form B, Condition 1 states that a licensee may purchase kerosene from any agent, or subject to the approval of the licensing authority, from any other dealer holding a licence under the provisions of this Order. A dealer, therefore, gets his supply of kerosene either from an agent or from another licensed dealer. Under Condition 2 he, in turn, is entitled to sell kerosene to a consumer or, subject to the approval of the licensing authority, to another dealer duly licensed and shall not sell it to any agent. The two licences, that is, the licence to an agent and the licence to a dealer, are different in character. An agent has to be appointed by the Oil Distributing Company as its agent. Thereafter the agent is required to obtain a licence under paragraph 5. A dealer, however, does not have any connection with the Oil Distributing Company. He can get a dealers licence under paragraph 6 which entitles him to purchase kerosene from and agent or another dealer as specified in paragraph 6; and he, in turn, is entitled to sell kerosene to a consumer or to another dealer subject to the conditions specified in the said paragraph and the terms and conditions of his licence.In the present case, respondent No. 5 is an agent of the appellant Oil Distributing Company and he holds an agents licence in Form A. This licence, inter alia, is for the area of Bagnan. If respondent No. 1 wants this licence to be transferred to his name, he must first of all be appointed as an agent by the appellant company. Only thereafter will he be entitled to obtain an agents licence. The Director of Consumer Goods had, therefore, rightly rejected respondent No. 1s application by his order dated 12.6.1996 since respondent No. 1 had not been appointed its agent by the appellant company for kerosene dealership in the area of Begnan. The High Court while granting the interim order of 10.10.1996 has wrongly come to a conclusion that the grant of a licence to an agent does not depend upon the party being appointed an agent, and that the Director of Consumer Goods can rant a licence under paragraph 5 in From A to a person before he is appointed as an agent by an Oil Distributing Company. Possibly there was a misreading of paragraphs 5 and 6. Therefore, the order dated 24.1.1997 of the Director of Consumer Goods to give a licence to respondent No.1 as an agent without the respondent No. 1 having been appointed as an agent by the appellant, as also interim direction of the High Court of 16.5.1997 directing the appellant to supply kerosene to respondent No. 1 for distribution in Bagnan, are based on a misconception of the West Bengal Kerosene Control Order of 1968.
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Third Income-Tax Officer, Mangalore Vs. M. Damodar Bhat | pointed out that Section 6 of the General Clauses Act will not apply in respect of those matters where Parliament had clearly expressed its intention to the contrary by making detailed provisions for similar matters mentioned in that section.For these reasons we are of opinion that the Income-tax Officer had authority to issue the notices under Section 156 and Section 226 (3) of the new Act with respect to the liability of the respondent under the old Act. The High Court was therefore in error in holding that the impugned notice was inoperative in regard to the amount of Rs. 485.55 for the assessment year 1961-62.5. As regards items 4 and 5 for the assessment years 1962-63 and 1963-64 the argument of the respondent is that the impugned notice issued on April 23, 1965 was not legally valid as notices of demand were served on the respondent for payment of these sums and time given in this notice was due to expire on May 21, 1965. The impugned notice was issued on April 23, 1965, nearly a month before that date. As the tax and penalty covered by the notice were not due till May 21, 1965 it was said that notice of attachment under Sec. 226 (3) of the new Act could not legally be issued on April 23, 1965. In our opinion, there is no warrant for this argument. As we have already observed, there is nothing in the language of Sec. 226 (3) of the new Act to suggest that the assessee must be in default before a notice under that sub-section could be issued. It is true that Section 220 of the new Act deals with the question as to when the tax is payable and when the assessee is deemed to be in default but so far as Section 226 (3) of the new Act is concerned, the question of any default of the assessee is irrelevant. It was argued by Mr. Srinivasan on behalf of the respondent that the amount of tax must be "due to be paid" by the assessee before a notice can be issued under Sec. 226 (3) of the new Act. It is not disputed in this case that the notices of demand under Section 156 of the new Act were served on the respondent before the issue of the notice under Section 226 (3) of the new Act. As pointed out by this Court in Kesoram Industries and Cotton Mills Ltd. v. Commissioner of Wealthtax (Central), Calcutta, 1966-59 ITR 767 = (AIR 1966 SC1370), the liability to pay income-tax is a present liability though the tax becomes payable after it is quantified in accordance with ascertainable data and therefore the amount of the provision (sic) for payment of income-tax and super-tax in respect of the year of account ending March 31, 1957 in that case, was a "debt owed" within the meaning of section 2 (m) of the Wealth-tax Act and was as such deductible in computing the net wealth. It was further observed in that case that there was a perfected debt at any rate on the last date of the accounting year and not a contingent liability. In the present case, there is the additional circumstance that the assessments of tax and penalty have been made against the respondent and demand notices have also been issued under Section 156 of the new Act. It is therefore not possible to argue that the amount of tax and penalty for the assessment years 1962-63 and 1963-64 were not "due by the assessee" on April 23, 1965 when the notice under Section 226 (3) of the new Act was issued.We are accordingly of the opinion that Mr. Srinivasan is unable to make good his argument on this aspect of the case. It follows therefore that the impugned notice dated April 23, 1965 was validly issued as regards items 4 and 5, viz., Penalty for assessment year 1962-63, i. e., Rs. 1,890 and tax for the assessment year 1963-64, i. e., Rs. 64,307.90.6. We proceed to consider the next question arising in this appeal, viz., whether the High Court was right in taking the view that the Income-tax Officer did not properly exercise the statutory discretion in issuing the impugned notice with regard to the first item, viz., tax for the assessment year 1960-61 amounting to Rs. 7,056.15. It was argued on behalf of the respondent that there was an appeal pending with the Appellate Assistant Commissioner against the order of assessment and therefore it was incumbent upon the Incometax Officer to exercise the statutory discretion properly under Section 220 (6) of the new Act in treating the assessor as being in default.The finding of the High Court is that the Income-tax Officer "was not shown to have applied his mind to any of the facts relevant to the proper exercise of his discretion". In our opinion, the finding of the High Court cannot be upheld, because the respondent has not alleged in his writ petition any specific particulars in support of his case that the Income-tax officer has exercised his discretion in an arbitrary manner.In paragraph 12 (b) of the writ petition the respondent had merely said that "the order of the Income-tax Officer made under Section 220 was arbitrary and capricious". No other particulars were given by the respondent in his writ petition to show in what way the order was arbitrary or capricious. In the counter-affidavit the allegations of the respondent have been denied in this respect. We are of opinion that in the absence of specific particulars by the respondent in his writ petition it is not open to the High Court to go into the question whether the Income-tax Officer has arbitrarily exercised his discretion. In the result we hold that the respondent is unable to substantiate, his case that the impugned notice is in any way defective with regard to item No. 1, i. e. tax for the assessment year 1960-61 amounting to Rs. 7,056.15. | 0[ds]In our opinion, the argument on behalf, of the appellant is well founded and must be accepted as correct. In the first place, it is necessary to notice that S. 220 (4) of the new Act mentions in what circumstances the assessee shall be deemed to be in default and S. 222 provides that when an assessee is in default or is deemed to be in default in making payment of tax, the Income-tax Officer may forward to the Tax Recovery Officer a certificate under his signature specifying the amount of arrears due from the assessee, and the Tax Recovery Officer on receipt of such certificate, shall proceed to recover from the assessee the amount specified therein by one or more of the modes mentioned in the section. Section 226, however, provides for other methods of recovery and there is no reference in S. 226 (3) to any default on the part of the assessee. Section 226 (3) merely states that the Income-tax Officer may, at any time or from time to time", by notice in writing require any person from whom money is due or may become due to the assessee or any person who holds or may, subsequently hold money for or on account of the assessee, to pay to the Income-tax Officer either forthwith so much of the money as is sufficient to pay the amount due by the assessee in respect of arrears or the whole of the money when it is equal to or less than that amount.In a proceeding under S. 226 (3) of the new Act therefore it is not necessary that the assessee should be in default or should be deemed to be in default and no such condition or limitation is imposed by the language of that sub-section. We are accordingly of the opinion that the Income-tax Officer had authority to issue the notice dated December 11, 1963 under S. 156 of the new Act with respect to the tax liability of Rs. 485.55 incurred by the respondent under the old Act. The High Court has expressed the view that "in the case of an assessment under the old Act no notice under Section 156 of the new Act was possible", and "there was no way of taking advantage of the provisions for recovery and collection of tax contained in Sections 220 to 234 of the new Act". The High Court has based its opinion on the premise that all recoveries are possible only when the stage mentioned in Section 220 (4) was reached, namely that the assessee had become or deemed to have been an assessee in default" and the action under Section 226 could be taken only when an assessee was in default In our opinion, the reasoning adopted by the High Court and the conclusion reached by it are not correct in law. The effect of the judgment of the High Court on this point is that the provisions of Section197 (2) (j) of the new Act are nullified an declared to be of no consequence. An interpretation of Section 226 (3) of the new Act which leads to such a startling result should be avoided as it is opposed to all sound canons of interpretation. As we have already stated, there is nothing in the language of Section 226 (3) of the new Act to warrant the conclusion that the assessee should be in default or should be deemed to be in default before the issue of the notice under that sub-section. It is true that the group of sections from Section 220 to Sec.232 of the new Act are placed under the heading "Collection and recovery".But in a case falling within Section 297 (2) (j) of the new Act, for example in a proceeding for recovery of tax and penalty imposed under the old Act, it is not required that all the sections of the new Act relating to recovery and collection should be literally applied but only such of the sections will apply as are appro priate in the particular case and subject if necessary, to suitable modifications. In other words, the procedure of the new Act will apply to the cases contemplated by Section 297 (2) (j) of the new Act mutatis mutandis.As regards items 4 and 5 for the assessment years 1962-63 and 1963-64 the argument of the respondent is that the impugned notice issued on April 23, 1965 was not legally valid as notices of demand were served on the respondent for payment of these sums and time given in this notice was due to expire on May 21, 1965. The impugned notice was issued on April 23, 1965, nearly a month before that date. As the tax and penalty covered by the notice were not due till May 21, 1965 it was said that notice of attachment under Sec. 226 (3) of the new Act could not legally be issued on April 23, 1965. In our opinion, there is no warrant for this argument. As we have already observed, there is nothing in the language of Sec. 226 (3) of the new Act to suggest that the assessee must be in default before a notice under that sub-section could be issued. It is true that Section 220 of the new Act deals with the question as to when the tax is payable and when the assessee is deemed to be in default but so far as Section 226 (3) of the new Act is concerned, the question of any default of the assessee is irrelevant. It was argued by Mr. Srinivasan on behalf of the respondent that the amount of tax must be "due to be paid" by the assessee before a notice can be issued under Sec. 226 (3) of the new Act. It is not disputed in this case that the notices of demand under Section 156 of the new Act were served on the respondent before the issue of the notice under Section 226 (3) of the newthe High Court was right in taking the view that the Income-tax Officer did not properly exercise the statutory discretion in issuing the impugned notice with regard to the first item, viz., tax for the assessment year 1960-61 amounting to Rs. | 0 | 4,272 | 1,146 | ### 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:
pointed out that Section 6 of the General Clauses Act will not apply in respect of those matters where Parliament had clearly expressed its intention to the contrary by making detailed provisions for similar matters mentioned in that section.For these reasons we are of opinion that the Income-tax Officer had authority to issue the notices under Section 156 and Section 226 (3) of the new Act with respect to the liability of the respondent under the old Act. The High Court was therefore in error in holding that the impugned notice was inoperative in regard to the amount of Rs. 485.55 for the assessment year 1961-62.5. As regards items 4 and 5 for the assessment years 1962-63 and 1963-64 the argument of the respondent is that the impugned notice issued on April 23, 1965 was not legally valid as notices of demand were served on the respondent for payment of these sums and time given in this notice was due to expire on May 21, 1965. The impugned notice was issued on April 23, 1965, nearly a month before that date. As the tax and penalty covered by the notice were not due till May 21, 1965 it was said that notice of attachment under Sec. 226 (3) of the new Act could not legally be issued on April 23, 1965. In our opinion, there is no warrant for this argument. As we have already observed, there is nothing in the language of Sec. 226 (3) of the new Act to suggest that the assessee must be in default before a notice under that sub-section could be issued. It is true that Section 220 of the new Act deals with the question as to when the tax is payable and when the assessee is deemed to be in default but so far as Section 226 (3) of the new Act is concerned, the question of any default of the assessee is irrelevant. It was argued by Mr. Srinivasan on behalf of the respondent that the amount of tax must be "due to be paid" by the assessee before a notice can be issued under Sec. 226 (3) of the new Act. It is not disputed in this case that the notices of demand under Section 156 of the new Act were served on the respondent before the issue of the notice under Section 226 (3) of the new Act. As pointed out by this Court in Kesoram Industries and Cotton Mills Ltd. v. Commissioner of Wealthtax (Central), Calcutta, 1966-59 ITR 767 = (AIR 1966 SC1370), the liability to pay income-tax is a present liability though the tax becomes payable after it is quantified in accordance with ascertainable data and therefore the amount of the provision (sic) for payment of income-tax and super-tax in respect of the year of account ending March 31, 1957 in that case, was a "debt owed" within the meaning of section 2 (m) of the Wealth-tax Act and was as such deductible in computing the net wealth. It was further observed in that case that there was a perfected debt at any rate on the last date of the accounting year and not a contingent liability. In the present case, there is the additional circumstance that the assessments of tax and penalty have been made against the respondent and demand notices have also been issued under Section 156 of the new Act. It is therefore not possible to argue that the amount of tax and penalty for the assessment years 1962-63 and 1963-64 were not "due by the assessee" on April 23, 1965 when the notice under Section 226 (3) of the new Act was issued.We are accordingly of the opinion that Mr. Srinivasan is unable to make good his argument on this aspect of the case. It follows therefore that the impugned notice dated April 23, 1965 was validly issued as regards items 4 and 5, viz., Penalty for assessment year 1962-63, i. e., Rs. 1,890 and tax for the assessment year 1963-64, i. e., Rs. 64,307.90.6. We proceed to consider the next question arising in this appeal, viz., whether the High Court was right in taking the view that the Income-tax Officer did not properly exercise the statutory discretion in issuing the impugned notice with regard to the first item, viz., tax for the assessment year 1960-61 amounting to Rs. 7,056.15. It was argued on behalf of the respondent that there was an appeal pending with the Appellate Assistant Commissioner against the order of assessment and therefore it was incumbent upon the Incometax Officer to exercise the statutory discretion properly under Section 220 (6) of the new Act in treating the assessor as being in default.The finding of the High Court is that the Income-tax Officer "was not shown to have applied his mind to any of the facts relevant to the proper exercise of his discretion". In our opinion, the finding of the High Court cannot be upheld, because the respondent has not alleged in his writ petition any specific particulars in support of his case that the Income-tax officer has exercised his discretion in an arbitrary manner.In paragraph 12 (b) of the writ petition the respondent had merely said that "the order of the Income-tax Officer made under Section 220 was arbitrary and capricious". No other particulars were given by the respondent in his writ petition to show in what way the order was arbitrary or capricious. In the counter-affidavit the allegations of the respondent have been denied in this respect. We are of opinion that in the absence of specific particulars by the respondent in his writ petition it is not open to the High Court to go into the question whether the Income-tax Officer has arbitrarily exercised his discretion. In the result we hold that the respondent is unable to substantiate, his case that the impugned notice is in any way defective with regard to item No. 1, i. e. tax for the assessment year 1960-61 amounting to Rs. 7,056.15.
### Response:
0
### Explanation:
the assessee shall be deemed to be in default and S. 222 provides that when an assessee is in default or is deemed to be in default in making payment of tax, the Income-tax Officer may forward to the Tax Recovery Officer a certificate under his signature specifying the amount of arrears due from the assessee, and the Tax Recovery Officer on receipt of such certificate, shall proceed to recover from the assessee the amount specified therein by one or more of the modes mentioned in the section. Section 226, however, provides for other methods of recovery and there is no reference in S. 226 (3) to any default on the part of the assessee. Section 226 (3) merely states that the Income-tax Officer may, at any time or from time to time", by notice in writing require any person from whom money is due or may become due to the assessee or any person who holds or may, subsequently hold money for or on account of the assessee, to pay to the Income-tax Officer either forthwith so much of the money as is sufficient to pay the amount due by the assessee in respect of arrears or the whole of the money when it is equal to or less than that amount.In a proceeding under S. 226 (3) of the new Act therefore it is not necessary that the assessee should be in default or should be deemed to be in default and no such condition or limitation is imposed by the language of that sub-section. We are accordingly of the opinion that the Income-tax Officer had authority to issue the notice dated December 11, 1963 under S. 156 of the new Act with respect to the tax liability of Rs. 485.55 incurred by the respondent under the old Act. The High Court has expressed the view that "in the case of an assessment under the old Act no notice under Section 156 of the new Act was possible", and "there was no way of taking advantage of the provisions for recovery and collection of tax contained in Sections 220 to 234 of the new Act". The High Court has based its opinion on the premise that all recoveries are possible only when the stage mentioned in Section 220 (4) was reached, namely that the assessee had become or deemed to have been an assessee in default" and the action under Section 226 could be taken only when an assessee was in default In our opinion, the reasoning adopted by the High Court and the conclusion reached by it are not correct in law. The effect of the judgment of the High Court on this point is that the provisions of Section197 (2) (j) of the new Act are nullified an declared to be of no consequence. An interpretation of Section 226 (3) of the new Act which leads to such a startling result should be avoided as it is opposed to all sound canons of interpretation. As we have already stated, there is nothing in the language of Section 226 (3) of the new Act to warrant the conclusion that the assessee should be in default or should be deemed to be in default before the issue of the notice under that sub-section. It is true that the group of sections from Section 220 to Sec.232 of the new Act are placed under the heading "Collection and recovery".But in a case falling within Section 297 (2) (j) of the new Act, for example in a proceeding for recovery of tax and penalty imposed under the old Act, it is not required that all the sections of the new Act relating to recovery and collection should be literally applied but only such of the sections will apply as are appro priate in the particular case and subject if necessary, to suitable modifications. In other words, the procedure of the new Act will apply to the cases contemplated by Section 297 (2) (j) of the new Act mutatis mutandis.As regards items 4 and 5 for the assessment years 1962-63 and 1963-64 the argument of the respondent is that the impugned notice issued on April 23, 1965 was not legally valid as notices of demand were served on the respondent for payment of these sums and time given in this notice was due to expire on May 21, 1965. The impugned notice was issued on April 23, 1965, nearly a month before that date. As the tax and penalty covered by the notice were not due till May 21, 1965 it was said that notice of attachment under Sec. 226 (3) of the new Act could not legally be issued on April 23, 1965. In our opinion, there is no warrant for this argument. As we have already observed, there is nothing in the language of Sec. 226 (3) of the new Act to suggest that the assessee must be in default before a notice under that sub-section could be issued. It is true that Section 220 of the new Act deals with the question as to when the tax is payable and when the assessee is deemed to be in default but so far as Section 226 (3) of the new Act is concerned, the question of any default of the assessee is irrelevant. It was argued by Mr. Srinivasan on behalf of the respondent that the amount of tax must be "due to be paid" by the assessee before a notice can be issued under Sec. 226 (3) of the new Act. It is not disputed in this case that the notices of demand under Section 156 of the new Act were served on the respondent before the issue of the notice under Section 226 (3) of the newthe High Court was right in taking the view that the Income-tax Officer did not properly exercise the statutory discretion in issuing the impugned notice with regard to the first item, viz., tax for the assessment year 1960-61 amounting to Rs.
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Commissioner of Income Tax-3 Vs. Tania Investments Private Limited | P.C.Revenue is in appeal on the following question.Whether on the facts and in the circumstances of the case and in law the Honble Tribunal was right in deleting the addition of Rs.7,41,17,495/- made by the Assessing Officer towards unexplained Cash credits even though the assessee company had not proved the credit worthiness of the creditors to advance the loans to the Assessee Company2. In the instant case, the Assessing Officer has disallowed the loss on the ground that there was no material. Before the CIT(A) remand report was called from the Assessing Officer. The Assessing officer on remand in his report admitted that the identity of the parties and also that there was corresponding entries in the books of account. The CIT (A) consequently allowed the appeal. Revenue came in appeal before the ITAT which was dismissed and consequently, the present appeal.3. At the hearing on behalf of the revenue, the learned counsel submits that in case of entries in books of accounts pertaining to cash credit, the assessee has to establish i) the identity of the party ii) capacity and (iii) the genuineness of the transaction. In the instant case, the learned counsel admits that so far as identity is concerned, the parties have been identified and similarly in the books of accounts produced by them corresponding entries were found. The learned counsel submits that one of the predicate namely capacity to advance loan was not established, and ITAT ought to have restored the matter to the Assessing Officer for reconsideration.4. The learned Tribunal in its order, in order to answer the said contention, observed as under."The learned Assessing Officer having any doubt with regard to capacity of the party to advance loan, no one prevented him to verify the capacity of the creditors."5. In our opinion, the books of accounts were available to the Assessing Officer. The books of accounts itself would indicate the capacity of the party to advance loan. There was no further need on the part of the assessee to prove the capacity of the creditors.6. In the instant case, it is not possible to hold that the reasoning adopted by the Tribunal is devoid of merit and/or unsustainable. | 0[ds]The learned Tribunal in its order, in order to answer the said contention, observed as under."The learned Assessing Officer having any doubt with regard to capacity of the party to advance loan, no one prevented him to verify the capacity of the creditors."5.In our opinion, the books of accounts were available to the Assessing Officer. The books of accounts itself would indicate the capacity of the party to advance loan. There was no further need on the part of the assessee to prove the capacity of the creditors.6.In the instant case, it is not possible to hold that the reasoning adopted by the Tribunal is devoid of merit and/or unsustainable. | 0 | 404 | 128 | ### 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:
P.C.Revenue is in appeal on the following question.Whether on the facts and in the circumstances of the case and in law the Honble Tribunal was right in deleting the addition of Rs.7,41,17,495/- made by the Assessing Officer towards unexplained Cash credits even though the assessee company had not proved the credit worthiness of the creditors to advance the loans to the Assessee Company2. In the instant case, the Assessing Officer has disallowed the loss on the ground that there was no material. Before the CIT(A) remand report was called from the Assessing Officer. The Assessing officer on remand in his report admitted that the identity of the parties and also that there was corresponding entries in the books of account. The CIT (A) consequently allowed the appeal. Revenue came in appeal before the ITAT which was dismissed and consequently, the present appeal.3. At the hearing on behalf of the revenue, the learned counsel submits that in case of entries in books of accounts pertaining to cash credit, the assessee has to establish i) the identity of the party ii) capacity and (iii) the genuineness of the transaction. In the instant case, the learned counsel admits that so far as identity is concerned, the parties have been identified and similarly in the books of accounts produced by them corresponding entries were found. The learned counsel submits that one of the predicate namely capacity to advance loan was not established, and ITAT ought to have restored the matter to the Assessing Officer for reconsideration.4. The learned Tribunal in its order, in order to answer the said contention, observed as under."The learned Assessing Officer having any doubt with regard to capacity of the party to advance loan, no one prevented him to verify the capacity of the creditors."5. In our opinion, the books of accounts were available to the Assessing Officer. The books of accounts itself would indicate the capacity of the party to advance loan. There was no further need on the part of the assessee to prove the capacity of the creditors.6. In the instant case, it is not possible to hold that the reasoning adopted by the Tribunal is devoid of merit and/or unsustainable.
### Response:
0
### Explanation:
The learned Tribunal in its order, in order to answer the said contention, observed as under."The learned Assessing Officer having any doubt with regard to capacity of the party to advance loan, no one prevented him to verify the capacity of the creditors."5.In our opinion, the books of accounts were available to the Assessing Officer. The books of accounts itself would indicate the capacity of the party to advance loan. There was no further need on the part of the assessee to prove the capacity of the creditors.6.In the instant case, it is not possible to hold that the reasoning adopted by the Tribunal is devoid of merit and/or unsustainable.
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Commissioner Of Income-Tax, West Bengal Vs. Central India Industries Ltd | depend on the valuation made by the distributing company. The income earned by an assessee has to be determined by the authorities under the Act and not by a third person. If it is otherwise several companies may distribute their dividends in kind and under value the goods distributed and thereby facilitate evasion of tax by their shareholders. Acceptance of such a contention will be destructive of the very basis of taxation of dividends. The question whether the shareholder retains those shares or sells them to others at profit or loss is irrelevant. An income does not cease to be an income merely because the person who receives it retains it in his hands. The fact that he receives it in kind makes no difference in principle. What is brought to tax in the concerned assessment year is the income received by the assessee and not the profits earned by him by dealing with that income. In our opinion, the Tribunal went wrong in thinking that as the assessee company had retained those shares in its own hands those shares should be valued at their face value. At this juncture, it is necessary to mention that in some previous years also the parent company had distributed a portion of its share holding as dividend to its shareholders. It appears, in those years the market value of those shares was less than their face value and the parent company valued those shares for the purpose of its income-tax on the basis of market value and not according to their face value. The parent company appears to believe in the saying "Heads I win tails by loose". But that is only by the way. The only question that we have to decide is what is the income received by the assessee company during the assessment year in question - the income in the real sense. On this question there can be no two answers and the only answer is that the income received by it is the cash amount received plus the value of the shares received the real value of the shares as on the date the assessee company became entitled to it.6. Both the Tribunal and the High Court have attached considerable importance to the fact that while assessing the parent company, the assessing authority had valued those shares at their face value. That being so, they have opined that it was not open to the authorities under the Act to value those shares differently in the hands of the assessee company. Here again we are unable to appreciate their reasoning.The fact that the Department incorrectly valued those shares in the hands of the parent company does not confer a right on the assessee company to insist that the error should also be carried to the assessment of the assessee company. No one gets a vested right in an erroneous order. Because of erroneous valuation of the shares in the hands of the parent company, the assessee may conceivably get a lesser amount as refund under S. 18 (5) but that circumstance cannot alter the levy to be imposed on the assessee company.7. Mr. B. Sen, learned Counsel for the assessee company, tried to give a different shape to the case in the course of his arguments. He, in our opinion, rightly did not base his arguments on the grounds relied on by the Tribunal and the High Court. On the other hand, he contended that on a proper interpretation of the relevant provisions of the Act, it would be seen that the scheme of the Act, in the matter of levying tax on dividend income is that the Income-tax Officer should adopt a uniform method in assessing both the company declaring dividends as well as its shareholders who receive the dividend. In support of this theory of his he relied on Ss. 12 (1-A), 16 (2), 18 (5), 20 and 35 (9) of the Act. Dividend is treated as income in view of S. 12 (1-A). Net dividend received by the shareholders is grossed up for inclusion in the total income of the assessee under S. 16 (2). Section 18 (5) provides for refund of the tax paid on the dividend income by the company which has distributed dividend. Section 20 provides for the issuance of a certificate showing the gross dividend, tax payable on that dividend and the net dividend. Section 35 (9) empowers the Income-tax Officer to recover from the person who receives dividend the tax in respect of the same, payable by the company which distributed the dividend but in fact not paid by that company within the prescribed time. On the basis of these provisions, he urged that if the dividend paid in kind is valued in one manner in the hands of the company which distributed it and in a different manner in the hands of the person who receive it, then the assessee will not be able to get the refund to which he would have been entitled to had that property been valued properly in the hands of the distributing company. Therefore, he urged that we must spell out the scheme put forward by him. Ingenious, though the argument is, it rests on no foundation. There is no provision in the Act which makes the assessment of income dependent on refund. The provisions relating to assessment are independent of refund though the provisions relating to refund may depend on assessment. Equitable considerations are not relevant in interpreting the provisions of a taxing statute, apart from the fact the equity pleaded in this case is remote possibility. None of the provisions relied on by Mr. Sen afford any basis for the scheme sought to be established by him.8. In our opinion the High Court erred in answering the question referred to it in the affirmative and in favour of the assessee. For the reasons mentioned above we discharge that answer and answer that question in the negative and in favour of the Department. | 1[ds]5. It is now well settled by the decision of this Court in Kantilal Manilal v. Commr, ofBombay North, Kutch and Saurashtra, Ahmedabad 41 ITR 275 = (AIR 1961 SC 1038 ) that dividend need not be distributed in money only. It may be distributed by delivery of property or right having monetary value. Further, the question whether a dividend has been lawfully distributed or not in the matter of bringing the dividend declared to tax is also irrelevant so long as the distributing company passes a resolution distributing dividends. In so doing, the distributing company may act illegally and thereby incur penalties. But yet the amount so distributed as dividend is assessable in the hands of the receiver of the dividends in view of S. 16 (2) which provides that for the purpose of inclusion in the total income of an assessee, any dividend shall be deemed to be income of the previous year in which it is paid. This position is made clear by the decision of this Court in Kishinchand Chellaram v. Commr. ofBombay, (1962) 46 ITR 640 = (AIR 1963 SCmay also be some other property or right which has monetary value. Therefore when dividend is received in kind, in order to find out the true income received by an assessee, the property that has been received by him has to be valued on the basis of its market value. Otherwise it is not possible to compute the income received by him. It is well known that the face value of shares need not be their real value at a given point of time. The market price of particular shares may be very much more than their face value or very much less. It would be wrong to say that when shares are distributed as dividend, the person who receives them gets only their face value in terms of money. What he really receives is the market value of those shares as on the date he became entitled to those shares. The value of the shares distributed does not depend on the valuation made by the distributing company. The income earned by an assessee has to be determined by the authorities under the Act and not by a third person. If it is otherwise several companies may distribute their dividends in kind and under value the goods distributed and thereby facilitate evasion of tax by their shareholders. Acceptance of such a contention will be destructive of the very basis of taxation of dividends. The question whether the shareholder retains those shares or sells them to others at profit or loss is irrelevant. An income does not cease to be an income merely because the person who receives it retains it in his hands. The fact that he receives it in kind makes no difference in principle. What is brought to tax in the concerned assessment year is the income received by the assessee and not the profits earned by him by dealing with that income. In our opinion, the Tribunal went wrong in thinking that as the assessee company had retained those shares in its own hands those shares should be valued at their face value. At this juncture, it is necessary to mention that in some previous years also the parent company had distributed a portion of its share holding as dividend to its shareholders. It appears, in those years the market value of those shares was less than their face value and the parent company valued those shares for the purpose of itson the basis of market value and not according to their face value. The parent company appears to believe in the saying "Heads I win tails by loose". But that is only by thethis question there can be no two answers and the only answer is that the income received by it is the cash amount received plus the value of the shares received the real value of the shares as on the date the assessee company became entitled to it.6. Both the Tribunal and the High Court have attached considerable importance to the fact that while assessing the parent company, the assessing authority had valued those shares at their face value. That being so, they have opined that it was not open to the authorities under the Act to value those shares differently in the hands of the assessee company. Here again we are unable to appreciate their reasoning.The fact that the Department incorrectly valued those shares in the hands of the parent company does not confer a right on the assessee company to insist that the error should also be carried to the assessment of the assessee company. No one gets a vested right in an erroneous order. Because of erroneous valuation of the shares in the hands of the parent company, the assessee may conceivably get a lesser amount as refund under S. 18 (5) but that circumstance cannot alter the levy to be imposed on the assesseeMr. B. Sen, learned Counsel for the assessee company, tried to give a different shape to the case in the course of his arguments. He, in our opinion, rightly did not base his arguments on the grounds relied on by the Tribunal and the High Court. On the other hand, he contended that on a proper interpretation of the relevant provisions of the Act, it would be seen that the scheme of the Act, in the matter of levying tax on dividend income is that theOfficer should adopt a uniform method in assessing both the company declaring dividends as well as its shareholders who receive the dividend. In support of this theory of his he relied on Ss. 1216 (2), 18 (5), 20 and 35 (9) of the Act. Dividend is treated as income in view of S. 12Net dividend received by the shareholders is grossed up for inclusion in the total income of the assessee under S. 16 (2). Section 18 (5) provides for refund of the tax paid on the dividend income by the company which has distributed dividend. Section 20 provides for the issuance of a certificate showing the gross dividend, tax payable on that dividend and the net dividend. Section 35 (9) empowers theOfficer to recover from the person who receives dividend the tax in respect of the same, payable by the company which distributed the dividend but in fact not paid by that company within the prescribed time. On the basis of these provisions, he urged that if the dividend paid in kind is valued in one manner in the hands of the company which distributed it and in a different manner in the hands of the person who receive it, then the assessee will not be able to get the refund to which he would have been entitled to had that property been valued properly in the hands of the distributing company. Therefore, he urged that we must spell out the scheme put forward by him. Ingenious, though the argument is, it rests on no foundation. There is no provision in the Act which makes the assessment of income dependent on refund. The provisions relating to assessment are independent of refund though the provisions relating to refund may depend on assessment. Equitable considerations are not relevant in interpreting the provisions of a taxing statute, apart from the fact the equity pleaded in this case is remote possibility. None of the provisions relied on by Mr. Sen afford any basis for the scheme sought to be established by him.8. In our opinion the High Court erred in answering the question referred to it in the affirmative and in favour of the assessee. For the reasons mentioned above we discharge that answer and answer that question in the negative and in favour of the Department. | 1 | 2,662 | 1,407 | ### Instruction:
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depend on the valuation made by the distributing company. The income earned by an assessee has to be determined by the authorities under the Act and not by a third person. If it is otherwise several companies may distribute their dividends in kind and under value the goods distributed and thereby facilitate evasion of tax by their shareholders. Acceptance of such a contention will be destructive of the very basis of taxation of dividends. The question whether the shareholder retains those shares or sells them to others at profit or loss is irrelevant. An income does not cease to be an income merely because the person who receives it retains it in his hands. The fact that he receives it in kind makes no difference in principle. What is brought to tax in the concerned assessment year is the income received by the assessee and not the profits earned by him by dealing with that income. In our opinion, the Tribunal went wrong in thinking that as the assessee company had retained those shares in its own hands those shares should be valued at their face value. At this juncture, it is necessary to mention that in some previous years also the parent company had distributed a portion of its share holding as dividend to its shareholders. It appears, in those years the market value of those shares was less than their face value and the parent company valued those shares for the purpose of its income-tax on the basis of market value and not according to their face value. The parent company appears to believe in the saying "Heads I win tails by loose". But that is only by the way. The only question that we have to decide is what is the income received by the assessee company during the assessment year in question - the income in the real sense. On this question there can be no two answers and the only answer is that the income received by it is the cash amount received plus the value of the shares received the real value of the shares as on the date the assessee company became entitled to it.6. Both the Tribunal and the High Court have attached considerable importance to the fact that while assessing the parent company, the assessing authority had valued those shares at their face value. That being so, they have opined that it was not open to the authorities under the Act to value those shares differently in the hands of the assessee company. Here again we are unable to appreciate their reasoning.The fact that the Department incorrectly valued those shares in the hands of the parent company does not confer a right on the assessee company to insist that the error should also be carried to the assessment of the assessee company. No one gets a vested right in an erroneous order. Because of erroneous valuation of the shares in the hands of the parent company, the assessee may conceivably get a lesser amount as refund under S. 18 (5) but that circumstance cannot alter the levy to be imposed on the assessee company.7. Mr. B. Sen, learned Counsel for the assessee company, tried to give a different shape to the case in the course of his arguments. He, in our opinion, rightly did not base his arguments on the grounds relied on by the Tribunal and the High Court. On the other hand, he contended that on a proper interpretation of the relevant provisions of the Act, it would be seen that the scheme of the Act, in the matter of levying tax on dividend income is that the Income-tax Officer should adopt a uniform method in assessing both the company declaring dividends as well as its shareholders who receive the dividend. In support of this theory of his he relied on Ss. 12 (1-A), 16 (2), 18 (5), 20 and 35 (9) of the Act. Dividend is treated as income in view of S. 12 (1-A). Net dividend received by the shareholders is grossed up for inclusion in the total income of the assessee under S. 16 (2). Section 18 (5) provides for refund of the tax paid on the dividend income by the company which has distributed dividend. Section 20 provides for the issuance of a certificate showing the gross dividend, tax payable on that dividend and the net dividend. Section 35 (9) empowers the Income-tax Officer to recover from the person who receives dividend the tax in respect of the same, payable by the company which distributed the dividend but in fact not paid by that company within the prescribed time. On the basis of these provisions, he urged that if the dividend paid in kind is valued in one manner in the hands of the company which distributed it and in a different manner in the hands of the person who receive it, then the assessee will not be able to get the refund to which he would have been entitled to had that property been valued properly in the hands of the distributing company. Therefore, he urged that we must spell out the scheme put forward by him. Ingenious, though the argument is, it rests on no foundation. There is no provision in the Act which makes the assessment of income dependent on refund. The provisions relating to assessment are independent of refund though the provisions relating to refund may depend on assessment. Equitable considerations are not relevant in interpreting the provisions of a taxing statute, apart from the fact the equity pleaded in this case is remote possibility. None of the provisions relied on by Mr. Sen afford any basis for the scheme sought to be established by him.8. In our opinion the High Court erred in answering the question referred to it in the affirmative and in favour of the assessee. For the reasons mentioned above we discharge that answer and answer that question in the negative and in favour of the Department.
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distributed as dividend, the person who receives them gets only their face value in terms of money. What he really receives is the market value of those shares as on the date he became entitled to those shares. The value of the shares distributed does not depend on the valuation made by the distributing company. The income earned by an assessee has to be determined by the authorities under the Act and not by a third person. If it is otherwise several companies may distribute their dividends in kind and under value the goods distributed and thereby facilitate evasion of tax by their shareholders. Acceptance of such a contention will be destructive of the very basis of taxation of dividends. The question whether the shareholder retains those shares or sells them to others at profit or loss is irrelevant. An income does not cease to be an income merely because the person who receives it retains it in his hands. The fact that he receives it in kind makes no difference in principle. What is brought to tax in the concerned assessment year is the income received by the assessee and not the profits earned by him by dealing with that income. In our opinion, the Tribunal went wrong in thinking that as the assessee company had retained those shares in its own hands those shares should be valued at their face value. At this juncture, it is necessary to mention that in some previous years also the parent company had distributed a portion of its share holding as dividend to its shareholders. It appears, in those years the market value of those shares was less than their face value and the parent company valued those shares for the purpose of itson the basis of market value and not according to their face value. The parent company appears to believe in the saying "Heads I win tails by loose". But that is only by thethis question there can be no two answers and the only answer is that the income received by it is the cash amount received plus the value of the shares received the real value of the shares as on the date the assessee company became entitled to it.6. Both the Tribunal and the High Court have attached considerable importance to the fact that while assessing the parent company, the assessing authority had valued those shares at their face value. That being so, they have opined that it was not open to the authorities under the Act to value those shares differently in the hands of the assessee company. Here again we are unable to appreciate their reasoning.The fact that the Department incorrectly valued those shares in the hands of the parent company does not confer a right on the assessee company to insist that the error should also be carried to the assessment of the assessee company. No one gets a vested right in an erroneous order. Because of erroneous valuation of the shares in the hands of the parent company, the assessee may conceivably get a lesser amount as refund under S. 18 (5) but that circumstance cannot alter the levy to be imposed on the assesseeMr. B. Sen, learned Counsel for the assessee company, tried to give a different shape to the case in the course of his arguments. He, in our opinion, rightly did not base his arguments on the grounds relied on by the Tribunal and the High Court. On the other hand, he contended that on a proper interpretation of the relevant provisions of the Act, it would be seen that the scheme of the Act, in the matter of levying tax on dividend income is that theOfficer should adopt a uniform method in assessing both the company declaring dividends as well as its shareholders who receive the dividend. In support of this theory of his he relied on Ss. 1216 (2), 18 (5), 20 and 35 (9) of the Act. Dividend is treated as income in view of S. 12Net dividend received by the shareholders is grossed up for inclusion in the total income of the assessee under S. 16 (2). Section 18 (5) provides for refund of the tax paid on the dividend income by the company which has distributed dividend. Section 20 provides for the issuance of a certificate showing the gross dividend, tax payable on that dividend and the net dividend. Section 35 (9) empowers theOfficer to recover from the person who receives dividend the tax in respect of the same, payable by the company which distributed the dividend but in fact not paid by that company within the prescribed time. On the basis of these provisions, he urged that if the dividend paid in kind is valued in one manner in the hands of the company which distributed it and in a different manner in the hands of the person who receive it, then the assessee will not be able to get the refund to which he would have been entitled to had that property been valued properly in the hands of the distributing company. Therefore, he urged that we must spell out the scheme put forward by him. Ingenious, though the argument is, it rests on no foundation. There is no provision in the Act which makes the assessment of income dependent on refund. The provisions relating to assessment are independent of refund though the provisions relating to refund may depend on assessment. Equitable considerations are not relevant in interpreting the provisions of a taxing statute, apart from the fact the equity pleaded in this case is remote possibility. None of the provisions relied on by Mr. Sen afford any basis for the scheme sought to be established by him.8. In our opinion the High Court erred in answering the question referred to it in the affirmative and in favour of the assessee. For the reasons mentioned above we discharge that answer and answer that question in the negative and in favour of the Department.
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Tata Memorial Hospital Workers Union Vs. Tata Memorial Centre & Another | the Hospital and the Research Centre is independently with the first respondent. As far as the control and management are concerned, it is clear from the facts referred to above that the Central Government has the power to appoint four nominees on the Governing Council of the first respondent. We have already seen, as held in Heavy Engineering Mazdoor Union Case (Supra), mere power to appoint the Directors does not warrant a conclusion that the particular undertaking is a Central Government Undertaking. The question is whether the undertaking is functioning as the agent of the Central Government. In the instant case, the society was created to entrust the control and management of the Hospital and the Research Centre to the Society. Recital No.9 of the agreement of the 1966 specifically states as follows: "9) AND WHEREAS the Government of India and the Trustees of the Sir Dorabji Tata Trust are now desirous of amalgamating the two institutions and entrusting their control and management to a society." 58. Consequently, Rule - 3 of the Society, which has been referred to earlier, also lays down that the administration and the management vests in the Governing Council. It is also to be noted that as per Rules and Regulation Nos.3 and 4 which have been quoted earlier, the administration and management of the Centre is vested in the Council which is declared to be an executive body of the center. As per the foreword to the bye-laws of the Tata Memorial Centre – "the final decision on the extent of applicability of these rules to all Tata Memorial Centre employees rests with the Tata Memorial Governing Council. Its decision on the interpretation of these rules adopted for Tata Memorial Centre employees will be final". Thus, as per the Rules and Regulations, the entire administration and management of Tata Memorial Centre is with the Governing Council. 59. It has clearly come in the evidence of Mr.Muthusamy, the Chief Administrative Officer of the first respondent that there was no interference of the Central Government in the day to day activities of the first respondent. The decisions were taken by the directors of the first respondent itself. As can be seen from the bye-laws of the first respondent, the appointments and the service conditions were modelled on the pattern of Department of Atomic Energy, but the pay, allowances and pension, etc. are on the pattern of the Mumbai Municipal Corporation, and which are fixed by the decisions of the Governing Council of the first respondent. The material and the evidence as referred to above clearly show that the entrustment of the management and control of the Hospital and the Research Centre to the Society was complete and it has been so functioning thereafter.60. Besides, as observed in Heavy Engineering Mazdoor Union Case (supra), if we look to the definition of `employer under the Industrial Disputes Act, in a case where an industry is carried on by or under the authority of the Government, the employer is defined as the authority prescribed in this behalf or Head of the Department. In the instant case, no such authority has been prescribed, nor any head of the department notified by the Central Government. On the contrary, right from the time the society was created, its administration and management is completely under its Governing Council and it is functioning independently. No contrary evidence has been produced. The evidence of Mr. Muthusamy, the Chief Administrative Officer of the Tata Memorial Centre establishes the independent functioning of the first respondent under its Governing Council. It is the Governing Council which has been exercising the executive powers of the employer.61. It was then submitted that mentioning of the Tata Memorial Centre in the Rules for Allocation of Business of Government of India is a pointer to the control of the Central Government. Insofar as the Rules of business of the Government of India are concerned, they are for the purpose of allocation of business between various departments of Government of India whenever the Government of India has to take a decision. As rightly held by a Division Bench of Bombay High Court in their own case in Tata Memorial Centre Vs. Sanjay Verma reported in 1997 (75) Indian Factories and Labour Reports Page -4 mere allocation of business under any department would not in any manner decide the issue as raised in the present case as to whether a particular industry is under the control of the Central Government. The business rules cannot be conclusive to show that any institution or organization listed under the allocation of business, would be part of any department of the Government of India. Besides, as noted in Heavy Engineering Mazdoor Union (supra) even if a Minister appoints the directors, gives directions, calls information or supervises business, that will not make the industry an agent of the Government.62. Hence we have to conclude that even on the test of control and management of the Hospital and the Centre, they are functioning independently under the 1st respondent Society. They cannot be said to be `under the control, of the Central Government. In the circumstances the State Government shall have to be held as the appropriate government for the 1st respondent for the purpose of I.D. Act consequently the MRTU & PULP Act.63. It is material to note that until the present litigation, neither the Central Government nor the Dorabji Tata Trust or even the Governing Council of the first respondent ever disputed the application of the MRTU and PULP Act to the first respondent establishment. Prior to the Applications leading to the present appeal, the respondent - 1 has also filed Complaints under the MRTU and PULP Act. Neither the appellant nor the second respondent - rival union ever disputed the application of the Act. In fact, the first respondent has in a way, by its own conduct acquiesced into the application of the Act, and the appellant - Union has been recognized under the Act right from 1985. | 0[ds]46. It is also material to note that this exercise is to be done basically in the context of an industrial dispute to find out as to whether in relation to any industrial dispute concerning that industry, Central Government is the `appropriate government or the State Government is the `appropriate government. Oxford dictionary defines word `concerning as `involving or `about. The word `concerning, according to Websters Dictionary means `relating to, `regarding or `respecting proximate, intimate and real connection with the establishment. It is to be noted that the Industrial Dispute Act is an act for investigation and settlement of industrial disputes and the MRTP and PULP Act 1971 is for recognition of trade unions for facilitating collective bargaining for certain undertakings with which we are concerned in the present matter, and for prevention of certain unfair practices amongst other objectives. This being the position it is to be noted that the examination of the issue as to which government is the `appropriate government is to be carried out in this context.How is the property of the first respondentcan be seen from the facts, which have come on record, the Tata Memorial Hospital was set up by Sir Dorabji Tata Trust. It was being maintained out of the funds of the Trust itself as well as from the grants made over by the Central Government as well as by the State Government. The Indian Cancer Research Centre was set up by the joint collaboration of Sir Dorabji Tata Trust and the Central Government by an agreement dated 07.10.1953. The initial grant for the Center was given by the Central Government and it was meeting the expenses of the Centre though it was set up on the land belonging to the Trust. In 1957 Sir Dorabji Tata Trust decided to dedicate to the nation the property on which the Tata Memorial Centre stands. An agreement was entered in that year between the trustees and the Central Government. The control and the management of the hospital was transferred to the Central Government and a vesting order was passed in the same year to that effect by the City Civil Court in appropriate proceedings. In the year 1966, the Central Government and the Dorabji Tata Trust entered into an agreement by virtue of which Tata Memorial Hospital and the Indian Cancer Research Centre were amalgamated and the first respondent society was created and the administration and the management of the Centre was vested in the Governing Council of the said Society. The first respondentCentre was registered as a Society under the Societies Registration Act, 1860 as well as under the Bombay Public Trust Act, 1950.53. The first respondent heavily relied upon the test of vesting of the property as the main criterion for ascertaining as to who controls the first respondent for the purpose of deciding as to which Government is the Appropriate Government. It was emphasized that under the agreement of 1957, the Dorabji Tata Trust handed over the property to the Central Government and that vesting had been continued in the agreement of 1966 also. It is, however, to be noted that as per this very agreement, the future acquisitions were to vest in the Governing Council of the Society.In this behalf, we must keep in mind, the raison detre of the above referred to Section5 that once a trust is established and a society is registered for the administration of the trust, the statute contemplates that the society should be fully autonomous and that the lack of actual transfer of property of the trust should not prevent the governing body in its administration. Law recognizes that it would be proper to regard that as done which ought to have been done. The deeming provision creates a fictional vesting in favour of the Governing Council and not in favour of the Society or the Trust. This is also for the reason that society is not a body corporate which has also been held by this Court in the Board of Trustees, Ayurvedic and Unani Tibia College, Delhi Vs. The State of Delhi and Another [AIR 1962 SC 458 ] and reiterated in Illachi Devi (D) by L.Rs. and Others Vs. Jain Society, Protection of Orphans India and Others [AIR 2003 SC 3397 ]. Since the society cannot hold the property in its name, vesting of the property in the trustees is likely to hinder the administration of the trust property, particularly, where the trustees themselves or their legal representatives claim adversely to the trust. It is for this reason that the law vests the property belonging to the society in its Governing Body.56. The phrase `property belonging to a person has two general meanings (1) ownership, (2) the absolute right of user (per Martin B in Att. Gen. vs. Oxford & C. Railway Co. 31 L.J. (1862) 218 at 227) `Belonging connotes either ownership or absolute right of user ( Wills J in The Governors of St. Thomas, St. Bartholomews, and Bridewell Hospital vs. Hudgell (1901) 1 KB 381. The Centre has an absolute right of user over its immovable properties which it has been exclusively exercising all throughout. Section 5 of the Societies Registration Act clearly declares that the property belonging to the society, meaning under its user, if not vested in the trustees shall be deemed to be vested in the Governing Council of the society. In the present case, it is nobodys case that the property remains vested in the Trustees of the Dorabji Tata Trust. It has been canvassed on behalf of the first respondent that the property is vested in the Central Government. However, the Central Government has never claimed any title to the property adverse to the first respondentSociety.57. Whether the Control and Management of the Hospital and the Research Centre is independently with the first respondent. As far as the control and management are concerned, it is clear from the facts referred to above that the Central Government has the power to appoint four nominees on the Governing Council of the first respondent. We have already seen, as held in Heavy Engineering Mazdoor Union Case (Supra), mere power to appoint the Directors does not warrant a conclusion that the particular undertaking is a Central Government Undertaking. The question is whether the undertaking is functioning as the agent of the Central Government. In the instant case, the society was created to entrust the control and management of the Hospital and the Research Centre to the Society.3 of the Society, which has been referred to earlier, also lays down that the administration and the management vests in the Governing Council. It is also to be noted that as per Rules and Regulation Nos.3 and 4 which have been quoted earlier, the administration and management of the Centre is vested in the Council which is declared to be an executive body of the center.It has clearly come in the evidence of Mr.Muthusamy, the Chief Administrative Officer of the first respondent that there was no interference of the Central Government in the day to day activities of the first respondent. The decisions were taken by the directors of the first respondent itself. As can be seen from theof the first respondent, the appointments and the service conditions were modelled on the pattern of Department of Atomic Energy, but the pay, allowances and pension, etc. are on the pattern of the Mumbai Municipal Corporation, and which are fixed by the decisions of the Governing Council of the first respondent. The material and the evidence as referred to above clearly show that the entrustment of the management and control of the Hospital and the Research Centre to the Society was complete and it has been so functioning thereafter.60. Besides, as observed in Heavy Engineering Mazdoor Union Case (supra), if we look to the definition of `employer under the Industrial Disputes Act, in a case where an industry is carried on by or under the authority of the Government, the employer is defined as the authority prescribed in this behalf or Head of the Department. In the instant case, no such authority has been prescribed, nor any head of the department notified by the Central Government. On the contrary, right from the time the society was created, its administration and management is completely under its Governing Council and it is functioning independently. No contrary evidence has been produced. The evidence of Mr. Muthusamy, the Chief Administrative Officer of the Tata Memorial Centre establishes the independent functioning of the first respondent under its Governing Council. It is the Governing Council which has been exercising the executive powers of the employer.61. It was then submitted that mentioning of the Tata Memorial Centre in the Rules for Allocation of Business of Government of India is a pointer to the control of the Central Government. Insofar as the Rules of business of the Government of India are concerned, they are for the purpose of allocation of business between various departments of Government of India whenever the Government of India has to take a decision. As rightly held by a Division Bench of Bombay High Court in their own case in Tata Memorial Centre Vs. Sanjay Verma reported in 1997 (75) Indian Factories and Labour Reports Page4 mere allocation of business under any department would not in any manner decide the issue as raised in the present case as to whether a particular industry is under the control of the Central Government. The business rules cannot be conclusive to show that any institution or organization listed under the allocation of business, would be part of any department of the Government of India. Besides, as noted in Heavy Engineering Mazdoor Union (supra) even if a Minister appoints the directors, gives directions, calls information or supervises business, that will not make the industry an agent of the Government.62. Hence we have to conclude that even on the test of control and management of the Hospital and the Centre, they are functioning independently under the 1st respondent Society. They cannot be said to be `under the control, of the Central Government. In the circumstances the State Government shall have to be held as the appropriate government for the 1st respondent for the purpose of I.D. Act consequently the MRTU & PULP Act.63. It is material to note that until the present litigation, neither the Central Government nor the Dorabji Tata Trust or even the Governing Council of the first respondent ever disputed the application of the MRTU and PULP Act to the first respondent establishment. Prior to the Applications leading to the present appeal, the respondent1 has also filed Complaints under the MRTU and PULP Act. Neither the appellant nor the second respondentrival union ever disputed the application of the Act. In fact, the first respondent has in a way, by its own conduct acquiesced into the application of the Act, and the appellantUnion has been recognized under the Act right from 1985. | 0 | 12,852 | 1,992 | ### 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 Hospital and the Research Centre is independently with the first respondent. As far as the control and management are concerned, it is clear from the facts referred to above that the Central Government has the power to appoint four nominees on the Governing Council of the first respondent. We have already seen, as held in Heavy Engineering Mazdoor Union Case (Supra), mere power to appoint the Directors does not warrant a conclusion that the particular undertaking is a Central Government Undertaking. The question is whether the undertaking is functioning as the agent of the Central Government. In the instant case, the society was created to entrust the control and management of the Hospital and the Research Centre to the Society. Recital No.9 of the agreement of the 1966 specifically states as follows: "9) AND WHEREAS the Government of India and the Trustees of the Sir Dorabji Tata Trust are now desirous of amalgamating the two institutions and entrusting their control and management to a society." 58. Consequently, Rule - 3 of the Society, which has been referred to earlier, also lays down that the administration and the management vests in the Governing Council. It is also to be noted that as per Rules and Regulation Nos.3 and 4 which have been quoted earlier, the administration and management of the Centre is vested in the Council which is declared to be an executive body of the center. As per the foreword to the bye-laws of the Tata Memorial Centre – "the final decision on the extent of applicability of these rules to all Tata Memorial Centre employees rests with the Tata Memorial Governing Council. Its decision on the interpretation of these rules adopted for Tata Memorial Centre employees will be final". Thus, as per the Rules and Regulations, the entire administration and management of Tata Memorial Centre is with the Governing Council. 59. It has clearly come in the evidence of Mr.Muthusamy, the Chief Administrative Officer of the first respondent that there was no interference of the Central Government in the day to day activities of the first respondent. The decisions were taken by the directors of the first respondent itself. As can be seen from the bye-laws of the first respondent, the appointments and the service conditions were modelled on the pattern of Department of Atomic Energy, but the pay, allowances and pension, etc. are on the pattern of the Mumbai Municipal Corporation, and which are fixed by the decisions of the Governing Council of the first respondent. The material and the evidence as referred to above clearly show that the entrustment of the management and control of the Hospital and the Research Centre to the Society was complete and it has been so functioning thereafter.60. Besides, as observed in Heavy Engineering Mazdoor Union Case (supra), if we look to the definition of `employer under the Industrial Disputes Act, in a case where an industry is carried on by or under the authority of the Government, the employer is defined as the authority prescribed in this behalf or Head of the Department. In the instant case, no such authority has been prescribed, nor any head of the department notified by the Central Government. On the contrary, right from the time the society was created, its administration and management is completely under its Governing Council and it is functioning independently. No contrary evidence has been produced. The evidence of Mr. Muthusamy, the Chief Administrative Officer of the Tata Memorial Centre establishes the independent functioning of the first respondent under its Governing Council. It is the Governing Council which has been exercising the executive powers of the employer.61. It was then submitted that mentioning of the Tata Memorial Centre in the Rules for Allocation of Business of Government of India is a pointer to the control of the Central Government. Insofar as the Rules of business of the Government of India are concerned, they are for the purpose of allocation of business between various departments of Government of India whenever the Government of India has to take a decision. As rightly held by a Division Bench of Bombay High Court in their own case in Tata Memorial Centre Vs. Sanjay Verma reported in 1997 (75) Indian Factories and Labour Reports Page -4 mere allocation of business under any department would not in any manner decide the issue as raised in the present case as to whether a particular industry is under the control of the Central Government. The business rules cannot be conclusive to show that any institution or organization listed under the allocation of business, would be part of any department of the Government of India. Besides, as noted in Heavy Engineering Mazdoor Union (supra) even if a Minister appoints the directors, gives directions, calls information or supervises business, that will not make the industry an agent of the Government.62. Hence we have to conclude that even on the test of control and management of the Hospital and the Centre, they are functioning independently under the 1st respondent Society. They cannot be said to be `under the control, of the Central Government. In the circumstances the State Government shall have to be held as the appropriate government for the 1st respondent for the purpose of I.D. Act consequently the MRTU & PULP Act.63. It is material to note that until the present litigation, neither the Central Government nor the Dorabji Tata Trust or even the Governing Council of the first respondent ever disputed the application of the MRTU and PULP Act to the first respondent establishment. Prior to the Applications leading to the present appeal, the respondent - 1 has also filed Complaints under the MRTU and PULP Act. Neither the appellant nor the second respondent - rival union ever disputed the application of the Act. In fact, the first respondent has in a way, by its own conduct acquiesced into the application of the Act, and the appellant - Union has been recognized under the Act right from 1985.
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of St. Thomas, St. Bartholomews, and Bridewell Hospital vs. Hudgell (1901) 1 KB 381. The Centre has an absolute right of user over its immovable properties which it has been exclusively exercising all throughout. Section 5 of the Societies Registration Act clearly declares that the property belonging to the society, meaning under its user, if not vested in the trustees shall be deemed to be vested in the Governing Council of the society. In the present case, it is nobodys case that the property remains vested in the Trustees of the Dorabji Tata Trust. It has been canvassed on behalf of the first respondent that the property is vested in the Central Government. However, the Central Government has never claimed any title to the property adverse to the first respondentSociety.57. Whether the Control and Management of the Hospital and the Research Centre is independently with the first respondent. As far as the control and management are concerned, it is clear from the facts referred to above that the Central Government has the power to appoint four nominees on the Governing Council of the first respondent. We have already seen, as held in Heavy Engineering Mazdoor Union Case (Supra), mere power to appoint the Directors does not warrant a conclusion that the particular undertaking is a Central Government Undertaking. The question is whether the undertaking is functioning as the agent of the Central Government. In the instant case, the society was created to entrust the control and management of the Hospital and the Research Centre to the Society.3 of the Society, which has been referred to earlier, also lays down that the administration and the management vests in the Governing Council. It is also to be noted that as per Rules and Regulation Nos.3 and 4 which have been quoted earlier, the administration and management of the Centre is vested in the Council which is declared to be an executive body of the center.It has clearly come in the evidence of Mr.Muthusamy, the Chief Administrative Officer of the first respondent that there was no interference of the Central Government in the day to day activities of the first respondent. The decisions were taken by the directors of the first respondent itself. As can be seen from theof the first respondent, the appointments and the service conditions were modelled on the pattern of Department of Atomic Energy, but the pay, allowances and pension, etc. are on the pattern of the Mumbai Municipal Corporation, and which are fixed by the decisions of the Governing Council of the first respondent. The material and the evidence as referred to above clearly show that the entrustment of the management and control of the Hospital and the Research Centre to the Society was complete and it has been so functioning thereafter.60. Besides, as observed in Heavy Engineering Mazdoor Union Case (supra), if we look to the definition of `employer under the Industrial Disputes Act, in a case where an industry is carried on by or under the authority of the Government, the employer is defined as the authority prescribed in this behalf or Head of the Department. In the instant case, no such authority has been prescribed, nor any head of the department notified by the Central Government. On the contrary, right from the time the society was created, its administration and management is completely under its Governing Council and it is functioning independently. No contrary evidence has been produced. The evidence of Mr. Muthusamy, the Chief Administrative Officer of the Tata Memorial Centre establishes the independent functioning of the first respondent under its Governing Council. It is the Governing Council which has been exercising the executive powers of the employer.61. It was then submitted that mentioning of the Tata Memorial Centre in the Rules for Allocation of Business of Government of India is a pointer to the control of the Central Government. Insofar as the Rules of business of the Government of India are concerned, they are for the purpose of allocation of business between various departments of Government of India whenever the Government of India has to take a decision. As rightly held by a Division Bench of Bombay High Court in their own case in Tata Memorial Centre Vs. Sanjay Verma reported in 1997 (75) Indian Factories and Labour Reports Page4 mere allocation of business under any department would not in any manner decide the issue as raised in the present case as to whether a particular industry is under the control of the Central Government. The business rules cannot be conclusive to show that any institution or organization listed under the allocation of business, would be part of any department of the Government of India. Besides, as noted in Heavy Engineering Mazdoor Union (supra) even if a Minister appoints the directors, gives directions, calls information or supervises business, that will not make the industry an agent of the Government.62. Hence we have to conclude that even on the test of control and management of the Hospital and the Centre, they are functioning independently under the 1st respondent Society. They cannot be said to be `under the control, of the Central Government. In the circumstances the State Government shall have to be held as the appropriate government for the 1st respondent for the purpose of I.D. Act consequently the MRTU & PULP Act.63. It is material to note that until the present litigation, neither the Central Government nor the Dorabji Tata Trust or even the Governing Council of the first respondent ever disputed the application of the MRTU and PULP Act to the first respondent establishment. Prior to the Applications leading to the present appeal, the respondent1 has also filed Complaints under the MRTU and PULP Act. Neither the appellant nor the second respondentrival union ever disputed the application of the Act. In fact, the first respondent has in a way, by its own conduct acquiesced into the application of the Act, and the appellantUnion has been recognized under the Act right from 1985.
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Namor Ali Choudhury And Others Vs. Central Inland Water Sport Corporation Ltd. And Another | quashed the order of the Labour Court. Hence this appeal. 3. It may be stated here that the only dispute between the management and the workman in the proceeding under S.33C(2) of Act was whether the employees in the Assam sector were also entitled to take advantage of the settlement between the company and its employees in West Bengal. The quantum or the rate of extra wages to which the workmen would have been entitled if the advantages under the settlement were found available to them was not in dispute. In that view of the matter, the High Court was of the opinion, to quote the relevant words from this judgment :"For conferring jurisdiction on a Labour Court under S. 33C(2), it is not only necessary that the workmen should be entitled to any money due but also that there should be a dispute about the amount of that money. It is clear that there is no dispute with regard to the amounts of money which have already been fixed by the settlement. That being the position, there is no question within the scope of S. 33C(2) for determination by the Labour Court in this case." 4. In our judgment the High Court has committed an error in so narrowly interpreting S.33C(2) of the Act. The said provision runs as follows :"Where any workman is entitled to receive from the employer any money or any benefit which is capable of being computed in terms of money and if any question arises as to the amount of money due or as to the amount at which such benefit should be computed, then the question may, subject to any rules that may be made under this Act, be decided by such Labour Court as may be specified in this behalf by the appropriate Government." There are two parts of the sub-sectionas it stands after its amendment by Act. 36 of 1964. The first part is concerned with the money claim simpliciter and the second part speaks about computation in terms of money of any benefit to which the workman is entitled. Although for appreciation of the point at issue there is no substantial difference between the two, we shall confine our discussion to the money claim only pure and simple. On a plain reading of the wordings of the statute it would be found that where any workman is entitled to receive from employer any money and if any question arises as to the amount of money due, then the question may be decided by the Labour Court. The expression "if any question arise as to the amount of money due" embraces within its ambit any one or more of the following kinds of disputes :"(1) Whether there is any settlement or award as alleged ? (2) Whether any workman is entitled to receive from the employer any money at all under any settlement or an award, etc. ? (3) If so, what will be the rate or quantum of such amount ? (4) Whether the amount claimed is due or not ?" Broadly speaking, there will be the disputes which will be referable to the question as to the amount of money due. If the right to get the money on the basis of the settlement or the award is not established no amount of money will be due. If it is established, then it has to be found out, albeit, it may be by mere calculation, as to what is the amount due For finding it out, it is not necessary that there should be a dispute as to the amount of money due also. The fourth kind of dispute which we have indicated obviously and literally will be covered by the phrase "amount of money due". A dispute as to all such questions or any of them would attract the provisions of S.33C(2) of the Act and make the remedy available to the workmen concerned. 5. It is not necessary to elaborately discuss the various authorities of this Court on the point. To our mind the view we have expressed above is plainly and squarely covered by the principles of law enunciated by this Court in several decisions. The Central Bank of India Ltd., v. P. S. Rajagopalan, etc., [1963-II L.L.J. 89]; (1964) 3 S.C.R. 140; R. B. Bansilal Abirchand Mills Co. Ltd. v. Labour Court, Nagpur and others (1972) 2 S.C.R. 580 and Sahu Minerals and Properties Ltd, v. Presiding Officer, Labour Court, and others, A.I.R. 1975 S.C. 1745. 6. Learned counsel for the respondent-company endeavoured to support the judgment of the High Court with reference to the provision of sub-s.(1) of S.33C of the Act. Counsel submitted that if there is a dispute as to any amount due, it is to be decided by the appropriate Government under the said provisions of law and not by the Labour Court under sub-s. (2), which is mainly concerned with the computation of the amount. Such an argument is too obviously wrong to be accepted. A detailed discussion is not necessary to reject it. The satisfaction of the appropriate Government which is spoken of in sub-section is their prima facie satisfaction when a claim is made by any workman before the Government for issuance of a certificate by the collector for realisation of the amount due. If the appropriate Government finds that the amount claimed by the workman is due and there is no such dispute which need any adjudication by the Labour Court in accordance with sub-s. (2) or the dispute raised is not bona fide, then the Government shall issue a certificate for the amount due to the collector who shall proceed to recover the same in the manner as an arrear of land revenue. The decision of this Court in Punjab National Bank Ltd., v. K. L. Kharbanda, (1962) 2 Supp. S.C.R. 977, does not help the respondent at all in support of the interpretation sought to be put by it to sub-s. (1) of S. 33C. | 1[ds]Broadly speaking, there will be the disputes which will be referable to the question as to the amount of money due. If the right to get the money on the basis of the settlement or the award is not established no amount of money will be due. If it is established, then it has to be found out, albeit, it may be by mere calculation, as to what is the amount due For finding it out, it is not necessary that there should be a dispute as to the amount of money due also. The fourth kind of dispute which we have indicated obviously and literally will be covered by the phrase "amount of money due". A dispute as to all such questions or any of them would attract the provisions of S.33C(2) of the Act and make the remedy available to the workmen concerned5. It is not necessary to elaborately discuss the various authorities of this Court on the point. To our mind the view we have expressed above is plainly and squarely covered by the principles of law enunciated by this Court in several decisionsA detailed discussion is not necessary to reject it. The satisfaction of the appropriate Government which is spoken of in sub-section is their prima facie satisfaction when a claim is made by any workman before the Government for issuance of a certificate by the collector for realisation of the amount due. If the appropriate Government finds that the amount claimed by the workman is due and there is no such dispute which need any adjudication by the Labour Court in accordance with sub-s. (2) or the dispute raised is not bona fide, then the Government shall issue a certificate for the amount due to the collector who shall proceed to recover the same in the manner as an arrear of land revenue. The decision of this Court in Punjab National Bank Ltd., v. K. L. Kharbanda, (1962) 2 Supp. S.C.R. 977, does not help the respondent at all in support of the interpretation sought to be put by it to sub-s. (1) of S. 33CSuch an argument is too obviously wrong to be accepted. | 1 | 1,362 | 397 | ### Instruction:
Speculate on the likely judgment (yes (1) or no (0) to the appeal) and then delve into the case proceeding to elucidate your prediction, focusing on critical sentences.
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quashed the order of the Labour Court. Hence this appeal. 3. It may be stated here that the only dispute between the management and the workman in the proceeding under S.33C(2) of Act was whether the employees in the Assam sector were also entitled to take advantage of the settlement between the company and its employees in West Bengal. The quantum or the rate of extra wages to which the workmen would have been entitled if the advantages under the settlement were found available to them was not in dispute. In that view of the matter, the High Court was of the opinion, to quote the relevant words from this judgment :"For conferring jurisdiction on a Labour Court under S. 33C(2), it is not only necessary that the workmen should be entitled to any money due but also that there should be a dispute about the amount of that money. It is clear that there is no dispute with regard to the amounts of money which have already been fixed by the settlement. That being the position, there is no question within the scope of S. 33C(2) for determination by the Labour Court in this case." 4. In our judgment the High Court has committed an error in so narrowly interpreting S.33C(2) of the Act. The said provision runs as follows :"Where any workman is entitled to receive from the employer any money or any benefit which is capable of being computed in terms of money and if any question arises as to the amount of money due or as to the amount at which such benefit should be computed, then the question may, subject to any rules that may be made under this Act, be decided by such Labour Court as may be specified in this behalf by the appropriate Government." There are two parts of the sub-sectionas it stands after its amendment by Act. 36 of 1964. The first part is concerned with the money claim simpliciter and the second part speaks about computation in terms of money of any benefit to which the workman is entitled. Although for appreciation of the point at issue there is no substantial difference between the two, we shall confine our discussion to the money claim only pure and simple. On a plain reading of the wordings of the statute it would be found that where any workman is entitled to receive from employer any money and if any question arises as to the amount of money due, then the question may be decided by the Labour Court. The expression "if any question arise as to the amount of money due" embraces within its ambit any one or more of the following kinds of disputes :"(1) Whether there is any settlement or award as alleged ? (2) Whether any workman is entitled to receive from the employer any money at all under any settlement or an award, etc. ? (3) If so, what will be the rate or quantum of such amount ? (4) Whether the amount claimed is due or not ?" Broadly speaking, there will be the disputes which will be referable to the question as to the amount of money due. If the right to get the money on the basis of the settlement or the award is not established no amount of money will be due. If it is established, then it has to be found out, albeit, it may be by mere calculation, as to what is the amount due For finding it out, it is not necessary that there should be a dispute as to the amount of money due also. The fourth kind of dispute which we have indicated obviously and literally will be covered by the phrase "amount of money due". A dispute as to all such questions or any of them would attract the provisions of S.33C(2) of the Act and make the remedy available to the workmen concerned. 5. It is not necessary to elaborately discuss the various authorities of this Court on the point. To our mind the view we have expressed above is plainly and squarely covered by the principles of law enunciated by this Court in several decisions. The Central Bank of India Ltd., v. P. S. Rajagopalan, etc., [1963-II L.L.J. 89]; (1964) 3 S.C.R. 140; R. B. Bansilal Abirchand Mills Co. Ltd. v. Labour Court, Nagpur and others (1972) 2 S.C.R. 580 and Sahu Minerals and Properties Ltd, v. Presiding Officer, Labour Court, and others, A.I.R. 1975 S.C. 1745. 6. Learned counsel for the respondent-company endeavoured to support the judgment of the High Court with reference to the provision of sub-s.(1) of S.33C of the Act. Counsel submitted that if there is a dispute as to any amount due, it is to be decided by the appropriate Government under the said provisions of law and not by the Labour Court under sub-s. (2), which is mainly concerned with the computation of the amount. Such an argument is too obviously wrong to be accepted. A detailed discussion is not necessary to reject it. The satisfaction of the appropriate Government which is spoken of in sub-section is their prima facie satisfaction when a claim is made by any workman before the Government for issuance of a certificate by the collector for realisation of the amount due. If the appropriate Government finds that the amount claimed by the workman is due and there is no such dispute which need any adjudication by the Labour Court in accordance with sub-s. (2) or the dispute raised is not bona fide, then the Government shall issue a certificate for the amount due to the collector who shall proceed to recover the same in the manner as an arrear of land revenue. The decision of this Court in Punjab National Bank Ltd., v. K. L. Kharbanda, (1962) 2 Supp. S.C.R. 977, does not help the respondent at all in support of the interpretation sought to be put by it to sub-s. (1) of S. 33C.
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1
### Explanation:
Broadly speaking, there will be the disputes which will be referable to the question as to the amount of money due. If the right to get the money on the basis of the settlement or the award is not established no amount of money will be due. If it is established, then it has to be found out, albeit, it may be by mere calculation, as to what is the amount due For finding it out, it is not necessary that there should be a dispute as to the amount of money due also. The fourth kind of dispute which we have indicated obviously and literally will be covered by the phrase "amount of money due". A dispute as to all such questions or any of them would attract the provisions of S.33C(2) of the Act and make the remedy available to the workmen concerned5. It is not necessary to elaborately discuss the various authorities of this Court on the point. To our mind the view we have expressed above is plainly and squarely covered by the principles of law enunciated by this Court in several decisionsA detailed discussion is not necessary to reject it. The satisfaction of the appropriate Government which is spoken of in sub-section is their prima facie satisfaction when a claim is made by any workman before the Government for issuance of a certificate by the collector for realisation of the amount due. If the appropriate Government finds that the amount claimed by the workman is due and there is no such dispute which need any adjudication by the Labour Court in accordance with sub-s. (2) or the dispute raised is not bona fide, then the Government shall issue a certificate for the amount due to the collector who shall proceed to recover the same in the manner as an arrear of land revenue. The decision of this Court in Punjab National Bank Ltd., v. K. L. Kharbanda, (1962) 2 Supp. S.C.R. 977, does not help the respondent at all in support of the interpretation sought to be put by it to sub-s. (1) of S. 33CSuch an argument is too obviously wrong to be accepted.
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Senior Law Manager, Indian Oil Corporation Ltd. and Anr Vs. Guru Shakti Singh and Anr | letter of intent for Distributorship as he was the first in the merit panel. The said writ petition was allowed by the impugned order dated 6.2.2007 holding that there should be no re-interviews and the appellant should proceed with the selection as already conducted in accordance with law. The effect of the order was that the first respondent should be granted the distributorship. The said order is challenged in this appeal by special leave. 5. It is not disputed by the first respondent that the mere fact of a merit panel being prepared with him in the first place does not entitle him to be appointed as a distributor. The case of the first respondent is that as the second respondent who challenged the selection as per the merit panel withdrew the writ petition and none else had questioned the merit panel, the said merit panel continued to be in force and was valid; and therefore, there was no need for re-interviews and he ought to have been granted the distributorship. But the issue is not whether there was a challenge, but whether there was any irregularity in the selection process, and as a consequence whether the decision of appellants to have fresh interviews is open to challenge. 6. Sardar Mahinder Singh filed a complaint alleging that he had been awarded lesser marks and first respondent had been awarded more marks. His grievances in regard to marks were as under : (a) Though he owned a land and the respondent did not own any land on the date of interview, yet, both were given equal 18 marks. He should have been awarded full marks of 25.(b) He had not been given proper marks in respect of the parameter "capability to arrange finance". In spite of providing requisite financial details, he was awarded only 7 out of 35.{c) He had been given lesser marks of 2 out of 5 under the parameter "business ability/acumen" though he was doing business for last 20 years, for which records were placed. 7. The appellant got the said complaint investigated by a committee of senior officers. The investigation revealed that under the evaluation parameter "capability to provide infrastructure" Sardar Mahinder Singh had been awarded only 18 marks whereas he ought to have been awarded 25 marks as per the company policy as he had submitted the documents in support of ownership of land, along with his application. It was also found that under the evaluation parameter "capability to provide finance : Bankers/Financial Institutions certificate for loan", Sardar Mahinder Singh had been awarded zero marks out of 7 marks even though he had submitted a certificate dated 20.2.2004 from Bank of Baroda for credit-worthiness along with his application and that he deserved marks under that head also. 8. In view of the said findings of the investigation, the second appellant (General Manager, IOC, UP State Office) took a decision that the selection process violated the guidelines and was vitiated. As a consequence, he directed that the merit panel prepared by the Selection Committee should be cancelled and ordered a re-interview. He also directed that disciplinary action should be taken against the Selection Committee Members. The above factual background leading to the direction for re-interview was completely overlooked by the High Court. 9. The High Court allowed the writ petition filed by the respondents on a rather strange reasoning. We extract below the relevant portion of the impugned order : "As already observed, since the Indian Oil Corporation after being satisfied about the illegality committed by the Committee in awarding marks to a particular candidate (since deceased), decided to re-interview all the candidates, but before the said exercise could be started, the said person died as such no relief can now be granted to him. Rest of candidates have not raised any grievance about their failure in selection, therefore, there is no question for reconsidering their case." The High Court appears to have proceeded on the basis that even though the selection process was illegal, as the complainant (Sardar Mahinder Singh), who had alleged the irregularities had died, the irregularities were no longer relevant and would no longer exist and the merit panel should be accepted. Unfortunately, the High Court failed to deal with the larger issue as to whether the Selection Committee had acted fairly and properly in awarding the marks and preparing the merit panel. If the finding was that the marks were wrongly assigned to the complainant and consequently, first respondent had benefited, it does not follow that when the complainant dies, the irregularity in assigning marks could be brushed aside or ignored. In such selections, any illegality or material irregularity in assigning marks in regard to any person with the intention of favouring some one or excluding some one, vitiates the entire selection process. Such a selection process cannot be saved by holding that the person in regard to whom lesser marks were given had died or failed to pursue his remedy. Once the appellants took cognizance of the illegality in the selection process, the withdrawal of writ petition on death of the aggrieved complainant lost significance. The issue, as already noticed, is whether the selection process was fair and proper and whether the appellant acted arbitrarily or unreasonably in taking a decision to scrap the selection process and re-interview the candidates.10. Assigning of lesser marks to Sardar Mahinder Singh not only denied him the first place in the panel, but also unjustly and undeservedly gave the first respondent, the first place in the panel. The manner of assigning marks showed a clear intention to favour the first respondent at the cost of the other applicants. It is this finding that persuaded the General Manager of IOC to scrap the selection. The High Court having recorded a finding that the appellant was satisfied about the illegality committed by the selection committee, ought to have rejected the writ petition, as the decision of the appellants to scrap the selection was reasonable and not arbitrary. | 1[ds]The High Court appears to have proceeded on the basis that even though the selection process was illegal, as the complainant (Sardar Mahinder Singh), who had alleged the irregularities had died, the irregularities were no longer relevant and would no longer exist and the merit panel should be accepted. Unfortunately, the High Court failed to deal with the larger issue as to whether the Selection Committee had acted fairly and properly in awarding the marks and preparing the merit panel. If the finding was that the marks were wrongly assigned to the complainant and consequently, first respondent had benefited, it does not follow that when the complainant dies, the irregularity in assigning marks could be brushed aside or ignored. In such selections, any illegality or material irregularity in assigning marks in regard to any person with the intention of favouring some one or excluding some one, vitiates the entire selection process. Such a selection process cannot be saved by holding that the person in regard to whom lesser marks were given had died or failed to pursue his remedy. Once the appellants took cognizance of the illegality in the selection process, the withdrawal of writ petition on death of the aggrieved complainant lost significance. The issue, as already noticed, is whether the selection process was fair and proper and whether the appellant acted arbitrarily or unreasonably in taking a decision to scrap the selection process and re-interview the candidates.10. Assigning of lesser marks to Sardar Mahinder Singh not only denied him the first place in the panel, but also unjustly and undeservedly gave the first respondent, the first place in the panel. The manner of assigning marks showed a clear intention to favour the first respondent at the cost of the other applicants. It is this finding that persuaded the General Manager of IOC to scrap the selection. The High Court having recorded a finding that the appellant was satisfied about the illegality committed by the selection committee, ought to have rejected the writ petition, as the decision of the appellants to scrap the selection was reasonable and not arbitrary. | 1 | 1,349 | 384 | ### Instruction:
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letter of intent for Distributorship as he was the first in the merit panel. The said writ petition was allowed by the impugned order dated 6.2.2007 holding that there should be no re-interviews and the appellant should proceed with the selection as already conducted in accordance with law. The effect of the order was that the first respondent should be granted the distributorship. The said order is challenged in this appeal by special leave. 5. It is not disputed by the first respondent that the mere fact of a merit panel being prepared with him in the first place does not entitle him to be appointed as a distributor. The case of the first respondent is that as the second respondent who challenged the selection as per the merit panel withdrew the writ petition and none else had questioned the merit panel, the said merit panel continued to be in force and was valid; and therefore, there was no need for re-interviews and he ought to have been granted the distributorship. But the issue is not whether there was a challenge, but whether there was any irregularity in the selection process, and as a consequence whether the decision of appellants to have fresh interviews is open to challenge. 6. Sardar Mahinder Singh filed a complaint alleging that he had been awarded lesser marks and first respondent had been awarded more marks. His grievances in regard to marks were as under : (a) Though he owned a land and the respondent did not own any land on the date of interview, yet, both were given equal 18 marks. He should have been awarded full marks of 25.(b) He had not been given proper marks in respect of the parameter "capability to arrange finance". In spite of providing requisite financial details, he was awarded only 7 out of 35.{c) He had been given lesser marks of 2 out of 5 under the parameter "business ability/acumen" though he was doing business for last 20 years, for which records were placed. 7. The appellant got the said complaint investigated by a committee of senior officers. The investigation revealed that under the evaluation parameter "capability to provide infrastructure" Sardar Mahinder Singh had been awarded only 18 marks whereas he ought to have been awarded 25 marks as per the company policy as he had submitted the documents in support of ownership of land, along with his application. It was also found that under the evaluation parameter "capability to provide finance : Bankers/Financial Institutions certificate for loan", Sardar Mahinder Singh had been awarded zero marks out of 7 marks even though he had submitted a certificate dated 20.2.2004 from Bank of Baroda for credit-worthiness along with his application and that he deserved marks under that head also. 8. In view of the said findings of the investigation, the second appellant (General Manager, IOC, UP State Office) took a decision that the selection process violated the guidelines and was vitiated. As a consequence, he directed that the merit panel prepared by the Selection Committee should be cancelled and ordered a re-interview. He also directed that disciplinary action should be taken against the Selection Committee Members. The above factual background leading to the direction for re-interview was completely overlooked by the High Court. 9. The High Court allowed the writ petition filed by the respondents on a rather strange reasoning. We extract below the relevant portion of the impugned order : "As already observed, since the Indian Oil Corporation after being satisfied about the illegality committed by the Committee in awarding marks to a particular candidate (since deceased), decided to re-interview all the candidates, but before the said exercise could be started, the said person died as such no relief can now be granted to him. Rest of candidates have not raised any grievance about their failure in selection, therefore, there is no question for reconsidering their case." The High Court appears to have proceeded on the basis that even though the selection process was illegal, as the complainant (Sardar Mahinder Singh), who had alleged the irregularities had died, the irregularities were no longer relevant and would no longer exist and the merit panel should be accepted. Unfortunately, the High Court failed to deal with the larger issue as to whether the Selection Committee had acted fairly and properly in awarding the marks and preparing the merit panel. If the finding was that the marks were wrongly assigned to the complainant and consequently, first respondent had benefited, it does not follow that when the complainant dies, the irregularity in assigning marks could be brushed aside or ignored. In such selections, any illegality or material irregularity in assigning marks in regard to any person with the intention of favouring some one or excluding some one, vitiates the entire selection process. Such a selection process cannot be saved by holding that the person in regard to whom lesser marks were given had died or failed to pursue his remedy. Once the appellants took cognizance of the illegality in the selection process, the withdrawal of writ petition on death of the aggrieved complainant lost significance. The issue, as already noticed, is whether the selection process was fair and proper and whether the appellant acted arbitrarily or unreasonably in taking a decision to scrap the selection process and re-interview the candidates.10. Assigning of lesser marks to Sardar Mahinder Singh not only denied him the first place in the panel, but also unjustly and undeservedly gave the first respondent, the first place in the panel. The manner of assigning marks showed a clear intention to favour the first respondent at the cost of the other applicants. It is this finding that persuaded the General Manager of IOC to scrap the selection. The High Court having recorded a finding that the appellant was satisfied about the illegality committed by the selection committee, ought to have rejected the writ petition, as the decision of the appellants to scrap the selection was reasonable and not arbitrary.
### Response:
1
### Explanation:
The High Court appears to have proceeded on the basis that even though the selection process was illegal, as the complainant (Sardar Mahinder Singh), who had alleged the irregularities had died, the irregularities were no longer relevant and would no longer exist and the merit panel should be accepted. Unfortunately, the High Court failed to deal with the larger issue as to whether the Selection Committee had acted fairly and properly in awarding the marks and preparing the merit panel. If the finding was that the marks were wrongly assigned to the complainant and consequently, first respondent had benefited, it does not follow that when the complainant dies, the irregularity in assigning marks could be brushed aside or ignored. In such selections, any illegality or material irregularity in assigning marks in regard to any person with the intention of favouring some one or excluding some one, vitiates the entire selection process. Such a selection process cannot be saved by holding that the person in regard to whom lesser marks were given had died or failed to pursue his remedy. Once the appellants took cognizance of the illegality in the selection process, the withdrawal of writ petition on death of the aggrieved complainant lost significance. The issue, as already noticed, is whether the selection process was fair and proper and whether the appellant acted arbitrarily or unreasonably in taking a decision to scrap the selection process and re-interview the candidates.10. Assigning of lesser marks to Sardar Mahinder Singh not only denied him the first place in the panel, but also unjustly and undeservedly gave the first respondent, the first place in the panel. The manner of assigning marks showed a clear intention to favour the first respondent at the cost of the other applicants. It is this finding that persuaded the General Manager of IOC to scrap the selection. The High Court having recorded a finding that the appellant was satisfied about the illegality committed by the selection committee, ought to have rejected the writ petition, as the decision of the appellants to scrap the selection was reasonable and not arbitrary.
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Ganga Ram Das Vs. Tezpur Kaibarta Co-Operativefishery Society Ltd | may here dispose of an argument which was urged on behalf of Respondent No, 1 before us and which appears to have found favour with the High Court that R. 12 of the Fishery Rules which is the, source of that power was ultra vires and repugnant to S. 16 of the Assam Land and Revenue Regulation 1 of 1886. That section deals with the right of fishery and provides that the Deputy Commissioner, with the previous sanction of the State Government, may by a proclamation declare any collection of water to be fishery and no right in a fishery so declared shall be deemed to have been acquired by the public or by any person except as provided in the rules made under S. 155. The instances before us are not covered by the proviso and we shall, therefore, make no mention of the same. The only relevant enquiry is whether there was any rule validly enacted under S. 155 which enabled the State Government to settle the fishery otherwise than by sale by making an individual settlement thereof with Respondent No. 1 or the appellant in the manner in which it was done. There is absolutely nothing in the provisions of S.16 which would go to show what are the principles on which such rules for the acquisition of fishery rights by the public or any person have to be made nor is there anything therein to indicate any policy which has to guide the State Government in the making of such rules.11. The whole thing is left to the discretion of the State Government which is empowered by S.155, inter alia, to make rules relating to the granting of licenses and the farming of the right to fish in fisheries proclaimed under S.16 consistent with the Regulation. No doubt the State Government would also be bound by such rules and would not he entitled to make any settlement of fishery rights unless and until there was a rule made in that behalf under S. 155. It would not be open to the State Government to contend that it had absolute property in these fishery rights and it was, therefore, entitled to settle them in any manner whatever.12. Unless therefore, the action of the State Government could he justified by reference to any rule made under S. 155 it would not avail the appellant. Reliance is accordingly placed on the provisions of R. 12 of the Fishery Rules and it is submitted that under that rule specific power is given to the State Government to settle the fishery rights otherwise than by sale.The State Government is thereby invested with the power to settle fishery rights even by individual settlements without following the auction system or the tender system. Even though this power is not vested in the State Government by express provision made in that behalf, the context of R. 12 sufficiently indicates the intention of the rule making authority.After having prescribed the procedure by way of auction sales in Rr. 1 to 11 of S. 1, a prohibition against the settlement of fishery rights otherwise than by sale is enacted in R, 12 except in the case of the State Government.No fishery it to be settled otherwise than by sale and that prohibition is general in terms but an exception is carved out in favour of the State Government in terms which are only capable of the construction that the State Government shall have the power of settling fishery rights otherwise than by sale. No limitation is placed on this power which is thus vested in the State Government and if the State Government is empowered to settle fishery rights otherwise than by sale it can do so by adopting the tender system if it thought it desirable to do so or even by entering into individual settlements if the circumstances of the case so warranted. Apart from the adoption of the tender system in place of the auction system, circumstances may conceivably arise where either by reason of the cancellation or relinquishment of fishery lease before the expiration of the period thereof and buying regard to the situation then obtaining, it may not be feasible or desirable to sell fishery rights for the unexpired portion of such a lease either by public auction or by inviting tenders and the State Government may, under there circumstances, consider it desirable to enter into individual settlement of the fishery rights so as to earn for the State as much of revenue as possible. No fetter can be placed on the discretion of the State Government in this behalf and the State Government would be the best judge of the situation and would be in a position to determine what procedure to adopt in the matter of the settlement of fishery rights otherwise than by sale. There is nothing in the provisions of S. 4 containing rules for settlement of fisheries by tender system which militates against the above position.13. We are therefore, of opinion that R. 12 specifically empowers the State Government to settle the fishery rights otherwise then by sale and there is no conflict at all between the provisions of S.16, Assam Land and Revenue Regulation, I of 1886, and R. 12 of the Fishery Rules.The decision of this appeal turns on the construction of R. 12 and we fail to understand how the question of the intra vires or the ultra vires character of R. 12 at all arises. The whole of the argument addressed before us on behalf of Respondent No. 1 is based on a misconception and cannot be sustained. The decision of this Court in State of Assam v. Keshab Prasad Singh, 1953 S. C. R. 865 = (A. I. R. 1953 S. C.309) (B) on which the learned judges of the Assam High Court apparently based their judgment in (S) A.I.R. 1956 Assam 48(A) did not touch the present controversy and it follows that that was clearly wrong and cannot be supported.14. | 1[ds]It will be seen from the above summary of the relevant rules that the normal procedure for settlement of fisheries is by holding auction sales. Power is, however, given to the State Government to introduce the tender system of settlement of fisheries in place of the auction system whenever it is considered necessary and if the Government selects any fishery or fisheries to be settled by tender system and instructs the Deputy Commissioner to lease them out for any specified period acting in exercise of that power, S. 4 prescribes the procedure for settlement of fisheries by tender system.only relevant enquiry is whether there was any rule validly enacted under S. 155 which enabled the State Government to settle the fishery otherwise than by sale by making an individual settlement thereof with Respondent No. 1 or the appellant in the manner in which it was done. There is absolutely nothing in the provisions of S.16 which would go to show what are the principles on which such rules for the acquisition of fishery rights by the public or any person have to be made nor is there anything therein to indicate any policy which has to guide the State Government in the making of such rules.The whole thing is left to the discretion of the State Government which is empowered by S.155, inter alia, to make rules relating to the granting of licenses and the farming of the right to fish in fisheries proclaimed under S.16 consistent with the Regulation. No doubt the State Government would also be bound by such rules and would not he entitled to make any settlement of fishery rights unless and until there was a rule made in that behalf under S.It would not be open to the State Government to contend that it had absolute property in these fishery rights and it was, therefore, entitled to settle them in any manner whatever.Unless therefore, the action of the State Government could he justified by reference to any rule made under S. 155 it would not avail theare therefore, of opinion that R. 12 specifically empowers the State Government to settle the fishery rights otherwise then by sale and there is no conflict at all between the provisions of S.16, Assam Land and Revenue Regulation, I of 1886, and R. 12 of the Fishery Rules.The decision of this appeal turns on the construction of R. 12 and we fail to understand how the question of the intra vires or the ultra vires character of R. 12 at all arises. The whole of the argument addressed before us on behalf of Respondent No. 1 is based on a misconception and cannot be sustained. The decision of this Court in State of Assam v. Keshab Prasad Singh, 1953 S. C. R. 865 = (A. I. R. 1953 S. C.309) (B) on which the learned judges of the Assam High Court apparently based their judgment in (S) A.I.R. 1956 Assam 48(A) did not touch the present controversy and it follows that that was clearly wrong and cannot beenough Respondent No. 1 also would have been entitled to a similar relief but there are various questions of fact involved in the determination of the question whether the fishery lease in his favour was validly cancelled by Respondent No.Respondent No. 1 moreover has disclaimed such benefits by adopting the contention that R. 12 of the fishery rights was ultra vires. We therefore do not think that Respondent No. 1 is entitled to any relief on the basis of this judgement. Respondent No. 3 the only person vitally interested in the decision of this issue will, in spite of its entry having been by the beck-door, be entitled to the benefit of this judgment, an unsought relief that it will get as a result of our decision on the main point in controversy. | 1 | 2,882 | 687 | ### Instruction:
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may here dispose of an argument which was urged on behalf of Respondent No, 1 before us and which appears to have found favour with the High Court that R. 12 of the Fishery Rules which is the, source of that power was ultra vires and repugnant to S. 16 of the Assam Land and Revenue Regulation 1 of 1886. That section deals with the right of fishery and provides that the Deputy Commissioner, with the previous sanction of the State Government, may by a proclamation declare any collection of water to be fishery and no right in a fishery so declared shall be deemed to have been acquired by the public or by any person except as provided in the rules made under S. 155. The instances before us are not covered by the proviso and we shall, therefore, make no mention of the same. The only relevant enquiry is whether there was any rule validly enacted under S. 155 which enabled the State Government to settle the fishery otherwise than by sale by making an individual settlement thereof with Respondent No. 1 or the appellant in the manner in which it was done. There is absolutely nothing in the provisions of S.16 which would go to show what are the principles on which such rules for the acquisition of fishery rights by the public or any person have to be made nor is there anything therein to indicate any policy which has to guide the State Government in the making of such rules.11. The whole thing is left to the discretion of the State Government which is empowered by S.155, inter alia, to make rules relating to the granting of licenses and the farming of the right to fish in fisheries proclaimed under S.16 consistent with the Regulation. No doubt the State Government would also be bound by such rules and would not he entitled to make any settlement of fishery rights unless and until there was a rule made in that behalf under S. 155. It would not be open to the State Government to contend that it had absolute property in these fishery rights and it was, therefore, entitled to settle them in any manner whatever.12. Unless therefore, the action of the State Government could he justified by reference to any rule made under S. 155 it would not avail the appellant. Reliance is accordingly placed on the provisions of R. 12 of the Fishery Rules and it is submitted that under that rule specific power is given to the State Government to settle the fishery rights otherwise than by sale.The State Government is thereby invested with the power to settle fishery rights even by individual settlements without following the auction system or the tender system. Even though this power is not vested in the State Government by express provision made in that behalf, the context of R. 12 sufficiently indicates the intention of the rule making authority.After having prescribed the procedure by way of auction sales in Rr. 1 to 11 of S. 1, a prohibition against the settlement of fishery rights otherwise than by sale is enacted in R, 12 except in the case of the State Government.No fishery it to be settled otherwise than by sale and that prohibition is general in terms but an exception is carved out in favour of the State Government in terms which are only capable of the construction that the State Government shall have the power of settling fishery rights otherwise than by sale. No limitation is placed on this power which is thus vested in the State Government and if the State Government is empowered to settle fishery rights otherwise than by sale it can do so by adopting the tender system if it thought it desirable to do so or even by entering into individual settlements if the circumstances of the case so warranted. Apart from the adoption of the tender system in place of the auction system, circumstances may conceivably arise where either by reason of the cancellation or relinquishment of fishery lease before the expiration of the period thereof and buying regard to the situation then obtaining, it may not be feasible or desirable to sell fishery rights for the unexpired portion of such a lease either by public auction or by inviting tenders and the State Government may, under there circumstances, consider it desirable to enter into individual settlement of the fishery rights so as to earn for the State as much of revenue as possible. No fetter can be placed on the discretion of the State Government in this behalf and the State Government would be the best judge of the situation and would be in a position to determine what procedure to adopt in the matter of the settlement of fishery rights otherwise than by sale. There is nothing in the provisions of S. 4 containing rules for settlement of fisheries by tender system which militates against the above position.13. We are therefore, of opinion that R. 12 specifically empowers the State Government to settle the fishery rights otherwise then by sale and there is no conflict at all between the provisions of S.16, Assam Land and Revenue Regulation, I of 1886, and R. 12 of the Fishery Rules.The decision of this appeal turns on the construction of R. 12 and we fail to understand how the question of the intra vires or the ultra vires character of R. 12 at all arises. The whole of the argument addressed before us on behalf of Respondent No. 1 is based on a misconception and cannot be sustained. The decision of this Court in State of Assam v. Keshab Prasad Singh, 1953 S. C. R. 865 = (A. I. R. 1953 S. C.309) (B) on which the learned judges of the Assam High Court apparently based their judgment in (S) A.I.R. 1956 Assam 48(A) did not touch the present controversy and it follows that that was clearly wrong and cannot be supported.14.
### Response:
1
### Explanation:
It will be seen from the above summary of the relevant rules that the normal procedure for settlement of fisheries is by holding auction sales. Power is, however, given to the State Government to introduce the tender system of settlement of fisheries in place of the auction system whenever it is considered necessary and if the Government selects any fishery or fisheries to be settled by tender system and instructs the Deputy Commissioner to lease them out for any specified period acting in exercise of that power, S. 4 prescribes the procedure for settlement of fisheries by tender system.only relevant enquiry is whether there was any rule validly enacted under S. 155 which enabled the State Government to settle the fishery otherwise than by sale by making an individual settlement thereof with Respondent No. 1 or the appellant in the manner in which it was done. There is absolutely nothing in the provisions of S.16 which would go to show what are the principles on which such rules for the acquisition of fishery rights by the public or any person have to be made nor is there anything therein to indicate any policy which has to guide the State Government in the making of such rules.The whole thing is left to the discretion of the State Government which is empowered by S.155, inter alia, to make rules relating to the granting of licenses and the farming of the right to fish in fisheries proclaimed under S.16 consistent with the Regulation. No doubt the State Government would also be bound by such rules and would not he entitled to make any settlement of fishery rights unless and until there was a rule made in that behalf under S.It would not be open to the State Government to contend that it had absolute property in these fishery rights and it was, therefore, entitled to settle them in any manner whatever.Unless therefore, the action of the State Government could he justified by reference to any rule made under S. 155 it would not avail theare therefore, of opinion that R. 12 specifically empowers the State Government to settle the fishery rights otherwise then by sale and there is no conflict at all between the provisions of S.16, Assam Land and Revenue Regulation, I of 1886, and R. 12 of the Fishery Rules.The decision of this appeal turns on the construction of R. 12 and we fail to understand how the question of the intra vires or the ultra vires character of R. 12 at all arises. The whole of the argument addressed before us on behalf of Respondent No. 1 is based on a misconception and cannot be sustained. The decision of this Court in State of Assam v. Keshab Prasad Singh, 1953 S. C. R. 865 = (A. I. R. 1953 S. C.309) (B) on which the learned judges of the Assam High Court apparently based their judgment in (S) A.I.R. 1956 Assam 48(A) did not touch the present controversy and it follows that that was clearly wrong and cannot beenough Respondent No. 1 also would have been entitled to a similar relief but there are various questions of fact involved in the determination of the question whether the fishery lease in his favour was validly cancelled by Respondent No.Respondent No. 1 moreover has disclaimed such benefits by adopting the contention that R. 12 of the fishery rights was ultra vires. We therefore do not think that Respondent No. 1 is entitled to any relief on the basis of this judgement. Respondent No. 3 the only person vitally interested in the decision of this issue will, in spite of its entry having been by the beck-door, be entitled to the benefit of this judgment, an unsought relief that it will get as a result of our decision on the main point in controversy.
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Krishnamurthi Vasudeorao Deshpande And Anr Vs. Dhruwaraj | inherited this property of Krishnabai and thus the appellants claimed under Krishnabai. Their such claim is therefore defeasible on the adoption of a son by Tungabai. The fact that Krishnabai inherited the property of her father absolutely, does not affect this question of title being defeated on the adoption of a son by Tungabai. The character of the property does not change, as suggested for the appellants, from coparcenary property to self-acquired property of Krishnabai so long as Tungabai the ,widow of the family, exists, and is capable of adopting a son, who becomes a coparcener.8. The case of an adopted sons claiming to divest the heir of a collateral, who died before the adoption took place, of the property inherited from the collateral, is different from the case of his claiming the property which originally belonged to the adoptive father but had devolved on a collateral and, after the death of the collateral, which took place before the adoption, devolved on a heir of the collateral. In the former case, the claim is to the property of the collateral, while in the latter case it is to the property of the adoptive father, which, by force of circumstances, had passed through the hands of a collateral.9. We may now consider the Full Bench Case of the Bombay High Court, Ramchandra Hanmant v. Balaji Datto, ILR (1955) Bom 837 : ( (S) AIR 1955 Born 291) (FB), which over-ruled the judgment in the instant case. The question formulated for the decision of the Full Bench was :"If on the death of a sole surviving coparcener his property has devolved upon his heir by inheritance and on his death it has vested in his own heir, would the subsequent adoption in the family of the sole surviving coparcener divest it from such heir?"The facts having a bearing on the decision of the question were as follows: Ramchandra and Balaji were brothers. Ramchandra died on October 10, 1903, and his widow Tarabai died two days later. Their son Hanmant had died during Ramchandras lifetime, leaving behind him his widow Sitabai. The Watan property of Ramchandra devolved on Balaji after the death of Tarabai. On Balajis death, it devolved on Datto, his son, who died in 1916. On his death, the property devolved upon his son Balaji. Sitabai, widow of Hanmant, adopted Ramchandra, the plaintiff, on January 21, 1945. Ramchandra thereafter instituted the suit against Balaji, son of Datto, and claimed that property which originally belonged to his adoptive family on the ground that he was entitled to recover it by virtue of his adoption which related back to the date of the death of his adoptive father.10. Chagla, C. J., delivering the judgment of the Court in the above case said, in answer to the question formulated, that the subsequent adoption in the family of the sole surviving coparcener would not divest the property, assuming that Ramchandra, the adoptive grandfather, was the sole surviving coparcener of his own branch and that on his death the property devolved upon Datto and then upon Balaji. The learned Chief Justice, in considering the question on principle, said at page 851 (of ILR Bom): (at p. 292 of AIR) :". . . and therefore it is well settled since the Privy Council decided 70 Ind App 132 : (AIR 1943 P C 196) that Dattu inherited this property subject to defeasance, the defeasance coming into operation in the event of the potential mother Sitabai adopting a son into the family, of Ramchandra."He said at page 852 (of ILR Bom) : (at pp. 292-293 of AIR) :"Balaji has succeeded to the estate of his father Dattu and what the plaintiff is really claiming is not the property of Ramchandra but the property of Dattu which Balaji has inherited as his son . . . . Therefore, really, the plaintiff would have displaced Dattu as the preferential heir to his own grandfather. But it is difficult to understand how that principle can apply when we are dealing with property in the hands of Dattus heir. It cannot be said that qua the estate of Dattu the plaintiff is an heir preferential to Balaji, and really what the plaintiff is claiming is to displace Balaji and to contend that he is the heir of Dattu."He therefore expressed the view :"Therefore, in our opinion, once the principle is accepted, as indeed it must be accepted, that the property which Dattu inherited from Ramchandra was held by him absolutely as a full owner, then it is impossible to accede to the plaintiffs contention that Balaji inherited to that property subject to certain limitations. The possibility of there being a defeasance only continued so long as Dattu was alive. When he died he left his property, which was his absolute property, to his heir and there is no reason in principle why that provision with regard to defeasance should continue after the property had been inherited by Balaji as the heir of Dattu."We may say at once that this conclusion goes against what had been said by this Court in Srinivas Krishnarao Kangos Case, 1955-1 S C R 1 : (AIR 195-1 S C 379).11. It has been overlooked that the heir of a collateral succeeding to the sole surviving coparcener inherits the property absolutely, but subject to defeasance, and that the right in the property devolves on his heir, who must consequently take that property absolutely, but still subject to defeasance, as no better title could have been inherited so long as there was the possibility of the defeasancc of the absolute title by a widow of the family of the last surviving coparcener adding a member to the coparcenary by adopting a son to her deceased husband, and in overlooking what was stated in this connection by this Court in Srinivas Krishnarao Kangos Case, 1955-1SCR 1 : (AIR 1954 S C 379), (Sic) though not as a decisions, but as a reasoning to come to a decision in that case. | 0[ds]It follows from these observations that if A is an owner of property possessing a title defeasible on adoption, not only that title but also the title of all persons claiming under him, will extinguish on the adoption.7. In the present case, Krishnabai owned the property as full owner on the death of her father Narasappagouda, according to the Hindu law in the area in which the property in suit lay. But her title was defeasible on Tungabai, widow of Bandegouda, adopting a son to her husband, Vasappa and, after him, his sons, inherited this property of Krishnabai and thus the appellants claimed under Krishnabai. Their such claim is therefore defeasible on the adoption of a son by Tungabai. The fact that Krishnabai inherited the property of her father absolutely, does not affect this question of title being defeated on the adoption of a son by Tungabai. The character of the property does not change, as suggested for the appellants, from coparcenary property to self-acquired property of Krishnabai so long as Tungabai the ,widow of the family, exists, and is capable of adopting a son, who becomes amay say at once that this conclusion goes against what had been said by this Court in Srinivas Krishnarao Kangos Case, 1955-1 S C R 1 : (AIR 195-1 S C 379).11. It has been overlooked that the heir of a collateral succeeding to the sole surviving coparcener inherits the property absolutely, but subject to defeasance, and that the right in the property devolves on his heir, who must consequently take that property absolutely, but still subject to defeasance, as no better title could have been inherited so long as there was the possibility of the defeasancc of the absolute title by a widow of the family of the last surviving coparcener adding a member to the coparcenary by adopting a son to her deceased husband, and in overlooking what was stated in this connection by this Court in Srinivas Krishnarao Kangos Case, 1955-1SCR 1 : (AIR 1954 S C 379), (Sic) though not as a decisions, but as a reasoning to come to a decision in that case. | 0 | 2,786 | 401 | ### 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:
inherited this property of Krishnabai and thus the appellants claimed under Krishnabai. Their such claim is therefore defeasible on the adoption of a son by Tungabai. The fact that Krishnabai inherited the property of her father absolutely, does not affect this question of title being defeated on the adoption of a son by Tungabai. The character of the property does not change, as suggested for the appellants, from coparcenary property to self-acquired property of Krishnabai so long as Tungabai the ,widow of the family, exists, and is capable of adopting a son, who becomes a coparcener.8. The case of an adopted sons claiming to divest the heir of a collateral, who died before the adoption took place, of the property inherited from the collateral, is different from the case of his claiming the property which originally belonged to the adoptive father but had devolved on a collateral and, after the death of the collateral, which took place before the adoption, devolved on a heir of the collateral. In the former case, the claim is to the property of the collateral, while in the latter case it is to the property of the adoptive father, which, by force of circumstances, had passed through the hands of a collateral.9. We may now consider the Full Bench Case of the Bombay High Court, Ramchandra Hanmant v. Balaji Datto, ILR (1955) Bom 837 : ( (S) AIR 1955 Born 291) (FB), which over-ruled the judgment in the instant case. The question formulated for the decision of the Full Bench was :"If on the death of a sole surviving coparcener his property has devolved upon his heir by inheritance and on his death it has vested in his own heir, would the subsequent adoption in the family of the sole surviving coparcener divest it from such heir?"The facts having a bearing on the decision of the question were as follows: Ramchandra and Balaji were brothers. Ramchandra died on October 10, 1903, and his widow Tarabai died two days later. Their son Hanmant had died during Ramchandras lifetime, leaving behind him his widow Sitabai. The Watan property of Ramchandra devolved on Balaji after the death of Tarabai. On Balajis death, it devolved on Datto, his son, who died in 1916. On his death, the property devolved upon his son Balaji. Sitabai, widow of Hanmant, adopted Ramchandra, the plaintiff, on January 21, 1945. Ramchandra thereafter instituted the suit against Balaji, son of Datto, and claimed that property which originally belonged to his adoptive family on the ground that he was entitled to recover it by virtue of his adoption which related back to the date of the death of his adoptive father.10. Chagla, C. J., delivering the judgment of the Court in the above case said, in answer to the question formulated, that the subsequent adoption in the family of the sole surviving coparcener would not divest the property, assuming that Ramchandra, the adoptive grandfather, was the sole surviving coparcener of his own branch and that on his death the property devolved upon Datto and then upon Balaji. The learned Chief Justice, in considering the question on principle, said at page 851 (of ILR Bom): (at p. 292 of AIR) :". . . and therefore it is well settled since the Privy Council decided 70 Ind App 132 : (AIR 1943 P C 196) that Dattu inherited this property subject to defeasance, the defeasance coming into operation in the event of the potential mother Sitabai adopting a son into the family, of Ramchandra."He said at page 852 (of ILR Bom) : (at pp. 292-293 of AIR) :"Balaji has succeeded to the estate of his father Dattu and what the plaintiff is really claiming is not the property of Ramchandra but the property of Dattu which Balaji has inherited as his son . . . . Therefore, really, the plaintiff would have displaced Dattu as the preferential heir to his own grandfather. But it is difficult to understand how that principle can apply when we are dealing with property in the hands of Dattus heir. It cannot be said that qua the estate of Dattu the plaintiff is an heir preferential to Balaji, and really what the plaintiff is claiming is to displace Balaji and to contend that he is the heir of Dattu."He therefore expressed the view :"Therefore, in our opinion, once the principle is accepted, as indeed it must be accepted, that the property which Dattu inherited from Ramchandra was held by him absolutely as a full owner, then it is impossible to accede to the plaintiffs contention that Balaji inherited to that property subject to certain limitations. The possibility of there being a defeasance only continued so long as Dattu was alive. When he died he left his property, which was his absolute property, to his heir and there is no reason in principle why that provision with regard to defeasance should continue after the property had been inherited by Balaji as the heir of Dattu."We may say at once that this conclusion goes against what had been said by this Court in Srinivas Krishnarao Kangos Case, 1955-1 S C R 1 : (AIR 195-1 S C 379).11. It has been overlooked that the heir of a collateral succeeding to the sole surviving coparcener inherits the property absolutely, but subject to defeasance, and that the right in the property devolves on his heir, who must consequently take that property absolutely, but still subject to defeasance, as no better title could have been inherited so long as there was the possibility of the defeasancc of the absolute title by a widow of the family of the last surviving coparcener adding a member to the coparcenary by adopting a son to her deceased husband, and in overlooking what was stated in this connection by this Court in Srinivas Krishnarao Kangos Case, 1955-1SCR 1 : (AIR 1954 S C 379), (Sic) though not as a decisions, but as a reasoning to come to a decision in that case.
### Response:
0
### Explanation:
It follows from these observations that if A is an owner of property possessing a title defeasible on adoption, not only that title but also the title of all persons claiming under him, will extinguish on the adoption.7. In the present case, Krishnabai owned the property as full owner on the death of her father Narasappagouda, according to the Hindu law in the area in which the property in suit lay. But her title was defeasible on Tungabai, widow of Bandegouda, adopting a son to her husband, Vasappa and, after him, his sons, inherited this property of Krishnabai and thus the appellants claimed under Krishnabai. Their such claim is therefore defeasible on the adoption of a son by Tungabai. The fact that Krishnabai inherited the property of her father absolutely, does not affect this question of title being defeated on the adoption of a son by Tungabai. The character of the property does not change, as suggested for the appellants, from coparcenary property to self-acquired property of Krishnabai so long as Tungabai the ,widow of the family, exists, and is capable of adopting a son, who becomes amay say at once that this conclusion goes against what had been said by this Court in Srinivas Krishnarao Kangos Case, 1955-1 S C R 1 : (AIR 195-1 S C 379).11. It has been overlooked that the heir of a collateral succeeding to the sole surviving coparcener inherits the property absolutely, but subject to defeasance, and that the right in the property devolves on his heir, who must consequently take that property absolutely, but still subject to defeasance, as no better title could have been inherited so long as there was the possibility of the defeasancc of the absolute title by a widow of the family of the last surviving coparcener adding a member to the coparcenary by adopting a son to her deceased husband, and in overlooking what was stated in this connection by this Court in Srinivas Krishnarao Kangos Case, 1955-1SCR 1 : (AIR 1954 S C 379), (Sic) though not as a decisions, but as a reasoning to come to a decision in that case.
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M/S. Yashwith Construction P.Ltd Vs. M/S.Simplex Concrete Piles India Lt.&Anr | Arbitration & Conciliation Act, 1996 for short "the Act"), praying that the Chief Justice may appoint a substitute arbitrator to resolve the disputes between the parties. The Chief Justice found that the appointment of the second arbitrator by the Managing Director, after the resignation of the first arbitrator, was valid in law since it was permissible under the contract and the right to make such an appointment was saved by Section 15(2) of the Act. The argument that Section 15(2) of the Act referred to statutory rules providing for appointment of Arbitrators and not to a contractual provision for such appointment was rejected by the learned Chief Justice. It was held by him that no occasion arose for him to appoint an arbitrator under Section 11(6) of the Act in the case. Thus, the application was dismissed leaving the parties to pursue their claims before the arbitrator appointed by the Managing Director in terms of arbitration agreement between the parties. 3. The petitioner challenged the decision of the learned Chief Justice by way of a Writ Petition in the High Court. The Division Bench noticed the decision of this Court in SBP & Co. vs. Patel Engineering Ltd. & Another [(2005) 8 SCC 618] holding that the order passed by the Chief Justice is a judicial order and no Writ Petition would lie in the High Court challenging such an order and only an appeal could be filed in the Supreme Court invoking Article 136 of the Constitution of India. But the Division Bench thought that since that decision saved appointments made on or before the date that decision was rendered by this Court, the Writ Petition filed by the petitioner would also be saved and the Writ Petition could be decided on merits. The Division Bench held that the position obtaining under Section 8(1) of the Arbitration Act of 1940 differed from that available under the present Act especially in the context of Section 15 thereof and that in terms of Section 15(2) of the Act, the Managing Director could, on the basis of the arbitration agreement, appoint another arbitrator when the originally appointed arbitrator resigned, thus attracting Section 15(1)(a) of the Act. It further held that Section 15(2) covered not only cases of appointments under statutory rules or rules framed under the Act, but it would also take in the terms of the agreement between the parties for appointment of an arbitrator and in that view, the Managing Director, in the case on hand and on the terms of the arbitration agreement, would have the right to appoint a substitute arbitrator. Thus, it was held that the learned Chief Justice was right in rejecting the application made by the petitioner. Thus, the Writ Petition was dismissed. It is this decision of the Division Bench that is sought to be challenged in this petition for special leave to appeal. 4. In our view, the learned Chief Justice and the Division Bench have rightly understood the scope of Section 15 of the Act. When the arbitrator originally appointed in terms of the arbitration agreement withdrew for health reasons, the Managing Director, as authorized originally by the arbitration agreement, promptly appointed a substitute arbitrator. It is true that in the arbitration agreement there is no specific provision authorizing the Managing Director to appoint a substitute arbitrator if the original appointment terminates or if the originally appointed arbitrator withdraws from the arbitration. But, this so called omission in the arbitration agreement is made up by the specific provision contained in Section 15(2) of the Act. The withdrawal of an arbitrator from the office for any reason is within the purview of Section 15(1)(a) of the Act. Obviously, therefore Section 15(2) would be attracted and a substitute arbitrator has to be appointed according to the rules that are applicable for the appointment of the arbitrator to be replaced. Therefore, what Section 15(2) contemplates is an appointment of the substituted arbitrator or the replacing of the arbitrator by another according to the rules that were applicable to the appointment of the original arbitrator who was being replaced. The term "rules" in Section 15(2) obviously referred to the provision for appointment, contained in the arbitration agreement or any Rules of any Institution under which the disputes were referred to arbitration. There was no failure on the part of the concerned party as per the arbitration agreement, to fulfil his obligation in terms of Section 11 of the Act so as to attract the jurisdiction of the Chief Justice under Section 11(6) of the Act for appointing a substitute arbitrator. Obviously, Section 11(6) of the Act has application only when a party or the concerned person had failed to act in terms of the arbitration agreement. When Section 15(2) says that a substitute arbitrator can be appointed according to the rules that were applicable for the appointment of the arbitrator originally, it is not confined to an appointment under any statutory rule or rule framed under the Act or under the Scheme. It only means that the appointment of the substitute arbitrator must be done according to the original agreement or provision applicable to the appointment of the arbitrator at the initial stage. We are not in a position to agree with the contrary view taken by some of the High Courts. 5. Since here, the power of the Managing Director of the respondent is saved by Section 15(2) of the Act and he has exercised that power on the terms of the arbitration agreement, we see no infirmity either in the decision of the learned Chief Justice or in that of the Division Bench. We do not think it necessary in this case to go into the question whether the Writ Petition before the High Court was maintainable on the basis that it challenged an order of the Chief Justice rendered on 4.3.2005, prior to the date of the decision in SBP & Co. vs. Patel Engineering Ltd. & Another (supra) rendered on 26.10.2005. 6. | 1[ds]In our view, the learned Chief Justice and the Division Bench have rightly understood the scope of Section 15 of the Act. When the arbitrator originally appointed in terms of the arbitration agreement withdrew for health reasons, the Managing Director, as authorized originally by the arbitration agreement, promptly appointed a substitute arbitrator. It is true that in the arbitration agreement there is no specific provision authorizing the Managing Director to appoint a substitute arbitrator if the original appointment terminates or if the originally appointed arbitrator withdraws from the arbitration. But, this so called omission in the arbitration agreement is made up by the specific provision contained in Section 15(2) of the Act. The withdrawal of an arbitrator from the office for any reason is within the purview of Section 15(1)(a) of the Act. Obviously, therefore Section 15(2) would be attracted and a substitute arbitrator has to be appointed according to the rules that are applicable for the appointment of the arbitrator to be replaced. Therefore, what Section 15(2) contemplates is an appointment of the substituted arbitrator or the replacing of the arbitrator by another according to the rules that were applicable to the appointment of the original arbitrator who was being replaced. The term "rules" in Section 15(2) obviously referred to the provision for appointment, contained in the arbitration agreement or any Rules of any Institution under which the disputes were referred to arbitration. There was no failure on the part of the concerned party as per the arbitration agreement, to fulfil his obligation in terms of Section 11 of the Act so as to attract the jurisdiction of the Chief Justice under Section 11(6) of the Act for appointing a substitute arbitrator. Obviously, Section 11(6) of the Act has application only when a party or the concerned person had failed to act in terms of the arbitration agreement. When Section 15(2) says that a substitute arbitrator can be appointed according to the rules that were applicable for the appointment of the arbitrator originally, it is not confined to an appointment under any statutory rule or rule framed under the Act or under the Scheme. It only means that the appointment of the substitute arbitrator must be done according to the original agreement or provision applicable to the appointment of the arbitrator at the initial stage. We are not in a position to agree with the contrary view taken by some of the High Courts5. Since here, the power of the Managing Director of the respondent is saved by Section 15(2) of the Act and he has exercised that power on the terms of the arbitration agreement, we see no infirmity either in the decision of the learned Chief Justice or in that of the Division Bench. We do not think it necessary in this case to go into the question whether the Writ Petition before the High Court was maintainable on the basis that it challenged an order of the Chief Justice rendered on 4.3.2005, prior to the date of the decision in SBP & Co. vs. Patel Engineering Ltd. & Another (supra) rendered on 26.10.2005 | 1 | 1,218 | 583 | ### 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:
Arbitration & Conciliation Act, 1996 for short "the Act"), praying that the Chief Justice may appoint a substitute arbitrator to resolve the disputes between the parties. The Chief Justice found that the appointment of the second arbitrator by the Managing Director, after the resignation of the first arbitrator, was valid in law since it was permissible under the contract and the right to make such an appointment was saved by Section 15(2) of the Act. The argument that Section 15(2) of the Act referred to statutory rules providing for appointment of Arbitrators and not to a contractual provision for such appointment was rejected by the learned Chief Justice. It was held by him that no occasion arose for him to appoint an arbitrator under Section 11(6) of the Act in the case. Thus, the application was dismissed leaving the parties to pursue their claims before the arbitrator appointed by the Managing Director in terms of arbitration agreement between the parties. 3. The petitioner challenged the decision of the learned Chief Justice by way of a Writ Petition in the High Court. The Division Bench noticed the decision of this Court in SBP & Co. vs. Patel Engineering Ltd. & Another [(2005) 8 SCC 618] holding that the order passed by the Chief Justice is a judicial order and no Writ Petition would lie in the High Court challenging such an order and only an appeal could be filed in the Supreme Court invoking Article 136 of the Constitution of India. But the Division Bench thought that since that decision saved appointments made on or before the date that decision was rendered by this Court, the Writ Petition filed by the petitioner would also be saved and the Writ Petition could be decided on merits. The Division Bench held that the position obtaining under Section 8(1) of the Arbitration Act of 1940 differed from that available under the present Act especially in the context of Section 15 thereof and that in terms of Section 15(2) of the Act, the Managing Director could, on the basis of the arbitration agreement, appoint another arbitrator when the originally appointed arbitrator resigned, thus attracting Section 15(1)(a) of the Act. It further held that Section 15(2) covered not only cases of appointments under statutory rules or rules framed under the Act, but it would also take in the terms of the agreement between the parties for appointment of an arbitrator and in that view, the Managing Director, in the case on hand and on the terms of the arbitration agreement, would have the right to appoint a substitute arbitrator. Thus, it was held that the learned Chief Justice was right in rejecting the application made by the petitioner. Thus, the Writ Petition was dismissed. It is this decision of the Division Bench that is sought to be challenged in this petition for special leave to appeal. 4. In our view, the learned Chief Justice and the Division Bench have rightly understood the scope of Section 15 of the Act. When the arbitrator originally appointed in terms of the arbitration agreement withdrew for health reasons, the Managing Director, as authorized originally by the arbitration agreement, promptly appointed a substitute arbitrator. It is true that in the arbitration agreement there is no specific provision authorizing the Managing Director to appoint a substitute arbitrator if the original appointment terminates or if the originally appointed arbitrator withdraws from the arbitration. But, this so called omission in the arbitration agreement is made up by the specific provision contained in Section 15(2) of the Act. The withdrawal of an arbitrator from the office for any reason is within the purview of Section 15(1)(a) of the Act. Obviously, therefore Section 15(2) would be attracted and a substitute arbitrator has to be appointed according to the rules that are applicable for the appointment of the arbitrator to be replaced. Therefore, what Section 15(2) contemplates is an appointment of the substituted arbitrator or the replacing of the arbitrator by another according to the rules that were applicable to the appointment of the original arbitrator who was being replaced. The term "rules" in Section 15(2) obviously referred to the provision for appointment, contained in the arbitration agreement or any Rules of any Institution under which the disputes were referred to arbitration. There was no failure on the part of the concerned party as per the arbitration agreement, to fulfil his obligation in terms of Section 11 of the Act so as to attract the jurisdiction of the Chief Justice under Section 11(6) of the Act for appointing a substitute arbitrator. Obviously, Section 11(6) of the Act has application only when a party or the concerned person had failed to act in terms of the arbitration agreement. When Section 15(2) says that a substitute arbitrator can be appointed according to the rules that were applicable for the appointment of the arbitrator originally, it is not confined to an appointment under any statutory rule or rule framed under the Act or under the Scheme. It only means that the appointment of the substitute arbitrator must be done according to the original agreement or provision applicable to the appointment of the arbitrator at the initial stage. We are not in a position to agree with the contrary view taken by some of the High Courts. 5. Since here, the power of the Managing Director of the respondent is saved by Section 15(2) of the Act and he has exercised that power on the terms of the arbitration agreement, we see no infirmity either in the decision of the learned Chief Justice or in that of the Division Bench. We do not think it necessary in this case to go into the question whether the Writ Petition before the High Court was maintainable on the basis that it challenged an order of the Chief Justice rendered on 4.3.2005, prior to the date of the decision in SBP & Co. vs. Patel Engineering Ltd. & Another (supra) rendered on 26.10.2005. 6.
### Response:
1
### Explanation:
In our view, the learned Chief Justice and the Division Bench have rightly understood the scope of Section 15 of the Act. When the arbitrator originally appointed in terms of the arbitration agreement withdrew for health reasons, the Managing Director, as authorized originally by the arbitration agreement, promptly appointed a substitute arbitrator. It is true that in the arbitration agreement there is no specific provision authorizing the Managing Director to appoint a substitute arbitrator if the original appointment terminates or if the originally appointed arbitrator withdraws from the arbitration. But, this so called omission in the arbitration agreement is made up by the specific provision contained in Section 15(2) of the Act. The withdrawal of an arbitrator from the office for any reason is within the purview of Section 15(1)(a) of the Act. Obviously, therefore Section 15(2) would be attracted and a substitute arbitrator has to be appointed according to the rules that are applicable for the appointment of the arbitrator to be replaced. Therefore, what Section 15(2) contemplates is an appointment of the substituted arbitrator or the replacing of the arbitrator by another according to the rules that were applicable to the appointment of the original arbitrator who was being replaced. The term "rules" in Section 15(2) obviously referred to the provision for appointment, contained in the arbitration agreement or any Rules of any Institution under which the disputes were referred to arbitration. There was no failure on the part of the concerned party as per the arbitration agreement, to fulfil his obligation in terms of Section 11 of the Act so as to attract the jurisdiction of the Chief Justice under Section 11(6) of the Act for appointing a substitute arbitrator. Obviously, Section 11(6) of the Act has application only when a party or the concerned person had failed to act in terms of the arbitration agreement. When Section 15(2) says that a substitute arbitrator can be appointed according to the rules that were applicable for the appointment of the arbitrator originally, it is not confined to an appointment under any statutory rule or rule framed under the Act or under the Scheme. It only means that the appointment of the substitute arbitrator must be done according to the original agreement or provision applicable to the appointment of the arbitrator at the initial stage. We are not in a position to agree with the contrary view taken by some of the High Courts5. Since here, the power of the Managing Director of the respondent is saved by Section 15(2) of the Act and he has exercised that power on the terms of the arbitration agreement, we see no infirmity either in the decision of the learned Chief Justice or in that of the Division Bench. We do not think it necessary in this case to go into the question whether the Writ Petition before the High Court was maintainable on the basis that it challenged an order of the Chief Justice rendered on 4.3.2005, prior to the date of the decision in SBP & Co. vs. Patel Engineering Ltd. & Another (supra) rendered on 26.10.2005
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Timblo Irmaos Limited, Margo Vs. Jorge Anibal Matos Sequeira and Another | same series of dealings between the parties, As we have already mentioned, the learned Judicial Commissioner chose to concentrate on the single word "exploitation" torn out of its context. The word "exploitation" taken by itself, could have been used to describe, confer only such general powers as may be them. I f the word negotiate had stood alone, its meaning might have been doubtful, though, when applied to a bill of exchange or ordinary promissory note, it would probably be generally understood to mean to sell or discount, not to pledge it.6. Here it does not stand alone, and, looking at the words with which it is coupled, their Lordships are of opinion that it cannot have the effect which the appellant gives to it, and, reason, dispose of cannot have that effect", Coming now to the second question, we find that the findings of fact recorded by the Judicial Commissioner are unexceptionable. Firstly, it was found that, although, under the contract, the defendants-respondents could load iron ore at any time during 24 hours, which included the night, yet, the defendants were prevented from doing so owing to the failure of the plaintiff to provide either sufficient lighting or enough winches to enable due performance of the contract. Secondly, it was admitted that the appellant never opened a Letter of Credit with the named bank by 27 January, 1954, as promised by it.7. Thirdly, the delay in loading was held to be due to the fault of the company. The Judicial Commissioner rightly concluded that the company had not discharged its own part of the contract so that it could not claim demurrage or damages. Indeed, it was found that the company did not have to pay any demurrage at all to the shippers for delayed departure, Learned Counselrelied strongly on the following terms in the contract of 23rd January, 1954:, The contention was that this created an absolute liability to pay for delay in loading irrespective of whether the company had to pay the shippers any demurrage.It was urged that the liability was upon the seller irrespective of whether such payment had to be made to the shipping company or not. We think that the demurrage could not be claimed when the delay in loading was due to the default of the respondents themselves. It is apparent that the basis upon which the agreement to pay demurrage rested was that the appellant will afford proper facilities for loading.8. When the appellant itself had committed breaches of its obligations, it is difficult to see how the respondents could be made responsiblein loading. We think that the Judicial Commissioner had rightly disallowed this part of the claim, In the result, we partly allow this appeal, set aside the finding of the Judicial Commissioner as regards the binding nature of the contract dated 5th February, 1954. We hold that this document embodied the terms of an agreement which was legally binding on both sides before us.9. The case will now go back to the Trial Court for determination of the liabilities of the p arties to each other for alleged breaches of contract except to the extent to which the findings negative the claim to demurrage, the admitted payment of Rs. 1, 13, 000/by the appellant to the defendants which will have to be taken into account. The parties will bear their own costs, Ltd, Calcutta v. Commissioner of Excess Profits Tax, West Bengal(27 I.T.R. 188.) wherein the High Court held .that when a party at whose instance the reference had been made under section 66(1) of the Indian Income tax Act, 1922 does not appear at the hearing of the reference, the High Court i s not bound to answer the question referred to it, should not do so.10. It is urged by Mr. Manchanda that the above decision has been followed by some of the other High Courts. As against that Mr. Desai on behalf of t he appellant has urged that the correctness of those decisions is open to question in view of the decision of this Court in the case of Commissioner of Income-tax, Madras v. S. Chenniappa Mudaliar(74. I.T.R 4 1.).It was held by this Court in that case that an appeal filed by the assessee before the Tribunal under section 33 of the Act should be disposed of on merits, should not be dismissed in default because of non-appearance of the appellant. The Court in this context referred to section 33(4) of the Act, particularly the word "therein" used in that sub-section. It is urged by Mr. Desai that as the Tribunal is bound to dispose of the appeal on merits even though a party is not present, likewise the High Court when a question of law is referred to it, should dispose of the reference on merits, answer the question referred to it.11. In our opinion, it is not essential to express an opinion about this aspect of the matter, because we are of the opinion that the High Court was not functus Officio in entertaining the application which had been filed on behalf of the appellant for re-hearing the reference, disposing of the matter on merits, Our attention had been invited to the decision of the Allahabad High Court in Roop Narain Ramchandra (P) Ltd. v. Commissioner of Income-tax, U.p.(84 I.T.R. 181.) wherein the High Court held that it has no power to recall an order returning a reference unanswered.stated above, we are unable to agree with the view taken by the Allahabad High Court in that decision.12. The facts brought out in the application flied on behalf of the appellant show, in our opinion, that there was sufficient cause-appearance on behalf of the appellant on the date of hearing as well as-filing of the paper books within time. It also cannot be said that there was lack of diligence on the part of the appellant in approaching of the High Court for recalling its earlier order, for disposing of the reference on merits.13. | 1[ds]In our opinion, it is not essential to express an opinion about this aspect of the matter, because we are of the opinion that the High Court was not functus Officio in entertaining the application which had been filed on behalf of the appellant for re-hearing the reference, disposing of the matter on merits, Our attention had been invited to the decision of the Allahabad High Court in Roop Narain Ramchandra (P) Ltd. v. Commissioner of Income-tax, U.p.(84 I.T.R. 181.) wherein the High Court held that it has no power to recall an order returning a reference unanswered.stated above, we are unable to agree with the view taken by the Allahabad High Court in thatfacts brought out in the application flied on behalf of the appellant show, in our opinion, that there was sufficient cause-appearance on behalf of the appellant on the date of hearing as well as-filing of the paper books within time. It also cannot be said that there was lack of diligence on the part of the appellant in approaching of the High Court for recalling its earlier order, for disposing of the reference onthe answer given by respondent No. 3 to this contention was that the omission of Explanation (iv) was prospective and not retrospective and since Explanation (iv) was in force at the date when respondent No. 3 filed her application for release, she had a vested right to obtain release of the rented premises in her favour by virtue Explanation (iv) and that vested right was not taken away by the prospective omission of Explanation (iv) and hence she was entitled to rely on it despite its omission by U.P. Act No. 28 of 1976. We have not pronounced on these rival conten- tions since we think it would be better to leave it to the District Court to decide which contention is correct. If the District Court finds that by reason of the omission of Explanation (iv) by U.P. Act No. 28 of 1976 respondent No. 3 is no .longer entitled to rely on it to sustain her claim for release of the rented premises in her favour, it will be unnecessary for the District Court to examine the further question as to whether Explanation (iv) is attracted on the facts of the present case, If, on the other hand, District Court finds that the omission of Explanation (iv) by U.P. Act No. 28 of 1976 being prospective and not retrospective, respondent No. 3 is entitled to avail of that Explanation, t he District Court will proceed to decide whether the two tenements or the .around floor constituted one single unit of accommodation so as to attract the applicability of Explanation (iv) and for this purpose, the District Court may, if it so thinks necessary, either take further evidence itself or require further evidence to be taken by the Prescribed Authority. If the District Court finds that the case is covered by Explanation (iv), there would be no question of examining comparative hardship of the appellant and respondent No. 3, and respondent No. 3 would straight away be entitled to an order of release of the rented premises in her favour. On the other hand, if the District Court comes to the conclusion that by reason of the omission of Explanation (iv) of the U.P. Act No. 28 of 1976 respondent No. 3 is not entitled to rely on it or that Explanation (iv) is not applicable on the facts of the present case, the application of respondent No. 3 would fail, since it has already been found by the District Court and we do not propose to disturb this finding that the appellant would suffer greater hardship by granting of the application than what would be suffered by respondent No. 3 if the application were to be refused. | 1 | 1,582 | 718 | ### 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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same series of dealings between the parties, As we have already mentioned, the learned Judicial Commissioner chose to concentrate on the single word "exploitation" torn out of its context. The word "exploitation" taken by itself, could have been used to describe, confer only such general powers as may be them. I f the word negotiate had stood alone, its meaning might have been doubtful, though, when applied to a bill of exchange or ordinary promissory note, it would probably be generally understood to mean to sell or discount, not to pledge it.6. Here it does not stand alone, and, looking at the words with which it is coupled, their Lordships are of opinion that it cannot have the effect which the appellant gives to it, and, reason, dispose of cannot have that effect", Coming now to the second question, we find that the findings of fact recorded by the Judicial Commissioner are unexceptionable. Firstly, it was found that, although, under the contract, the defendants-respondents could load iron ore at any time during 24 hours, which included the night, yet, the defendants were prevented from doing so owing to the failure of the plaintiff to provide either sufficient lighting or enough winches to enable due performance of the contract. Secondly, it was admitted that the appellant never opened a Letter of Credit with the named bank by 27 January, 1954, as promised by it.7. Thirdly, the delay in loading was held to be due to the fault of the company. The Judicial Commissioner rightly concluded that the company had not discharged its own part of the contract so that it could not claim demurrage or damages. Indeed, it was found that the company did not have to pay any demurrage at all to the shippers for delayed departure, Learned Counselrelied strongly on the following terms in the contract of 23rd January, 1954:, The contention was that this created an absolute liability to pay for delay in loading irrespective of whether the company had to pay the shippers any demurrage.It was urged that the liability was upon the seller irrespective of whether such payment had to be made to the shipping company or not. We think that the demurrage could not be claimed when the delay in loading was due to the default of the respondents themselves. It is apparent that the basis upon which the agreement to pay demurrage rested was that the appellant will afford proper facilities for loading.8. When the appellant itself had committed breaches of its obligations, it is difficult to see how the respondents could be made responsiblein loading. We think that the Judicial Commissioner had rightly disallowed this part of the claim, In the result, we partly allow this appeal, set aside the finding of the Judicial Commissioner as regards the binding nature of the contract dated 5th February, 1954. We hold that this document embodied the terms of an agreement which was legally binding on both sides before us.9. The case will now go back to the Trial Court for determination of the liabilities of the p arties to each other for alleged breaches of contract except to the extent to which the findings negative the claim to demurrage, the admitted payment of Rs. 1, 13, 000/by the appellant to the defendants which will have to be taken into account. The parties will bear their own costs, Ltd, Calcutta v. Commissioner of Excess Profits Tax, West Bengal(27 I.T.R. 188.) wherein the High Court held .that when a party at whose instance the reference had been made under section 66(1) of the Indian Income tax Act, 1922 does not appear at the hearing of the reference, the High Court i s not bound to answer the question referred to it, should not do so.10. It is urged by Mr. Manchanda that the above decision has been followed by some of the other High Courts. As against that Mr. Desai on behalf of t he appellant has urged that the correctness of those decisions is open to question in view of the decision of this Court in the case of Commissioner of Income-tax, Madras v. S. Chenniappa Mudaliar(74. I.T.R 4 1.).It was held by this Court in that case that an appeal filed by the assessee before the Tribunal under section 33 of the Act should be disposed of on merits, should not be dismissed in default because of non-appearance of the appellant. The Court in this context referred to section 33(4) of the Act, particularly the word "therein" used in that sub-section. It is urged by Mr. Desai that as the Tribunal is bound to dispose of the appeal on merits even though a party is not present, likewise the High Court when a question of law is referred to it, should dispose of the reference on merits, answer the question referred to it.11. In our opinion, it is not essential to express an opinion about this aspect of the matter, because we are of the opinion that the High Court was not functus Officio in entertaining the application which had been filed on behalf of the appellant for re-hearing the reference, disposing of the matter on merits, Our attention had been invited to the decision of the Allahabad High Court in Roop Narain Ramchandra (P) Ltd. v. Commissioner of Income-tax, U.p.(84 I.T.R. 181.) wherein the High Court held that it has no power to recall an order returning a reference unanswered.stated above, we are unable to agree with the view taken by the Allahabad High Court in that decision.12. The facts brought out in the application flied on behalf of the appellant show, in our opinion, that there was sufficient cause-appearance on behalf of the appellant on the date of hearing as well as-filing of the paper books within time. It also cannot be said that there was lack of diligence on the part of the appellant in approaching of the High Court for recalling its earlier order, for disposing of the reference on merits.13.
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In our opinion, it is not essential to express an opinion about this aspect of the matter, because we are of the opinion that the High Court was not functus Officio in entertaining the application which had been filed on behalf of the appellant for re-hearing the reference, disposing of the matter on merits, Our attention had been invited to the decision of the Allahabad High Court in Roop Narain Ramchandra (P) Ltd. v. Commissioner of Income-tax, U.p.(84 I.T.R. 181.) wherein the High Court held that it has no power to recall an order returning a reference unanswered.stated above, we are unable to agree with the view taken by the Allahabad High Court in thatfacts brought out in the application flied on behalf of the appellant show, in our opinion, that there was sufficient cause-appearance on behalf of the appellant on the date of hearing as well as-filing of the paper books within time. It also cannot be said that there was lack of diligence on the part of the appellant in approaching of the High Court for recalling its earlier order, for disposing of the reference onthe answer given by respondent No. 3 to this contention was that the omission of Explanation (iv) was prospective and not retrospective and since Explanation (iv) was in force at the date when respondent No. 3 filed her application for release, she had a vested right to obtain release of the rented premises in her favour by virtue Explanation (iv) and that vested right was not taken away by the prospective omission of Explanation (iv) and hence she was entitled to rely on it despite its omission by U.P. Act No. 28 of 1976. We have not pronounced on these rival conten- tions since we think it would be better to leave it to the District Court to decide which contention is correct. If the District Court finds that by reason of the omission of Explanation (iv) by U.P. Act No. 28 of 1976 respondent No. 3 is no .longer entitled to rely on it to sustain her claim for release of the rented premises in her favour, it will be unnecessary for the District Court to examine the further question as to whether Explanation (iv) is attracted on the facts of the present case, If, on the other hand, District Court finds that the omission of Explanation (iv) by U.P. Act No. 28 of 1976 being prospective and not retrospective, respondent No. 3 is entitled to avail of that Explanation, t he District Court will proceed to decide whether the two tenements or the .around floor constituted one single unit of accommodation so as to attract the applicability of Explanation (iv) and for this purpose, the District Court may, if it so thinks necessary, either take further evidence itself or require further evidence to be taken by the Prescribed Authority. If the District Court finds that the case is covered by Explanation (iv), there would be no question of examining comparative hardship of the appellant and respondent No. 3, and respondent No. 3 would straight away be entitled to an order of release of the rented premises in her favour. On the other hand, if the District Court comes to the conclusion that by reason of the omission of Explanation (iv) of the U.P. Act No. 28 of 1976 respondent No. 3 is not entitled to rely on it or that Explanation (iv) is not applicable on the facts of the present case, the application of respondent No. 3 would fail, since it has already been found by the District Court and we do not propose to disturb this finding that the appellant would suffer greater hardship by granting of the application than what would be suffered by respondent No. 3 if the application were to be refused.
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State of Tamil Nadu & Others Vs. S.K. Krishnamurthi & Others | of the schools prescribe the books in the approved list for their classes there is no assurance or a holding out by them that a particular number of books will be required. If the books that are printed are not sold the risk is that of the publishers. Nor can the schools which have prescribed the book hold the publishers responsible if they cannot at any time supply sufficient number of books to cope with the needs of the school. All that the instructions that a books prescribed should not be changed for three years imply, as the High Court rightly recognised is to avoid any hardship to the students. Students may fail and have to repeat the course the next year, or those who are promoted may not afford new books but might go in for second hand books used in the previous years. These are some of the hardships that may be sought to be avoided by requiring the books prescribed to be current for three schools years. 5. It is true that a representation can be made to a person either directly or indirectly if it was intended to be made to him when it is brought to his notice. But that is not the case here as it was in the Union of India v. Indo-Afghan Agencies Ltd., (1968) 2 SCR 366 = (AIR 1968 SC 718 ) where under a scheme to increase exports to woollen textiles, as an incentive it was provided that an exporter will be granted certificates to import raw materials of a total amount equal to 100% of the f.o.b. value of his exports. The scheme was under the Imports (Control) Order 1955 made pursuant to section 3 of the Imports and Exports (Control) Act 1947. Clause 10 of the scheme provided that the Textile Commissioner could grant an import certificate for a lesser amount if he is satisfied after holding an enquiry, that the declared value of the goods exported is higher than the real value of the goods. The Textile Commissioner collected evidence ex parte and acting upon the report of a Committee appointed by him, passed orders reducing the import entitlements of the respondents without informing them or giving them an opportunity to explain the materials on the basis of which the said action was taken. This Court held that it could not be assumed merely because the policy is general in terms and deals with the grant of licences for import of goods and related matters, that it is statutory in character. But even if it is only executive or administrative in character Courts have power in appropriate cases to compel performance of the obligations imposed by the scheme upon the Departmental authorities. On the terms of the scheme and the facts of the case, the action of the Textile Commissioner in reducing the "import entitlement" was considered to be bad and struck down. This case was later considered to be bad and struck down. This case was later considered and explained in Sankaranarayanan v. The State of Kerala, (1971) 2 SCC 361 = (AIR 1971 SC 1997 ) and in an unreported decision in Narinderchand Hemraj v. Lt. Governor, Union Territory, Himachal Pradesh, C.A. No.1313 of 1970, D/- 5-10-1971 (reported in AIR 1971 SC 2399) to both of which one of us (Hegde J.) was a party. In the former case it was pointed out that "there is no question of any representation having been made by the Government which was acted upon to their detriment by the appellants". In the later case one of us, Hegde, J., pointed out that in the Indo-Afghan Agencies case, (1968) 2 SCR 366 = (AIR 1968 SC 718 ). "This Court did not hold that the Government was not competent to change the scheme. If the scheme had statutory force, it bound the Government as much as it bound the exporters. In that event the Court was competent to compel the Government to act according to the scheme. If on the other hand the scheme contained merely administrative instructions then the Government having made the representation referred to earlier, on the basis of which the exporters had exported certain goods, the Government was estopped from going back on the representation made by it". 6. The case which is more analogous to the one before us is State of Assam v. Ajit Kumar Sharma, (1965) 1 SCR 890 = (AIR 1965 SC 1196 ) where a Constitution Bench of this Court which considered the claim of the teacher of a private College affiliated to the Gauhati University in Assam which received grants-in-aid from the State on certain conditions set out in the form of Rules held that he was not entitled to maintain a Writ Petition under Article 226 of the Constitution. In that case, Rule 7 of the Rules provided that if a teacher stood for elections to the Legislature, he should be on compulsory leave without pay from the date of the filing of his nomination till the end of the next academic session or till the termination of the term of office to which he may be elected as the case may be. The respondent who had recourse to the Rule had after obtaining permission stood as a candidate for Parliament and was defeated. Thereafter, he rejoined his post but was informed that he has been granted compulsory leave without pay till the end of the academic session. It was against this direction that he filed a Writ Petition challenging the rule as being without legal force and not binding on the Governing Body or the Respondent, which contention was negatived on the ground that the rules were merely administrative instructions not having the force of the law as statutory rules and govern matters between private colleges and the Government. In any view of the matter, the claim of the respondents that there was any representation made to them or intended to be made is not justified. | 1[ds]There is in our view no warrant for concluding that the Madras Education Rules and the Text Book Committee Rules hold out any representation or even an assurance to the publishers that the books once prescribed will not be changed nor as contended by the respondents advocate is there any justification for the assumption that these rules envisage the participation of the publishers in the scheme and as such the Government will be estopped from resiling from the representation that the period will not be alteredThe Madras Education Rules though called rules are administrative instructions for the guidance of the Department. Rule 58 which deals with the text books states that a consolidated list of text-books authorised by the Government to be used under the several subjects is published annually in the Fort St. George Gazette; that Manager of schools are at liberty to select from the latest list such books as they may deem most suitable provided that the text-book so selected shall not be changed within three years of their introduction in any of the schools except with the previous approval of the District Education Officer in the case of boys schools and the Inspectors in the case of girls schools. It further states that no books (other than books for religious instruction) not authorised by the Government shall be used in any recognised school. The Government, however, reserve to itself the right to forbid or to prescribe the use of any book or books in the recognised schools. The rules relating to Madras text-books Committee which were issued on November 26, 1965, set out the objects of the Committee, its constitution, the general grounds on which the books may be described as unsuitable, expression, printing and get-up registration of publishers, rules relating to recognised schools, fees for scrutiny of books submitted for approval of the text-books committee, etc. In Rule 27, it is provided that any book approved for use in recognised schools as text-book shall retain its approval for five years and in Rule 30 it is provided that all text-books used in recognised schools shall be selected only from the approved list of text-books issued during the year excepting books published by or on behalf of the Government. It is also provided in Rule 32 that under the powers delegated to him by the Government, the Director retains on behalf of the Government the right to prescribe text books in a particular subject for use in reconised schools even though such books have not been approved by the text book committee. A perusal of these rules show that they are in the nature of Departmental instructions and do not confer any right on the publishers. Nor are they, as held by the High Court, designed to safeguard the interests of the publishers but are conceived in public interest. The Government is at liberty to change those text books or to delete from or add to the list or even prescribe books which are not in the list. When once it is accepted that those instructions do not confer any right on nor create an interest in the publishers but are conceived in the public interest and the Government has full liberty in the matter of control over the kind of books that should be prescribed in the schools the publishers cannot say that once they are prescribed they cannot be changed within the period for which they are stated to be current. The period during which Text-Book once prescribed is to continue is more an injunction to the Managers of the schools than an assurance to the publishers that they will not be changed because that power even if it is conferred by administrative rules made under Article 162, which in our view they are not empower the managers subject to the approval of the authority concerned to change them within the period specified therein or the Government to forbid or prescribe the use of any book or books in the recognised schools. The impugned letter in this case can, therefore, be said to have been issued by the Government in exercise of the power reserved to it under those very rules4. Even dehors these provision the instructions do not extent to the publishers and kind of representation or assurance. The selection of any text-books by the Committee does not confer any rights on the publishers that their text books will be prescribed. All that the selection implies is that the books have been approved as fit and of the standard which can be prescribed for respective classes in the schools by their managers. There is no undertaking that they will be prescribed. If any of the schools prescribe the books in the approved list for their classes there is no assurance or a holding out by them that a particular number of books will be required. If the books that are printed are not sold the risk is that of the publishers. Nor can the schools which have prescribed the book hold the publishers responsible if they cannot at any time supply sufficient number of books to cope with the needs of the school. All that the instructions that a books prescribed should not be changed for three years imply, as the High Court rightly recognised is to avoid any hardship to the students. Students may fail and have to repeat the course the next year, or those who are promoted may not afford new books but might go in for second hand books used in the previous years. These are some of the hardships that may be sought to be avoided by requiring the books prescribed to be current for three schools years5. It is true that a representation can be made to a person either directly or indirectly if it was intended to be made to him when it is brought to his notice. But that is not the case here as it was in the Union of India v. Indo-Afghan Agencies Ltd., (1968) 2 SCR 366 = (AIR 1968 SC 718 ) where under a scheme to increase exports to woollen textiles, as an incentive it was provided that an exporter will be granted certificates to import raw materials of a total amount equal to 100% of the f.o.b. value of his exports. The scheme was under the Imports (Control) Order 1955 made pursuant to section 3 of the Imports and Exports (Control) Act 1947. Clause 10 of the scheme provided that the Textile Commissioner could grant an import certificate for a lesser amount if he is satisfied after holding an enquiry, that the declared value of the goods exported is higher than the real value of the goods. The Textile Commissioner collected evidence ex parte and acting upon the report of a Committee appointed by him, passed orders reducing the import entitlements of the respondents without informing them or giving them an opportunity to explain the materials on the basis of which the said action was taken. This Court held that it could not be assumed merely because the policy is general in terms and deals with the grant of licences for import of goods and related matters, that it is statutory in character. But even if it is only executive or administrative in character Courts have power in appropriate cases to compel performance of the obligations imposed by the scheme upon the Departmental authorities. On the terms of the scheme and the facts of the case, the action of the Textile Commissioner in reducing the "import entitlement" was considered to be bad and struck down. This case was later considered to be bad and struck down. This case was later considered and explained in Sankaranarayanan v. The State of Kerala, (1971) 2 SCC 361 = (AIR 1971 SC 1997 ) and in an unreported decision in Narinderchand Hemraj v. Lt. Governor, Union Territory, Himachal Pradesh, C.A. No.1313 of 1970, D/- 5-10-1971 (reported in AIR 1971 SC 2399) to both of which one of us (Hegde J.) was a party. In the former case it was pointed out that "there is no question of any representation having been made by the Government which was acted upon to their detriment by the appellants". In the later case one of us, Hegde, J., pointed out that in the Indo-Afghan Agencies case, (1968) 2 SCR 366 = (AIR 1968 SC 718 ). "This Court did not hold that the Government was not competent to change the scheme. If the scheme had statutory force, it bound the Government as much as it bound the exporters. In that event the Court was competent to compel the Government to act according to the scheme. If on the other hand the scheme contained merely administrative instructions then the Government having made the representation referred to earlier, on the basis of which the exporters had exported certain goods, the Government was estopped from going back on the representation made by it"6. The case which is more analogous to the one before us is State of Assam v. Ajit Kumar Sharma, (1965) 1 SCR 890 = (AIR 1965 SC 1196 ) where a Constitution Bench of this Court which considered the claim of the teacher of a private College affiliated to the Gauhati University in Assam which received grants-in-aid from the State on certain conditions set out in the form of Rules held that he was not entitled to maintain a Writ Petition under Article 226 of the Constitution. In that case, Rule 7 of the Rules provided that if a teacher stood for elections to the Legislature, he should be on compulsory leave without pay from the date of the filing of his nomination till the end of the next academic session or till the termination of the term of office to which he may be elected as the case may be. The respondent who had recourse to the Rule had after obtaining permission stood as a candidate for Parliament and was defeated. Thereafter, he rejoined his post but was informed that he has been granted compulsory leave without pay till the end of the academic session. It was against this direction that he filed a Writ Petition challenging the rule as being without legal force and not binding on the Governing Body or the Respondent, which contention was negatived on the ground that the rules were merely administrative instructions not having the force of the law as statutory rules and govern matters between private colleges and the Government. In any view of the matter, the claim of the respondents that there was any representation made to them or intended to be made is not justified. | 1 | 3,078 | 1,909 | ### 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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of the schools prescribe the books in the approved list for their classes there is no assurance or a holding out by them that a particular number of books will be required. If the books that are printed are not sold the risk is that of the publishers. Nor can the schools which have prescribed the book hold the publishers responsible if they cannot at any time supply sufficient number of books to cope with the needs of the school. All that the instructions that a books prescribed should not be changed for three years imply, as the High Court rightly recognised is to avoid any hardship to the students. Students may fail and have to repeat the course the next year, or those who are promoted may not afford new books but might go in for second hand books used in the previous years. These are some of the hardships that may be sought to be avoided by requiring the books prescribed to be current for three schools years. 5. It is true that a representation can be made to a person either directly or indirectly if it was intended to be made to him when it is brought to his notice. But that is not the case here as it was in the Union of India v. Indo-Afghan Agencies Ltd., (1968) 2 SCR 366 = (AIR 1968 SC 718 ) where under a scheme to increase exports to woollen textiles, as an incentive it was provided that an exporter will be granted certificates to import raw materials of a total amount equal to 100% of the f.o.b. value of his exports. The scheme was under the Imports (Control) Order 1955 made pursuant to section 3 of the Imports and Exports (Control) Act 1947. Clause 10 of the scheme provided that the Textile Commissioner could grant an import certificate for a lesser amount if he is satisfied after holding an enquiry, that the declared value of the goods exported is higher than the real value of the goods. The Textile Commissioner collected evidence ex parte and acting upon the report of a Committee appointed by him, passed orders reducing the import entitlements of the respondents without informing them or giving them an opportunity to explain the materials on the basis of which the said action was taken. This Court held that it could not be assumed merely because the policy is general in terms and deals with the grant of licences for import of goods and related matters, that it is statutory in character. But even if it is only executive or administrative in character Courts have power in appropriate cases to compel performance of the obligations imposed by the scheme upon the Departmental authorities. On the terms of the scheme and the facts of the case, the action of the Textile Commissioner in reducing the "import entitlement" was considered to be bad and struck down. This case was later considered to be bad and struck down. This case was later considered and explained in Sankaranarayanan v. The State of Kerala, (1971) 2 SCC 361 = (AIR 1971 SC 1997 ) and in an unreported decision in Narinderchand Hemraj v. Lt. Governor, Union Territory, Himachal Pradesh, C.A. No.1313 of 1970, D/- 5-10-1971 (reported in AIR 1971 SC 2399) to both of which one of us (Hegde J.) was a party. In the former case it was pointed out that "there is no question of any representation having been made by the Government which was acted upon to their detriment by the appellants". In the later case one of us, Hegde, J., pointed out that in the Indo-Afghan Agencies case, (1968) 2 SCR 366 = (AIR 1968 SC 718 ). "This Court did not hold that the Government was not competent to change the scheme. If the scheme had statutory force, it bound the Government as much as it bound the exporters. In that event the Court was competent to compel the Government to act according to the scheme. If on the other hand the scheme contained merely administrative instructions then the Government having made the representation referred to earlier, on the basis of which the exporters had exported certain goods, the Government was estopped from going back on the representation made by it". 6. The case which is more analogous to the one before us is State of Assam v. Ajit Kumar Sharma, (1965) 1 SCR 890 = (AIR 1965 SC 1196 ) where a Constitution Bench of this Court which considered the claim of the teacher of a private College affiliated to the Gauhati University in Assam which received grants-in-aid from the State on certain conditions set out in the form of Rules held that he was not entitled to maintain a Writ Petition under Article 226 of the Constitution. In that case, Rule 7 of the Rules provided that if a teacher stood for elections to the Legislature, he should be on compulsory leave without pay from the date of the filing of his nomination till the end of the next academic session or till the termination of the term of office to which he may be elected as the case may be. The respondent who had recourse to the Rule had after obtaining permission stood as a candidate for Parliament and was defeated. Thereafter, he rejoined his post but was informed that he has been granted compulsory leave without pay till the end of the academic session. It was against this direction that he filed a Writ Petition challenging the rule as being without legal force and not binding on the Governing Body or the Respondent, which contention was negatived on the ground that the rules were merely administrative instructions not having the force of the law as statutory rules and govern matters between private colleges and the Government. In any view of the matter, the claim of the respondents that there was any representation made to them or intended to be made is not justified.
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schools prescribe the books in the approved list for their classes there is no assurance or a holding out by them that a particular number of books will be required. If the books that are printed are not sold the risk is that of the publishers. Nor can the schools which have prescribed the book hold the publishers responsible if they cannot at any time supply sufficient number of books to cope with the needs of the school. All that the instructions that a books prescribed should not be changed for three years imply, as the High Court rightly recognised is to avoid any hardship to the students. Students may fail and have to repeat the course the next year, or those who are promoted may not afford new books but might go in for second hand books used in the previous years. These are some of the hardships that may be sought to be avoided by requiring the books prescribed to be current for three schools years5. It is true that a representation can be made to a person either directly or indirectly if it was intended to be made to him when it is brought to his notice. But that is not the case here as it was in the Union of India v. Indo-Afghan Agencies Ltd., (1968) 2 SCR 366 = (AIR 1968 SC 718 ) where under a scheme to increase exports to woollen textiles, as an incentive it was provided that an exporter will be granted certificates to import raw materials of a total amount equal to 100% of the f.o.b. value of his exports. The scheme was under the Imports (Control) Order 1955 made pursuant to section 3 of the Imports and Exports (Control) Act 1947. Clause 10 of the scheme provided that the Textile Commissioner could grant an import certificate for a lesser amount if he is satisfied after holding an enquiry, that the declared value of the goods exported is higher than the real value of the goods. The Textile Commissioner collected evidence ex parte and acting upon the report of a Committee appointed by him, passed orders reducing the import entitlements of the respondents without informing them or giving them an opportunity to explain the materials on the basis of which the said action was taken. This Court held that it could not be assumed merely because the policy is general in terms and deals with the grant of licences for import of goods and related matters, that it is statutory in character. But even if it is only executive or administrative in character Courts have power in appropriate cases to compel performance of the obligations imposed by the scheme upon the Departmental authorities. On the terms of the scheme and the facts of the case, the action of the Textile Commissioner in reducing the "import entitlement" was considered to be bad and struck down. This case was later considered to be bad and struck down. This case was later considered and explained in Sankaranarayanan v. The State of Kerala, (1971) 2 SCC 361 = (AIR 1971 SC 1997 ) and in an unreported decision in Narinderchand Hemraj v. Lt. Governor, Union Territory, Himachal Pradesh, C.A. No.1313 of 1970, D/- 5-10-1971 (reported in AIR 1971 SC 2399) to both of which one of us (Hegde J.) was a party. In the former case it was pointed out that "there is no question of any representation having been made by the Government which was acted upon to their detriment by the appellants". In the later case one of us, Hegde, J., pointed out that in the Indo-Afghan Agencies case, (1968) 2 SCR 366 = (AIR 1968 SC 718 ). "This Court did not hold that the Government was not competent to change the scheme. If the scheme had statutory force, it bound the Government as much as it bound the exporters. In that event the Court was competent to compel the Government to act according to the scheme. If on the other hand the scheme contained merely administrative instructions then the Government having made the representation referred to earlier, on the basis of which the exporters had exported certain goods, the Government was estopped from going back on the representation made by it"6. The case which is more analogous to the one before us is State of Assam v. Ajit Kumar Sharma, (1965) 1 SCR 890 = (AIR 1965 SC 1196 ) where a Constitution Bench of this Court which considered the claim of the teacher of a private College affiliated to the Gauhati University in Assam which received grants-in-aid from the State on certain conditions set out in the form of Rules held that he was not entitled to maintain a Writ Petition under Article 226 of the Constitution. In that case, Rule 7 of the Rules provided that if a teacher stood for elections to the Legislature, he should be on compulsory leave without pay from the date of the filing of his nomination till the end of the next academic session or till the termination of the term of office to which he may be elected as the case may be. The respondent who had recourse to the Rule had after obtaining permission stood as a candidate for Parliament and was defeated. Thereafter, he rejoined his post but was informed that he has been granted compulsory leave without pay till the end of the academic session. It was against this direction that he filed a Writ Petition challenging the rule as being without legal force and not binding on the Governing Body or the Respondent, which contention was negatived on the ground that the rules were merely administrative instructions not having the force of the law as statutory rules and govern matters between private colleges and the Government. In any view of the matter, the claim of the respondents that there was any representation made to them or intended to be made is not justified.
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Managing Director, Chalthan Vibhag Sahakarikhand Udyog, Cha Vs. Government Labour Officer & Ors | aside the Award of the Industrial Court and held that the retaining allowance falls within the definition of the expression `salary or wage given in s. 2 (21) of the Payment of Bonus Act, 1965 so as to attract the payment of bonus in the context thereof under s. 10 of the Act.3. For a proper understanding of the question involved, it is necessary to state a few facts. Chalthan Vibhag Sahakari Khand Udyog runs a seasonal factory which crushes sugarcane and produces sugar. It does not work for all the 12 months in year. There is an off-season during the year during which the factory remains closed. For this off-season during which the workmen suffer forced idleness, full wages are not paid. There are several categories of workmen employed by the management. There are unskilled workmen who are paid 10% of the basic wages and dearness allowance as retaining allowance during the off-season . There are also semi-skilled workmen who get 25% of the basic wages and dearness allowance as retaining allowance. The rest, i.e., skilled `C to supervisory class of workmen, are paid at the rate of 50% of basic wages and dearness allowance as retaining allowance during the off-season. The retaining allowance is paid to these workmen after 40 days of work in the next crushing season. Workmen in sugar factories in the State of Gujarat usually come from the State of Uttar Pradesh. During the off-season, they engage themselves in different occupation. Retaining allowance is a sort of incentive which is offered to the workmen to attract them to return to the factory after the expiry of the off-season.The retaining allowance is paid in pursuance of the Report of the Second Central Industrial Wage Board on the Sugar Industry and subsequently in implementation of the Award of the Industrial Court. Gujarat, based on the adoption of the U.P. Pattern Scales of Wages and Dearness Allowance for workmen employed in all sugar factories working by vacuum Pan Manufacturing Process. In the Management of Shri Chalthan Vighab Khand Udyog Sahakari Mandali Ltd. etc. v. B. S. Barot and Anr. etc. the Management challenged the Award on other grounds but did not question its liability to pay retaining allowance to the seasonal workmen. The payment of the retaining allowance by the Management to the workmen during the off-season is o bligatory. The Management treated the retaining allowance to be part of wages for purposes of the Employees Provident Funds Act, 1952 but not for purposes of the Payment of Bonus Act, 1965.4. The obligation to pay bonus to the workmen is created by s. 10 of the Act. Under s. 8 thereof, every employee is eligible for payment of bonus. The question is whether retaining allowance should be regarded as remuneration or wages for purposes of computation of bonus. The decision whether the retaining allowance forms part of `salary or wage must turn on the construction of the definition of that expression contained in s. 2(21) of the Act which, in so far as it is relevant, reads:2(1). "salary or wage" means all remuneration (other than remuneration in respect of overtime work) capable of being expressed in terms of money which would, if the terms of employment, express or implied, were fulfilled, be payable to any employee in respect of his employment or of work done in such employment and includes dearness allowance (that is to say, all cash payments, by whatever name called, paid to an employee on account of a rise in the cost of living), but does not include-(i) any other allowance which the employee is for the time being entitled to;xx xx xx5. There can be no doubt that the retaining allowance paid to the workmen during the off-season falls within the substantive part of the definition of the expression `salary or wage. It undoubtedly is remuneration which would, if the terms of employment, express or implied, were fulfilled, be payable to any employee in respect of his employment. The retaining allowance is a remuneration on a lower scale which is paid to the workmen by the management during the off- season for their forced idleness. The payment of such allowance by the management to its workmen duri ng the off- season when there is no work and when the factory is not working, is indicative of the fact that it wants to retain their services for the next crushing season. The very fact that retaining allowance is paid to the workmen clearly shows that their services are retained and, therefore, the jural relationship of employer and the employee continues. It is true that a workman may not return to work and may take up some other job or employment. In that event, he forfeits the right of payment of the retaining allowance. But when the workmen returns to work when the next crushing season starts, the payment of retaining allowance during the off-season, partakes the nature of basic wage on a diminished scale. The definition of the expression salary or wage given in s. 2(21) of the Act is wide enough to cover the payment of retaining allowance to the workmen. It is nothing but remuneration correlated to service and it would be a misnomer to call it an allowance. The retaining allowance does not fall within the purview of clause (i) of the exclusionary clause of s. 2(21), but comes within the substantive part of the definition of salary or wage in s. 2(21) of the Act. The retaining allowance cannot be construed to be any other allowance which the employee is, for the time being, entitled. The High Court was, therefore, justified in holding that the retaining allowance paid to the seasonal employees was a part of their salary or wage within the meaning of s. 2(21) of the Act and, therefore, must be taken into account for the purpose of calculation of bonus payable under the Payment of Bonus Act, 1965.For these reasons, the judgment of the High Court is upheld.6. | 0[ds]There can be no doubt that the retaining allowance paid to the workmen during the off-season falls within the substantive part of the definition of the expression `salary or wage. It undoubtedly is remuneration which would, if the terms of employment, express or implied, were fulfilled, be payable to any employee in respect of his employment. The retaining allowance is a remuneration on a lower scale which is paid to the workmen by the management during the off- season for their forced idleness. The payment of such allowance by the management to its workmen duri ng the off- season when there is no work and when the factory is not working, is indicative of the fact that it wants to retain their services for the next crushing season. The very fact that retaining allowance is paid to the workmen clearly shows that their services are retained and, therefore, the jural relationship of employer and the employee continues. It is true that a workman may not return to work and may take up some other job or employment. In that event, he forfeits the right of payment of the retaining allowance. But when the workmen returns to work when the next crushing season starts, the payment of retaining allowance during the off-season, partakes the nature of basic wage on a diminished scale. The definition of the expression salary or wage given in s. 2(21) of the Act is wide enough to cover the payment of retaining allowance to the workmen. It is nothing but remuneration correlated to service and it would be a misnomer to call it an allowance. The retaining allowance does not fall within the purview of clause (i) of the exclusionary clause of s. 2(21), but comes within the substantive part of the definition of salary or wage in s. 2(21) of the Act. The retaining allowance cannot be construed to be any other allowance which the employee is, for the time being, entitled. The High Court was, therefore, justified in holding that the retaining allowance paid to the seasonal employees was a part of their salary or wage within the meaning of s. 2(21) of the Act and, therefore, must be taken into account for the purpose of calculation of bonus payable underthe Payment of Bonus Act,these reasons, the judgment of the High Court is upheld. | 0 | 1,262 | 442 | ### Instruction:
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aside the Award of the Industrial Court and held that the retaining allowance falls within the definition of the expression `salary or wage given in s. 2 (21) of the Payment of Bonus Act, 1965 so as to attract the payment of bonus in the context thereof under s. 10 of the Act.3. For a proper understanding of the question involved, it is necessary to state a few facts. Chalthan Vibhag Sahakari Khand Udyog runs a seasonal factory which crushes sugarcane and produces sugar. It does not work for all the 12 months in year. There is an off-season during the year during which the factory remains closed. For this off-season during which the workmen suffer forced idleness, full wages are not paid. There are several categories of workmen employed by the management. There are unskilled workmen who are paid 10% of the basic wages and dearness allowance as retaining allowance during the off-season . There are also semi-skilled workmen who get 25% of the basic wages and dearness allowance as retaining allowance. The rest, i.e., skilled `C to supervisory class of workmen, are paid at the rate of 50% of basic wages and dearness allowance as retaining allowance during the off-season. The retaining allowance is paid to these workmen after 40 days of work in the next crushing season. Workmen in sugar factories in the State of Gujarat usually come from the State of Uttar Pradesh. During the off-season, they engage themselves in different occupation. Retaining allowance is a sort of incentive which is offered to the workmen to attract them to return to the factory after the expiry of the off-season.The retaining allowance is paid in pursuance of the Report of the Second Central Industrial Wage Board on the Sugar Industry and subsequently in implementation of the Award of the Industrial Court. Gujarat, based on the adoption of the U.P. Pattern Scales of Wages and Dearness Allowance for workmen employed in all sugar factories working by vacuum Pan Manufacturing Process. In the Management of Shri Chalthan Vighab Khand Udyog Sahakari Mandali Ltd. etc. v. B. S. Barot and Anr. etc. the Management challenged the Award on other grounds but did not question its liability to pay retaining allowance to the seasonal workmen. The payment of the retaining allowance by the Management to the workmen during the off-season is o bligatory. The Management treated the retaining allowance to be part of wages for purposes of the Employees Provident Funds Act, 1952 but not for purposes of the Payment of Bonus Act, 1965.4. The obligation to pay bonus to the workmen is created by s. 10 of the Act. Under s. 8 thereof, every employee is eligible for payment of bonus. The question is whether retaining allowance should be regarded as remuneration or wages for purposes of computation of bonus. The decision whether the retaining allowance forms part of `salary or wage must turn on the construction of the definition of that expression contained in s. 2(21) of the Act which, in so far as it is relevant, reads:2(1). "salary or wage" means all remuneration (other than remuneration in respect of overtime work) capable of being expressed in terms of money which would, if the terms of employment, express or implied, were fulfilled, be payable to any employee in respect of his employment or of work done in such employment and includes dearness allowance (that is to say, all cash payments, by whatever name called, paid to an employee on account of a rise in the cost of living), but does not include-(i) any other allowance which the employee is for the time being entitled to;xx xx xx5. There can be no doubt that the retaining allowance paid to the workmen during the off-season falls within the substantive part of the definition of the expression `salary or wage. It undoubtedly is remuneration which would, if the terms of employment, express or implied, were fulfilled, be payable to any employee in respect of his employment. The retaining allowance is a remuneration on a lower scale which is paid to the workmen by the management during the off- season for their forced idleness. The payment of such allowance by the management to its workmen duri ng the off- season when there is no work and when the factory is not working, is indicative of the fact that it wants to retain their services for the next crushing season. The very fact that retaining allowance is paid to the workmen clearly shows that their services are retained and, therefore, the jural relationship of employer and the employee continues. It is true that a workman may not return to work and may take up some other job or employment. In that event, he forfeits the right of payment of the retaining allowance. But when the workmen returns to work when the next crushing season starts, the payment of retaining allowance during the off-season, partakes the nature of basic wage on a diminished scale. The definition of the expression salary or wage given in s. 2(21) of the Act is wide enough to cover the payment of retaining allowance to the workmen. It is nothing but remuneration correlated to service and it would be a misnomer to call it an allowance. The retaining allowance does not fall within the purview of clause (i) of the exclusionary clause of s. 2(21), but comes within the substantive part of the definition of salary or wage in s. 2(21) of the Act. The retaining allowance cannot be construed to be any other allowance which the employee is, for the time being, entitled. The High Court was, therefore, justified in holding that the retaining allowance paid to the seasonal employees was a part of their salary or wage within the meaning of s. 2(21) of the Act and, therefore, must be taken into account for the purpose of calculation of bonus payable under the Payment of Bonus Act, 1965.For these reasons, the judgment of the High Court is upheld.6.
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There can be no doubt that the retaining allowance paid to the workmen during the off-season falls within the substantive part of the definition of the expression `salary or wage. It undoubtedly is remuneration which would, if the terms of employment, express or implied, were fulfilled, be payable to any employee in respect of his employment. The retaining allowance is a remuneration on a lower scale which is paid to the workmen by the management during the off- season for their forced idleness. The payment of such allowance by the management to its workmen duri ng the off- season when there is no work and when the factory is not working, is indicative of the fact that it wants to retain their services for the next crushing season. The very fact that retaining allowance is paid to the workmen clearly shows that their services are retained and, therefore, the jural relationship of employer and the employee continues. It is true that a workman may not return to work and may take up some other job or employment. In that event, he forfeits the right of payment of the retaining allowance. But when the workmen returns to work when the next crushing season starts, the payment of retaining allowance during the off-season, partakes the nature of basic wage on a diminished scale. The definition of the expression salary or wage given in s. 2(21) of the Act is wide enough to cover the payment of retaining allowance to the workmen. It is nothing but remuneration correlated to service and it would be a misnomer to call it an allowance. The retaining allowance does not fall within the purview of clause (i) of the exclusionary clause of s. 2(21), but comes within the substantive part of the definition of salary or wage in s. 2(21) of the Act. The retaining allowance cannot be construed to be any other allowance which the employee is, for the time being, entitled. The High Court was, therefore, justified in holding that the retaining allowance paid to the seasonal employees was a part of their salary or wage within the meaning of s. 2(21) of the Act and, therefore, must be taken into account for the purpose of calculation of bonus payable underthe Payment of Bonus Act,these reasons, the judgment of the High Court is upheld.
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Balai Chandra Hazra Vs. Shewdhari Jadav | produce his evidence and had the benefit of. appreciation of evidence by a Bench of two judges of the High Court and that it would be paying undue and undeserved respect to the rules of procedure to remand the matter at this stage. Once the amendment is allowed, the basic approach to the suit would undergo a change. Sub-section (3A) of s. 13 bars a suit for eviction on any of the grounds mention ed in clauses (f) and (ff) of sub-s. (1) of s. 13 for a period of three years since the acquisition of interest by landlord in the premises. The suit should, therefore, have been filed three years after the purchase of property by the respondent. The respondent would have been then required to show as to whether he required the premises and whether he had other reasonably suitable accommodation. The enquiry would have been related to the time when the suit could have been competently instituted. After focusing attention on this point, the trial court would appreciate evidence, and record findings of fact which can be reexamined by the first appellate court being the final court of facts. This very opportunity was denied to, the appellant by the Bench arrogating the jurisdiction to itself to record evidence and to proceed to appreciate the same and reach conclusions of fact which become final. Therefore, considerable prejudice was caused to the appellant by the procedure followed by the court and this Court will be amply justified in interfering with the same. Ile remand, there fore, is inevitable.Before concluding the judgment, we must advert to one contention raised by Mr. De for the respondent. It was urged that the appellant tenant leaving failed to take advantage of s. 17E introduced-by the West Bengal Premises Tenancy Amendment (Complete) Act, 1970, it is not open to him to challenge the decree of eviction passed against him. By s. 17E power was conferred upon the court to set aside certain decrees passed in suits brought by transferee landlords within three years of the date of transfer. In fast this was the necessary corollary of the introduction of sub-s . (3A) in s. 13 and making it retroactive. There may be tenants against whom decree- for eviction was made at the instance of transferee landlords whose suits would be otherwise incompetent in view of sub-s. (3A.) of s. 13. Now, it may be th at even though the decree for eviction was passed by the Court, the tenant may have continued in possession because some proceedings may be pending or for some other reason. In such a situation, upon an application made by the tenant within a period of 60 days, from the date of commencement of the Amending Act, the Court was required to set aside the decree for eviction. When appeal is pending it would Pe open to the tenant to raise the contention that the suit has become incompetent, but where the appeal is not pending or an execution application is pending and the tenant is still not physically evicted, it would be open to him to take advantage of the provisions contained in s. 17E. The present appellant appears to have made an application purporting to be under S. 17E on 25th April 1970 in the Court of Additional Munsif at Sealdah. On this application notice was ordered to be issued to the other side. Notice of the application appears to have been refused by the respondent looking to the order sheet of the learned Munsif dated 9th September 1970. This was treated as proper service and the present appellant was directed to take steps to produce certain unpunched court-fee stamps. The appellant appears to have failed to take necessary steps and the application was rejected for want of prosecution. It was contended that once the appellant applied under S. 17E for setting aside the decree of eviction, the decree has become binding and it is not open to him to question the correctness of the decree. There is no merit- in this connection because the appeal in which the decree was questioned was still pending. The provision contained in S. 17E provides an additional remedy covering classes of cases of tenants against whom decree for eviction was made but there was no pending appeal against the decree. If the submission of Mr. De is accepted, the provisions contained in S. 17E would be rendered nugatory. We specifically asked Mr. De a question as to what would be the position where a decree for eviction is made on two grounds, one under s. 13(1) (f) and the other under other provisions of s. 13 and the appeal of the tenant is pending. Would the appeal become incompetent if the-.tenant does not apply under s. 17E ? If the tenant applies under s. 17E he can get relief on the only ground that the decree was on the ground mentioned in clause (f) of sub-s. (1) of s. 13 and not the other grounds because relief was sought to be granted by the provisions contained in s. 17E to those tenants against whom decree for eviction was made under s. 13(1) (f). Would the appeal in such a situation become incompetent in part and remain competent for the other part ? Therefore, it could not be said that once a specific remedy under s. 17E is provided for the benefit of tenants under a decree for eviction on the ground mentioned in s. 13(1) (f), that is the only way and no other in which he could get relief. If so, his appeal would become incompetent. Remedy under s. 17E is an additional remedy. More particularly it appears for the benefit of those tenants against whom decree for eviction was made under s. 13 (1) (f) and appeal by whom was not pending so that they could protect themselves against eviction by landlords whose suits had become incompetent in view of the provisions contained in sub-s. (3A) of s. 13.10. | 1[ds]A very narrow, literal and verbal interpretation of grounds Nos. and 5 may prima facie indicate that the question in terms now raised would not be covered by ground either 2 or 5.But it would not be proper to put tomorrow an interpretation on the language employed in grounds nos. 2 and 5. When leave is limited to certain grounds it would no the appropriate to put a very narrow and grammatical construction of the grounds as if we were construing a statute or some rule, regulation or order of a public authority. More often it is our experience while hearing applications for special leave that grounds set out in special leave application are overlapping and fairly often repeated, and even occasionally vague. Therefore, as far as possible, the grounds should not be very strictly construed or should not be construed in such a manner as to make the special leave grant-ed under Article. 136 self-defeating . Attempt of the Court must be to find out what was the grievance or contention that was being put, forth before the Court which appealed to the Court in granting special leave under Article 136. Article 136 confers power on this Court in its discretion to grant special leave from any judgment, decree, determination, sentence or order in any case or matter, passed or made by any court or tribunal in the territory of India. Ordinarily once special leave is granted it is against the judgment, decree, etc. However, by practice this Court sometimes limits the leave to certain specific: points. If the leave is limited to specific points, obviously the whole case is not open before the Court hearing the appeal. In Nafe Singh &Anr. v. State of Haryana, ([1971] 3 S.C.C. 934.) this Court declined to examine the question whether on evidence the case was proved to the satisfaction of the Court, because special leave was limited to the question of sentence. Similarly, in Jagdev Singh &Anr. v. State of Punjab, (A.I.R. 1973 S.C. 2427.) leave was limited to the applicability of the Probation of Offienders Act and accordingly this Court did not permit enlargement of the leave observing that the scope of the leave was confined to the limitations specified in the order granting special leave and will not be enlarged for considering the correctness of the conviction for the particular offence. It was, however, urged that where a certificate is granted by the high Court under Article 133 specifying the question of law in respect of which the certificate is granted, this Court did not limit the scope of the appeal to the terms of the certificate. In Addagada Raghavamma &Anr. v. Addagada Chenchamma &Anr.([1964] 2 S.C.R. 933.), while negativing a preliminary objections to the effect that the certificate granted by the High Court under Article 133(1) must govern the scope of the appeal to the Supreme Court for otherwise the said certificate would become otiose , the Court held that the terms of the certificate did not circumscribe the scope of the appeal and once a proper certificate is granted the Supreme Court undoubtedly has power as a court of appeal to, consider the correctness of the decision appealed against from every stand point whether of questions of fact or law. It was held that if the certificate is good, the provisions of Article 133 did not confine the scope of the appeal to the certificate. This decision cannot help the appellant because when a certificate is granted under Article 133 (1) as. it stood prior to the Constitution (Thirtieth Amendment) Act, 1972, an appeal lay to the Supreme Court from any judgment, decree or final order, if the High Court certified the case falling under clauses (a), (b) or (c). Once a certificate is granted this Court undoubtedly has the power as a Court of Appeal to consider the correctness of the decision appealed against from every standpoint whether on questions of f act or law. It may in its wisdom not interfere with the concurrent findings of fact but there is no bar to its jurisdiction from interfering with the same. But when an appeal is preferred under Article 136 and the leave is limited to the specific grounds, the scope of appeal cannot be enlarged so as to extend beyond what is permissible to be urged in support of the grounds to which the leave is limited. Undoubtedly, therefore, the scope of the appeal would be limited to the grounds in respect of which the leave is granted, but having said this, it must be made distinctly clear that the grounds must be broadly construed to ascertain the real question raised therein and not in it narrow or pedantic manner by literal interpretation of the language used. Again, it must be borne in mind that, although, an order of this Court confining special leave under article 136 to certain point s would imply a rejection of it so far as other points are concerned, yet, this Court as a constitutional power under article 137 of reviewing its own order. This power may, in very exceptional cases, consistently with, rules made under article 145 of the Constitution, be so exercised, in the interests of justice, as to expand the leave itself subject to due notice to the respondents concerned that fair opportunity to meet the results of an extension of grounds of appeal.,The appellant tenant was substantially contending that in view of the introduction of sub-section (3A) of s. 13, the suit when instituted was incompetent and that on a proper construction of s. 17E introduced in the parent Act by s. 4 of the West Ben gal Premises Tenancy (Complete) Act, 1970, the decree would be unenforceable. The contention was that by amendment of pleading a suit when instituted was incompetent, should not have been rendered competent. From that springs the question ab out the courts jurisdiction to deal with the suit subsequent to amendment of pleadings. If it is one compact ground it can be said that the contention raised herein, if not explicit, would certainly be implicit in the grounds limited to which special leave was granted and, therefore, we cannot refuse to entertainwas lastly urged that ultimately whether the High Court should appreciate the evidence and record findings of fact or remand it to, the trial Court is a matter within the discretion of the High Court and that if the High Court has exercised the discretion one way, this Court should not interfere with the same. It was further said that rules of procedure are not made for the, purpose of hindering justice but for advancing substantial justice. It was, further said that the appellant tenant was given full opportunity to produce his evidence and had the benefit of. appreciation of evidence by a Bench of two judges of the High Court and that it would be paying undue and undeserved respect to the rules of procedure to remand the matter at this stage. Once the amendment is allowed, the basic approach to the suit would undergo a change. Sub-section (3A) of s. 13 bars a suit for eviction on any of the grounds mention ed in clauses (f) and (ff) of sub-s. (1) of s. 13 for a period of three years since the acquisition of interest by landlord in the premises. The suit should, therefore, have been filed three years after the purchase of property by the respondent. The respondent would have been then required to show as to whether he required the premises and whether he had other reasonably suitable accommodation. The enquiry would have been related to the time when the suit could have been competently instituted. After focusing attention on this point, the trial court would appreciate evidence, and record findings of fact which can be reexamined by the first appellate court being the final court of facts. This very opportunity was denied to, the appellant by the Bench arrogating the jurisdiction to itself to record evidence and to proceed to appreciate the same and reach conclusions of fact which become final. Therefore, considerable prejudice was caused to the appellant by the procedure followed by the court and this Court will be amply justified in interfering with the same. Ile remand, there fore, is inevitable.Before concluding the judgment, we must advert to one contention raised by Mr. De for the respondent. It was urged that the appellant tenant leaving failed to take advantage of s. 17E introduced-by the West Bengal Premises Tenancy Amendment (Complete) Act, 1970, it is not open to him to challenge the decree of eviction passed against him. By s. 17E power was conferred upon the court to set aside certain decrees passed in suits brought by transferee landlords within three years of the date of transfer. In fast this was the necessary corollary of the introduction of sub-s . (3A) in s. 13 and making it retroactive. There may be tenants against whom decree- for eviction was made at the instance of transferee landlords whose suits would be otherwise incompetent in view of sub-s. (3A.) of s. 13. Now, it may be th at even though the decree for eviction was passed by the Court, the tenant may have continued in possession because some proceedings may be pending or for some other reason. In such a situation, upon an application made by the tenant within a period of 60 days, from the date of commencement of the Amending Act, the Court was required to set aside the decree for eviction. When appeal is pending it would Pe open to the tenant to raise the contention that the suit has become incompetent, but where the appeal is not pending or an execution application is pending and the tenant is still not physically evicted, it would be open to him to take advantage of the provisions contained in s. 17E. The present appellant appears to have made an application purporting to be under S. 17E on 25th April 1970 in the Court of Additional Munsif at Sealdah. On this application notice was ordered to be issued to the other side. Notice of the application appears to have been refused by the respondent looking to the order sheet of the learned Munsif dated 9th September 1970. This was treated as proper service and the present appellant was directed to take steps to produce certain unpunched court-fee stamps. The appellant appears to have failed to take necessary steps and the application was rejected for want of prosecution. It was contended that once the appellant applied under S. 17E for setting aside the decree of eviction, the decree has become binding and it is not open to him to question the correctness of the decree. There is no merit- in this connection because the appeal in which the decree was questioned was still pending. The provision contained in S. 17E provides an additional remedy covering classes of cases of tenants against whom decree for eviction was made but there was no pending appeal against the decree. If the submission of Mr. De is accepted, the provisions contained in S. 17E would be rendered nugatory. We specifically asked Mr. De a question as to what would be the position where a decree for eviction is made on two grounds, one under s. 13(1) (f) and the other under other provisions of s. 13 and the appeal of the tenant is pending. Would the appeal become incompetent if the-.tenant does not apply under s. 17E ? If the tenant applies under s. 17E he can get relief on the only ground that the decree was on the ground mentioned in clause (f) of sub-s. (1) of s. 13 and not the other grounds because relief was sought to be granted by the provisions contained in s. 17E to those tenants against whom decree for eviction was made under s. 13(1) (f). Would the appeal in such a situation become incompetent in part and remain competent for the other part ? Therefore, it could not be said that once a specific remedy under s. 17E is provided for the benefit of tenants under a decree for eviction on the ground mentioned in s. 13(1) (f), that is the only way and no other in which he could get relief. If so, his appeal would become incompetent. Remedy under s. 17E is an additional remedy. More particularly it appears for the benefit of those tenants against whom decree for eviction was made under s. 13 (1) (f) and appeal by whom was not pending so that they could protect themselves against eviction by landlords whose suits had become incompetent in view of the provisions contained in sub-s. (3A) of s. 13. | 1 | 6,186 | 2,357 | ### Instruction:
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produce his evidence and had the benefit of. appreciation of evidence by a Bench of two judges of the High Court and that it would be paying undue and undeserved respect to the rules of procedure to remand the matter at this stage. Once the amendment is allowed, the basic approach to the suit would undergo a change. Sub-section (3A) of s. 13 bars a suit for eviction on any of the grounds mention ed in clauses (f) and (ff) of sub-s. (1) of s. 13 for a period of three years since the acquisition of interest by landlord in the premises. The suit should, therefore, have been filed three years after the purchase of property by the respondent. The respondent would have been then required to show as to whether he required the premises and whether he had other reasonably suitable accommodation. The enquiry would have been related to the time when the suit could have been competently instituted. After focusing attention on this point, the trial court would appreciate evidence, and record findings of fact which can be reexamined by the first appellate court being the final court of facts. This very opportunity was denied to, the appellant by the Bench arrogating the jurisdiction to itself to record evidence and to proceed to appreciate the same and reach conclusions of fact which become final. Therefore, considerable prejudice was caused to the appellant by the procedure followed by the court and this Court will be amply justified in interfering with the same. Ile remand, there fore, is inevitable.Before concluding the judgment, we must advert to one contention raised by Mr. De for the respondent. It was urged that the appellant tenant leaving failed to take advantage of s. 17E introduced-by the West Bengal Premises Tenancy Amendment (Complete) Act, 1970, it is not open to him to challenge the decree of eviction passed against him. By s. 17E power was conferred upon the court to set aside certain decrees passed in suits brought by transferee landlords within three years of the date of transfer. In fast this was the necessary corollary of the introduction of sub-s . (3A) in s. 13 and making it retroactive. There may be tenants against whom decree- for eviction was made at the instance of transferee landlords whose suits would be otherwise incompetent in view of sub-s. (3A.) of s. 13. Now, it may be th at even though the decree for eviction was passed by the Court, the tenant may have continued in possession because some proceedings may be pending or for some other reason. In such a situation, upon an application made by the tenant within a period of 60 days, from the date of commencement of the Amending Act, the Court was required to set aside the decree for eviction. When appeal is pending it would Pe open to the tenant to raise the contention that the suit has become incompetent, but where the appeal is not pending or an execution application is pending and the tenant is still not physically evicted, it would be open to him to take advantage of the provisions contained in s. 17E. The present appellant appears to have made an application purporting to be under S. 17E on 25th April 1970 in the Court of Additional Munsif at Sealdah. On this application notice was ordered to be issued to the other side. Notice of the application appears to have been refused by the respondent looking to the order sheet of the learned Munsif dated 9th September 1970. This was treated as proper service and the present appellant was directed to take steps to produce certain unpunched court-fee stamps. The appellant appears to have failed to take necessary steps and the application was rejected for want of prosecution. It was contended that once the appellant applied under S. 17E for setting aside the decree of eviction, the decree has become binding and it is not open to him to question the correctness of the decree. There is no merit- in this connection because the appeal in which the decree was questioned was still pending. The provision contained in S. 17E provides an additional remedy covering classes of cases of tenants against whom decree for eviction was made but there was no pending appeal against the decree. If the submission of Mr. De is accepted, the provisions contained in S. 17E would be rendered nugatory. We specifically asked Mr. De a question as to what would be the position where a decree for eviction is made on two grounds, one under s. 13(1) (f) and the other under other provisions of s. 13 and the appeal of the tenant is pending. Would the appeal become incompetent if the-.tenant does not apply under s. 17E ? If the tenant applies under s. 17E he can get relief on the only ground that the decree was on the ground mentioned in clause (f) of sub-s. (1) of s. 13 and not the other grounds because relief was sought to be granted by the provisions contained in s. 17E to those tenants against whom decree for eviction was made under s. 13(1) (f). Would the appeal in such a situation become incompetent in part and remain competent for the other part ? Therefore, it could not be said that once a specific remedy under s. 17E is provided for the benefit of tenants under a decree for eviction on the ground mentioned in s. 13(1) (f), that is the only way and no other in which he could get relief. If so, his appeal would become incompetent. Remedy under s. 17E is an additional remedy. More particularly it appears for the benefit of those tenants against whom decree for eviction was made under s. 13 (1) (f) and appeal by whom was not pending so that they could protect themselves against eviction by landlords whose suits had become incompetent in view of the provisions contained in sub-s. (3A) of s. 13.10.
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1
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produce his evidence and had the benefit of. appreciation of evidence by a Bench of two judges of the High Court and that it would be paying undue and undeserved respect to the rules of procedure to remand the matter at this stage. Once the amendment is allowed, the basic approach to the suit would undergo a change. Sub-section (3A) of s. 13 bars a suit for eviction on any of the grounds mention ed in clauses (f) and (ff) of sub-s. (1) of s. 13 for a period of three years since the acquisition of interest by landlord in the premises. The suit should, therefore, have been filed three years after the purchase of property by the respondent. The respondent would have been then required to show as to whether he required the premises and whether he had other reasonably suitable accommodation. The enquiry would have been related to the time when the suit could have been competently instituted. After focusing attention on this point, the trial court would appreciate evidence, and record findings of fact which can be reexamined by the first appellate court being the final court of facts. This very opportunity was denied to, the appellant by the Bench arrogating the jurisdiction to itself to record evidence and to proceed to appreciate the same and reach conclusions of fact which become final. Therefore, considerable prejudice was caused to the appellant by the procedure followed by the court and this Court will be amply justified in interfering with the same. Ile remand, there fore, is inevitable.Before concluding the judgment, we must advert to one contention raised by Mr. De for the respondent. It was urged that the appellant tenant leaving failed to take advantage of s. 17E introduced-by the West Bengal Premises Tenancy Amendment (Complete) Act, 1970, it is not open to him to challenge the decree of eviction passed against him. By s. 17E power was conferred upon the court to set aside certain decrees passed in suits brought by transferee landlords within three years of the date of transfer. In fast this was the necessary corollary of the introduction of sub-s . (3A) in s. 13 and making it retroactive. There may be tenants against whom decree- for eviction was made at the instance of transferee landlords whose suits would be otherwise incompetent in view of sub-s. (3A.) of s. 13. Now, it may be th at even though the decree for eviction was passed by the Court, the tenant may have continued in possession because some proceedings may be pending or for some other reason. In such a situation, upon an application made by the tenant within a period of 60 days, from the date of commencement of the Amending Act, the Court was required to set aside the decree for eviction. When appeal is pending it would Pe open to the tenant to raise the contention that the suit has become incompetent, but where the appeal is not pending or an execution application is pending and the tenant is still not physically evicted, it would be open to him to take advantage of the provisions contained in s. 17E. The present appellant appears to have made an application purporting to be under S. 17E on 25th April 1970 in the Court of Additional Munsif at Sealdah. On this application notice was ordered to be issued to the other side. Notice of the application appears to have been refused by the respondent looking to the order sheet of the learned Munsif dated 9th September 1970. This was treated as proper service and the present appellant was directed to take steps to produce certain unpunched court-fee stamps. The appellant appears to have failed to take necessary steps and the application was rejected for want of prosecution. It was contended that once the appellant applied under S. 17E for setting aside the decree of eviction, the decree has become binding and it is not open to him to question the correctness of the decree. There is no merit- in this connection because the appeal in which the decree was questioned was still pending. The provision contained in S. 17E provides an additional remedy covering classes of cases of tenants against whom decree for eviction was made but there was no pending appeal against the decree. If the submission of Mr. De is accepted, the provisions contained in S. 17E would be rendered nugatory. We specifically asked Mr. De a question as to what would be the position where a decree for eviction is made on two grounds, one under s. 13(1) (f) and the other under other provisions of s. 13 and the appeal of the tenant is pending. Would the appeal become incompetent if the-.tenant does not apply under s. 17E ? If the tenant applies under s. 17E he can get relief on the only ground that the decree was on the ground mentioned in clause (f) of sub-s. (1) of s. 13 and not the other grounds because relief was sought to be granted by the provisions contained in s. 17E to those tenants against whom decree for eviction was made under s. 13(1) (f). Would the appeal in such a situation become incompetent in part and remain competent for the other part ? Therefore, it could not be said that once a specific remedy under s. 17E is provided for the benefit of tenants under a decree for eviction on the ground mentioned in s. 13(1) (f), that is the only way and no other in which he could get relief. If so, his appeal would become incompetent. Remedy under s. 17E is an additional remedy. More particularly it appears for the benefit of those tenants against whom decree for eviction was made under s. 13 (1) (f) and appeal by whom was not pending so that they could protect themselves against eviction by landlords whose suits had become incompetent in view of the provisions contained in sub-s. (3A) of s. 13.
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State Of H.P Vs. Narender Kumar | Raj Karans case (supra), wherein it was observed that it is mandatory that the materials referred in Rules 17 and 18 are to be separately sent to the Public Analyst. The object of Rule 18 is to ensure the accuracy of the seal on the sample sent to the Public Analyst by comparison with the specimen impression of the seal sent by the food Inspector separately. The report of the Public Analyst in terms of Rule 7(3) marked as Ext. PJ shows that he found the same intact and unbroken. The seal fixed on the container and on the outer cover of the sample tallied with the specimen impression of the seal separately sent by the Food Inspector. A presumption can be drawn that requirements of Rule 18 have been complied with. The presumption under Section 114 of the Indian Evidence Act, 1872 (in short the Evidence Act) in relation to regular performance of official acts applies to the report of a Public Analyst. However, this presumption is rebuttable. No effort was made by the accused to dislodge this presumption. There was even no suggestion to the Food Inspector (PW-1) who exhibited the report that there is any untruth in the recital by the Public Analyst. It is relevant to note that under sub-section (5) of Section 13 of the Act any document purporting to be a report signed by a Public Analyst unless it has been superseded under sub-section (3) of the said Section or any document purporting to be a certificate to be a signed by the Director of the Central Food Laboratory, may be used as evidence of the facts stated therein any proceeding under the Act. It is urged that the memorandum and the specimen impression of seal were to be sent separately in different packets. On a plain reading of Rule 18, what is required is that a copy of the memorandum and specimen impression of the seal used to seal the packet shall be sent in a sealed packet (underlined for emphasis) separately to the Public Analyst. As indicated above, the word separately refers to separate despatch of articles indicated in Rule 17, and Rule 18. The expression in a sealed packet refers to both the copy of memorandum and the specimen impression of the seal. The are both required to be sent in a sealed packet. Plurality of packets is not provided for and obligated. What is required is that the copy of memorandum and specimen impression of the seal used to seal the packet are to be sent in a sealed packet separately and not with the articles required to be sent under Rule 17. 8. This Court in N. Sukumaran Nair vs. Food Inspector, Mavelikara (1997 (9) SCC 101 ) dealt with requirements of Rule 18 and in paragraph 2 noted as follows: "It has vehemently been urged by Mr. V.A. Bobde, learned Senior Counsel that compliance of Rule 18 was mandatory and since there was an infraction in the instant case the view of the trial court deserves to prevail. We fail to see how there is violation of the said Rule. The Food Inspector as PW1 was categorie that he had sent the specimen impression of the seal separately to the Public Analyst under sealed cover. It is true that he did not adduce in evidence the postal receipt vide which the specimen impression of the seal was sent separately. The Food Inspector could be dubbed wrong if his statement had been challenged in cross-examination. As is obvious, the Food Inspector deposed to the observance of the requirement of Rule 18 but, at best, can be said not to have introduced corroborative evidence to his word. But if the word of the Food Inspector is not challenged in cross examination and is otherwise found corroborated from the report of the Public Analyst wherein the necessary recitals, even though in printed form, are available, compliance of Rule 18 becomes obvious. Such report by the Public Analyst is ex facie evidence. There are methods to challenge the same which were not resorted on. We are, thus, of the view that the High Court was justified in upsetting the order of acquittal on the aforesaid ground." 9. Additional during trial PW-1 produced postal receipts (Exts. PE and PG) with regard to the memos and Ext. PW1/A and Ext. PW1/B regarding despatch of the same sending of memos. The genuiness of the receipts was not questioned by accused no.1. Strangely, the trial court and High Court did not consider the evidentiary value of these documents. 10. When the evidence on record is considered in the background of the legal position highlighted above, the inevitable conclusion is that the Trial Court and the High Court were not justified in directing acquittal of accused no.1. So far as the acquittal of accused no.2 is concerned, the conclusions of the Trial Court and the High Court have been arrived at by properly appreciating the evidence and no interference is called for.11. The occurrence took place nearly two decades back, and the Courts below acquitted the accused, though erroneously. Therefore, keeping in view the nature of violation and the peculiar facts and circumstances of the case while sentencing accused no.1 to undergo 6 months RI and fine of Rs. 1,000/- we make it clear that if accused no.1 moves the appropriate government to commute the sentence of imprisonment, the same may be considered in the light of this Courts decision in N. Sukumarans case (supra) subject to such conditions or terms as the government may chose to impose. For period of three months, the accused need not surrender to undergo sentence. During this period it shall be open to him to move the appropriate government for commutation. The fate of the order of commutation, if any, shall be operative. If no order is the matter of commutation is passed by the appropriate government, the accused no.1 shall surrender the custody to serve the remainder of sentence. 12. | 1[ds]When the evidence on record is considered in the background of the legal position highlighted above, the inevitable conclusion is that the Trial Court and the High Court were not justified in directing acquittal of accused no.1. So far as the acquittal of accused no.2 is concerned, the conclusions of the Trial Court and the High Court have been arrived at by properly appreciating the evidence and no interference is called for.11. The occurrence took place nearly two decades back, and the Courts below acquitted the accused, though erroneously. Therefore, keeping in view the nature of violation and the peculiar facts and circumstances of the case while sentencing accused no.1 to undergo 6 months RI and fine of Rs. 1,000/- we make it clear that if accused no.1 moves the appropriate government to commute the sentence of imprisonment, the same may be considered in the light of this Courts decision in N. Sukumarans case (supra) subject to such conditions or terms as the government may chose to impose. For period of three months, the accused need not surrender to undergo sentence. During this period it shall be open to him to move the appropriate government for commutation. The fate of the order of commutation, if any, shall be operative. If no order is the matter of commutation is passed by the appropriate government, the accused no.1 shall surrender the custody to serve the remainder of sentence. | 1 | 2,426 | 261 | ### 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:
Raj Karans case (supra), wherein it was observed that it is mandatory that the materials referred in Rules 17 and 18 are to be separately sent to the Public Analyst. The object of Rule 18 is to ensure the accuracy of the seal on the sample sent to the Public Analyst by comparison with the specimen impression of the seal sent by the food Inspector separately. The report of the Public Analyst in terms of Rule 7(3) marked as Ext. PJ shows that he found the same intact and unbroken. The seal fixed on the container and on the outer cover of the sample tallied with the specimen impression of the seal separately sent by the Food Inspector. A presumption can be drawn that requirements of Rule 18 have been complied with. The presumption under Section 114 of the Indian Evidence Act, 1872 (in short the Evidence Act) in relation to regular performance of official acts applies to the report of a Public Analyst. However, this presumption is rebuttable. No effort was made by the accused to dislodge this presumption. There was even no suggestion to the Food Inspector (PW-1) who exhibited the report that there is any untruth in the recital by the Public Analyst. It is relevant to note that under sub-section (5) of Section 13 of the Act any document purporting to be a report signed by a Public Analyst unless it has been superseded under sub-section (3) of the said Section or any document purporting to be a certificate to be a signed by the Director of the Central Food Laboratory, may be used as evidence of the facts stated therein any proceeding under the Act. It is urged that the memorandum and the specimen impression of seal were to be sent separately in different packets. On a plain reading of Rule 18, what is required is that a copy of the memorandum and specimen impression of the seal used to seal the packet shall be sent in a sealed packet (underlined for emphasis) separately to the Public Analyst. As indicated above, the word separately refers to separate despatch of articles indicated in Rule 17, and Rule 18. The expression in a sealed packet refers to both the copy of memorandum and the specimen impression of the seal. The are both required to be sent in a sealed packet. Plurality of packets is not provided for and obligated. What is required is that the copy of memorandum and specimen impression of the seal used to seal the packet are to be sent in a sealed packet separately and not with the articles required to be sent under Rule 17. 8. This Court in N. Sukumaran Nair vs. Food Inspector, Mavelikara (1997 (9) SCC 101 ) dealt with requirements of Rule 18 and in paragraph 2 noted as follows: "It has vehemently been urged by Mr. V.A. Bobde, learned Senior Counsel that compliance of Rule 18 was mandatory and since there was an infraction in the instant case the view of the trial court deserves to prevail. We fail to see how there is violation of the said Rule. The Food Inspector as PW1 was categorie that he had sent the specimen impression of the seal separately to the Public Analyst under sealed cover. It is true that he did not adduce in evidence the postal receipt vide which the specimen impression of the seal was sent separately. The Food Inspector could be dubbed wrong if his statement had been challenged in cross-examination. As is obvious, the Food Inspector deposed to the observance of the requirement of Rule 18 but, at best, can be said not to have introduced corroborative evidence to his word. But if the word of the Food Inspector is not challenged in cross examination and is otherwise found corroborated from the report of the Public Analyst wherein the necessary recitals, even though in printed form, are available, compliance of Rule 18 becomes obvious. Such report by the Public Analyst is ex facie evidence. There are methods to challenge the same which were not resorted on. We are, thus, of the view that the High Court was justified in upsetting the order of acquittal on the aforesaid ground." 9. Additional during trial PW-1 produced postal receipts (Exts. PE and PG) with regard to the memos and Ext. PW1/A and Ext. PW1/B regarding despatch of the same sending of memos. The genuiness of the receipts was not questioned by accused no.1. Strangely, the trial court and High Court did not consider the evidentiary value of these documents. 10. When the evidence on record is considered in the background of the legal position highlighted above, the inevitable conclusion is that the Trial Court and the High Court were not justified in directing acquittal of accused no.1. So far as the acquittal of accused no.2 is concerned, the conclusions of the Trial Court and the High Court have been arrived at by properly appreciating the evidence and no interference is called for.11. The occurrence took place nearly two decades back, and the Courts below acquitted the accused, though erroneously. Therefore, keeping in view the nature of violation and the peculiar facts and circumstances of the case while sentencing accused no.1 to undergo 6 months RI and fine of Rs. 1,000/- we make it clear that if accused no.1 moves the appropriate government to commute the sentence of imprisonment, the same may be considered in the light of this Courts decision in N. Sukumarans case (supra) subject to such conditions or terms as the government may chose to impose. For period of three months, the accused need not surrender to undergo sentence. During this period it shall be open to him to move the appropriate government for commutation. The fate of the order of commutation, if any, shall be operative. If no order is the matter of commutation is passed by the appropriate government, the accused no.1 shall surrender the custody to serve the remainder of sentence. 12.
### Response:
1
### Explanation:
When the evidence on record is considered in the background of the legal position highlighted above, the inevitable conclusion is that the Trial Court and the High Court were not justified in directing acquittal of accused no.1. So far as the acquittal of accused no.2 is concerned, the conclusions of the Trial Court and the High Court have been arrived at by properly appreciating the evidence and no interference is called for.11. The occurrence took place nearly two decades back, and the Courts below acquitted the accused, though erroneously. Therefore, keeping in view the nature of violation and the peculiar facts and circumstances of the case while sentencing accused no.1 to undergo 6 months RI and fine of Rs. 1,000/- we make it clear that if accused no.1 moves the appropriate government to commute the sentence of imprisonment, the same may be considered in the light of this Courts decision in N. Sukumarans case (supra) subject to such conditions or terms as the government may chose to impose. For period of three months, the accused need not surrender to undergo sentence. During this period it shall be open to him to move the appropriate government for commutation. The fate of the order of commutation, if any, shall be operative. If no order is the matter of commutation is passed by the appropriate government, the accused no.1 shall surrender the custody to serve the remainder of sentence.
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Assam Small Scale Ind. Dev. Corp. Vs. M/S. J.D. Pharmaceuticals | were the tenants of the plaintiffs. They are claiming through Papamiya. At the most, therefore, they can be said to be sub-tenants i.e. tenants of Papamiya. There was no privity of contract between the landlord and the respondents. In our opinion, therefore, it was not necessary for the plaintiffs to join the respondents as defendants in the suit nor to give notice to them before initiation of the proceedings. The respondents cannot be said to be “necessary party” to the proceedings.26. As held by this Court in Udit Narain Singh Malpaharia v. Addl. Member, Board of Revenue, Bihar-8, there is a distinction between “necessary party” and “proper party”. In that case, the Court said: (SCR p. 681)“The law on the subject is well settled: it is enough if we state the principle. A necessary party is one without whom no order can be made effectively; a proper party is one in whose absence an effective order can be made but whose presence is necessary for a complete and final decision on the question involved in the proceeding.” (Emphasis supplied) We respectfully adopt the same. 37. The Corporation for all intent and purport having undertaken the liability of the purchasing authorities would also be liable for all consequences arising from non-payment of the price of the goods supplied. 38. We may summarise the effect of the 1989 Act, the marketing support scheme of the Corporation, the O.M. dated 28.3.1988 referred to in Section 7(1)(iii) of the 1989 Act, and the agreement between the Corporation and the respondent, as follows : (i) The Corporation had to collect 90% of the value of the orders placed by the purchasing departments, in advance, and release the said 90% to the respondent on supply. This obligation is a statutory obligation having regard to the provisions of Section 7(1)(c) of the 1989 Act read with Clause 4 of the O.M. dated 28.3.1988 and the Clause relating to ‘indenting’ contained in the Marketing Assistance Scheme. This would mean that if the Corporation accepts indents from Government departments without 90% advance and chooses to place corresponding supply orders on the respondent, it (the Corporation) is liable to pay the said 90% to the respondent on supply whether the Corporation chose to receive payment from the indenting departments or not. (ii) Though the respondent is described as the ‘principal’ and the Corporation is described as the ‘agent’ in the agreement dated 19.10.1990 between the respondent and the Corporation, the Corporation was not entitled to receive any commission or remuneration or consideration from the respondent for the orders procured/placed. It is entitled to receive the commission (at the rate of 5% of the price) only from the indenting departments. The Corporation, thus, acted as the ‘agent’ of both the respondent-supplier and the Indenting Government Departments and took the responsibility of paying the price to the respondent. In fact, under Clause 6 of the agreement, the respondent specifically authorised the Corporation to raise bills of sale on behalf of the respondent, either disclosing or without disclosing the name of the respondent, and collect the payment from the buyer department. The said Clause also specifically contemplates the Corporation releasing 90% of the value of the material on delivery and acceptance, and payment of balance of 10% after receipt of full payment from the purchasing department. As noticed above, the statutory scheme and the O.M. required the Corporation to receive the 90% payment in advance along with the indents from the purchasing departments and any relaxation by the Corporation of that provision was done at its own risk. APPLICABILITY OF THE 1993 ACT: 39. We have held hereinbefore that Clause 8 of the terms and conditions relate to the payments of balance 10%. It is not in dispute that the plaintiff had demanded both the principal amount as also the interest from the Corporation. Section 3 of the 1993 Act imposes a statutory liability upon the buyer to make payment for the supplies of any goods either on or before the agreed date or where there is no agreement before the appointed day. Only when payments are not made in terms of Section 3, Section 4 would apply. The 1993 Act came into effect with effect from 23.9.1992 and will not apply to transactions which took place prior to that date. We find that out of the 71 suit transactions, Sl. Nos.1 to 26 (referred to in penultimate para of the Trial Court judgment), that is supply orders between 5.6.1991 to 28.7.1992, were prior to the date of 1993 Act coming into force. Only the transactions at Sl. No. 27 to 71 (that is supply orders between 22.10.1992 to 19.6.1993). will attract the provisions of the 1993 Act.40. The 1993 Act, thus, will have no application in relation to the transactions entered into between June, 1991 and 23.9.1992. The Trial Court as also the High Court, therefore, committed a manifest error in directing payment of interest at the rate of 23% upto June, 1991 and 23.5% thereafter. 41. Mr. Choudhary has placed reliance upon a Full Bench decision of Guwahati High Court in Assam State Electricity Board & Ors. v. M/s. Shanti Conductors (P) Ltd. & Anr., 2002 (1) GLT 547 , which having regard to the non obstante Clause contained in Sections 4, 5 and 10 of the 1993 Act opined that interest payable thereunder shall embrace within its fold even the contracts which might have been entered into prior to the enforcement of the Act stating: “However, in such a case interest on the delayed payment which is made after the coming into force of the Act of 1993 would be calculated under the Act from the date of the enforcement of the Act and not from the date of payment prescribed under the agreement.” 42. With respect, we do not subscribe to the said view as payment of interest at an enhanced rate cannot be made in relation to the transactions where Section 3 will have no role to play. | 1[ds]26. The expressionsused in a document are not decisive. The nature of transaction is required to be determined on the basis of the substance there and not by the nomenclature used. Documents are to be construed having regard to the contexts thereof whereformay not be of much relevance. The 1989 Act, the scheme and the guidelines postulate constitution of a State Board for the purpose of monitoring supplies to various departments of the State, the Government Corporations and the companies. The Managing Director of the Corporation is a Member of the Board in terms of the provisions of the 1989 Act. The Corporation was created for the purpose of giving effect to the provisions of the Act and the scheme framed thereunder. It is a statutory body and is awithin the meaning of Article 12 of the Constitution of India. The contract by and between the parties being a statutory one, the Corporation was required to act fairly and reasonably. The principal purpose of the Act was to give encouragement to the growth of industries in the State of Assam and patronizing the products of small scale and cottage industries on preferential basis. The 1989 Act contemplates acts which would be for the betterment of the SSI units and not acts which would be detrimental to their interest. The terms used in the agreement must, therefore, be understood in that perspective.It is no longer in doubt or dispute that while interpreting the terms of agreement, it is necessary to look to the substance of the matter rather than its form. Use of a terminology may not be sufficient to lead to a conclusion that the parties to the contract in fact intended that the said status would be conferred.Law contemplates different types of agency. Under the Contract Act, the concept of del credere agent isA del credere agent assumes responsibility for the solvency and performance of their contract by the vendees and, thus, indemnifies his employer against loss. He gives an additional security to the seller. [See Bowstead & Reynolds on Agency, 17th Edition, paraHowever, it is not necessary to dilate thereupon as the status of the parties herein must be determined in terms of the provisons of the 1989 Act.32. The 1989 Act makes a statutory provision beyond the concept of agency as contained in the Contract Act. It is a special statute. In terms thereof the respondent was not required to pay any commission to the Corporation, though the Corporation was described asof the respondent under the agreement. 5% commission was to be paid to the Corporation by the purchasing authorities. The provisions of the 1989 Act, thus, should be given full effect. The status of the parties must not, thus, be determined as to how they have described themselves but having regard to the substance of the transaction as envisaged under the Act and the scheme framed, which as noticed hereinbefore, is as a part of the Act.33. As a statutory agency came into being by and between the purchasing authorities and the Corporation in terms whereof the Corporation not only exercised the control in relation to the entire supply of materials, as a part of the statutory scheme, it also undertook to collect the price of the goods supplied from the purchasing authorities and pay the same to the manufacturers subject, of course, to the payment of its commission which would be a substantial amount. Under the scheme, the purchasing authorities had a duty to pay 90% of the price before the Corporation makes an indent and, thus, the latter had a statutory duty to realize the same before an indent is made, as also the remaining 10% when supplies are completed. If the payment was to be made by the Corporation to the respondent both under the contract as also in terms of the statutory provision, it cannot now turn round and contend that it was not part of its duty and leave the matter at that. It was obligated having regard to the statutory scheme on the part of the Corporation to realize the price for the consideration of the goods supplied. It was not constituted merely to act as a conduit pipe. It was bound to perform its statutory duties envisaged under the 1989 Act.34. Furthermore, it is one thing to say that the respondent delivered goods without receiving 90% of the indented amount but it is another thing to say that it has waived its right. No case of waiver of statutory duty has been made out. Nothing has been pointed before us that the respondent gave up its claim to receive the amount directly from the Corporation. Its conduct suggests contra. The respondent for a period of about two years made those supplies and had been asking the Corporation to make its payment and, as noticed hereinbefore, the respondent filed a suit at the earliest possible opportunity. Even during last 12 years, the Corporation made no effort to realize the amount from the State and pay the same to a small scale industry for whose benefit the 1989 Act was enacted. It had shown utter despondency and behaved in a cavalier manner taking umbrage under specious plea that the State was a necessary party. There was no privity of contract between the Corporation and the purchasing authorities. All payment of the purchasing authorities were to be channelised through the Corporation. Having regard to the transactions between the parties as also the Scheme and the Act, we are of the opinion that the State of Assam was not a necessary party.35. In terms of the agreement between the parties hereto, the State of Assam would not be a necessary party but merely be a proper party.We have held hereinbefore that Clause 8 of the terms and conditions relate to the payments of balance 10%. It is not in dispute that the plaintiff had demanded both the principal amount as also the interest from the Corporation. Section 3 of the 1993 Act imposes a statutory liability upon the buyer to make payment for the supplies of any goods either on or before the agreed date or where there is no agreement before the appointed day. Only when payments are not made in terms of Section 3, Section 4 would apply. The 1993 Act came into effect with effect from 23.9.1992 and will not apply to transactions which took place prior to that date. We find that out of the 71 suit transactions, Sl. Nos.1 to 26 (referred to in penultimate para of the Trial Court judgment), that is supply orders between 5.6.1991 to 28.7.1992, were prior to the date of 1993 Act coming into force. Only the transactions at Sl. No. 27 to 71 (that is supply orders between 22.10.1992 to 19.6.1993). will attract the provisions of the 1993 Act.40. The 1993 Act, thus, will have no application in relation to the transactions entered into between June, 1991 and 23.9.1992. The Trial Court as also the High Court, therefore, committed a manifest error in directing payment of interest at the rate of 23% upto June, 1991 and 23.5% thereafter.With respect, we do not subscribe to the said view as payment of interest at an enhanced rate cannot be made in relation to the transactions where Section 3 will have no role to play. | 1 | 7,257 | 1,334 | ### 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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were the tenants of the plaintiffs. They are claiming through Papamiya. At the most, therefore, they can be said to be sub-tenants i.e. tenants of Papamiya. There was no privity of contract between the landlord and the respondents. In our opinion, therefore, it was not necessary for the plaintiffs to join the respondents as defendants in the suit nor to give notice to them before initiation of the proceedings. The respondents cannot be said to be “necessary party” to the proceedings.26. As held by this Court in Udit Narain Singh Malpaharia v. Addl. Member, Board of Revenue, Bihar-8, there is a distinction between “necessary party” and “proper party”. In that case, the Court said: (SCR p. 681)“The law on the subject is well settled: it is enough if we state the principle. A necessary party is one without whom no order can be made effectively; a proper party is one in whose absence an effective order can be made but whose presence is necessary for a complete and final decision on the question involved in the proceeding.” (Emphasis supplied) We respectfully adopt the same. 37. The Corporation for all intent and purport having undertaken the liability of the purchasing authorities would also be liable for all consequences arising from non-payment of the price of the goods supplied. 38. We may summarise the effect of the 1989 Act, the marketing support scheme of the Corporation, the O.M. dated 28.3.1988 referred to in Section 7(1)(iii) of the 1989 Act, and the agreement between the Corporation and the respondent, as follows : (i) The Corporation had to collect 90% of the value of the orders placed by the purchasing departments, in advance, and release the said 90% to the respondent on supply. This obligation is a statutory obligation having regard to the provisions of Section 7(1)(c) of the 1989 Act read with Clause 4 of the O.M. dated 28.3.1988 and the Clause relating to ‘indenting’ contained in the Marketing Assistance Scheme. This would mean that if the Corporation accepts indents from Government departments without 90% advance and chooses to place corresponding supply orders on the respondent, it (the Corporation) is liable to pay the said 90% to the respondent on supply whether the Corporation chose to receive payment from the indenting departments or not. (ii) Though the respondent is described as the ‘principal’ and the Corporation is described as the ‘agent’ in the agreement dated 19.10.1990 between the respondent and the Corporation, the Corporation was not entitled to receive any commission or remuneration or consideration from the respondent for the orders procured/placed. It is entitled to receive the commission (at the rate of 5% of the price) only from the indenting departments. The Corporation, thus, acted as the ‘agent’ of both the respondent-supplier and the Indenting Government Departments and took the responsibility of paying the price to the respondent. In fact, under Clause 6 of the agreement, the respondent specifically authorised the Corporation to raise bills of sale on behalf of the respondent, either disclosing or without disclosing the name of the respondent, and collect the payment from the buyer department. The said Clause also specifically contemplates the Corporation releasing 90% of the value of the material on delivery and acceptance, and payment of balance of 10% after receipt of full payment from the purchasing department. As noticed above, the statutory scheme and the O.M. required the Corporation to receive the 90% payment in advance along with the indents from the purchasing departments and any relaxation by the Corporation of that provision was done at its own risk. APPLICABILITY OF THE 1993 ACT: 39. We have held hereinbefore that Clause 8 of the terms and conditions relate to the payments of balance 10%. It is not in dispute that the plaintiff had demanded both the principal amount as also the interest from the Corporation. Section 3 of the 1993 Act imposes a statutory liability upon the buyer to make payment for the supplies of any goods either on or before the agreed date or where there is no agreement before the appointed day. Only when payments are not made in terms of Section 3, Section 4 would apply. The 1993 Act came into effect with effect from 23.9.1992 and will not apply to transactions which took place prior to that date. We find that out of the 71 suit transactions, Sl. Nos.1 to 26 (referred to in penultimate para of the Trial Court judgment), that is supply orders between 5.6.1991 to 28.7.1992, were prior to the date of 1993 Act coming into force. Only the transactions at Sl. No. 27 to 71 (that is supply orders between 22.10.1992 to 19.6.1993). will attract the provisions of the 1993 Act.40. The 1993 Act, thus, will have no application in relation to the transactions entered into between June, 1991 and 23.9.1992. The Trial Court as also the High Court, therefore, committed a manifest error in directing payment of interest at the rate of 23% upto June, 1991 and 23.5% thereafter. 41. Mr. Choudhary has placed reliance upon a Full Bench decision of Guwahati High Court in Assam State Electricity Board & Ors. v. M/s. Shanti Conductors (P) Ltd. & Anr., 2002 (1) GLT 547 , which having regard to the non obstante Clause contained in Sections 4, 5 and 10 of the 1993 Act opined that interest payable thereunder shall embrace within its fold even the contracts which might have been entered into prior to the enforcement of the Act stating: “However, in such a case interest on the delayed payment which is made after the coming into force of the Act of 1993 would be calculated under the Act from the date of the enforcement of the Act and not from the date of payment prescribed under the agreement.” 42. With respect, we do not subscribe to the said view as payment of interest at an enhanced rate cannot be made in relation to the transactions where Section 3 will have no role to play.
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used in the agreement must, therefore, be understood in that perspective.It is no longer in doubt or dispute that while interpreting the terms of agreement, it is necessary to look to the substance of the matter rather than its form. Use of a terminology may not be sufficient to lead to a conclusion that the parties to the contract in fact intended that the said status would be conferred.Law contemplates different types of agency. Under the Contract Act, the concept of del credere agent isA del credere agent assumes responsibility for the solvency and performance of their contract by the vendees and, thus, indemnifies his employer against loss. He gives an additional security to the seller. [See Bowstead & Reynolds on Agency, 17th Edition, paraHowever, it is not necessary to dilate thereupon as the status of the parties herein must be determined in terms of the provisons of the 1989 Act.32. The 1989 Act makes a statutory provision beyond the concept of agency as contained in the Contract Act. It is a special statute. In terms thereof the respondent was not required to pay any commission to the Corporation, though the Corporation was described asof the respondent under the agreement. 5% commission was to be paid to the Corporation by the purchasing authorities. The provisions of the 1989 Act, thus, should be given full effect. The status of the parties must not, thus, be determined as to how they have described themselves but having regard to the substance of the transaction as envisaged under the Act and the scheme framed, which as noticed hereinbefore, is as a part of the Act.33. As a statutory agency came into being by and between the purchasing authorities and the Corporation in terms whereof the Corporation not only exercised the control in relation to the entire supply of materials, as a part of the statutory scheme, it also undertook to collect the price of the goods supplied from the purchasing authorities and pay the same to the manufacturers subject, of course, to the payment of its commission which would be a substantial amount. Under the scheme, the purchasing authorities had a duty to pay 90% of the price before the Corporation makes an indent and, thus, the latter had a statutory duty to realize the same before an indent is made, as also the remaining 10% when supplies are completed. If the payment was to be made by the Corporation to the respondent both under the contract as also in terms of the statutory provision, it cannot now turn round and contend that it was not part of its duty and leave the matter at that. It was obligated having regard to the statutory scheme on the part of the Corporation to realize the price for the consideration of the goods supplied. It was not constituted merely to act as a conduit pipe. It was bound to perform its statutory duties envisaged under the 1989 Act.34. Furthermore, it is one thing to say that the respondent delivered goods without receiving 90% of the indented amount but it is another thing to say that it has waived its right. No case of waiver of statutory duty has been made out. Nothing has been pointed before us that the respondent gave up its claim to receive the amount directly from the Corporation. Its conduct suggests contra. The respondent for a period of about two years made those supplies and had been asking the Corporation to make its payment and, as noticed hereinbefore, the respondent filed a suit at the earliest possible opportunity. Even during last 12 years, the Corporation made no effort to realize the amount from the State and pay the same to a small scale industry for whose benefit the 1989 Act was enacted. It had shown utter despondency and behaved in a cavalier manner taking umbrage under specious plea that the State was a necessary party. There was no privity of contract between the Corporation and the purchasing authorities. All payment of the purchasing authorities were to be channelised through the Corporation. Having regard to the transactions between the parties as also the Scheme and the Act, we are of the opinion that the State of Assam was not a necessary party.35. In terms of the agreement between the parties hereto, the State of Assam would not be a necessary party but merely be a proper party.We have held hereinbefore that Clause 8 of the terms and conditions relate to the payments of balance 10%. It is not in dispute that the plaintiff had demanded both the principal amount as also the interest from the Corporation. Section 3 of the 1993 Act imposes a statutory liability upon the buyer to make payment for the supplies of any goods either on or before the agreed date or where there is no agreement before the appointed day. Only when payments are not made in terms of Section 3, Section 4 would apply. The 1993 Act came into effect with effect from 23.9.1992 and will not apply to transactions which took place prior to that date. We find that out of the 71 suit transactions, Sl. Nos.1 to 26 (referred to in penultimate para of the Trial Court judgment), that is supply orders between 5.6.1991 to 28.7.1992, were prior to the date of 1993 Act coming into force. Only the transactions at Sl. No. 27 to 71 (that is supply orders between 22.10.1992 to 19.6.1993). will attract the provisions of the 1993 Act.40. The 1993 Act, thus, will have no application in relation to the transactions entered into between June, 1991 and 23.9.1992. The Trial Court as also the High Court, therefore, committed a manifest error in directing payment of interest at the rate of 23% upto June, 1991 and 23.5% thereafter.With respect, we do not subscribe to the said view as payment of interest at an enhanced rate cannot be made in relation to the transactions where Section 3 will have no role to play.
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Kurvan Ansari alias Kurvan Ali & Anr Vs. Shyam Kishore Murmu & Anr | from its owner. 5. Pleading contributory negligence, the insurance company had preferred M.A. No.115 of 2011, for enhancement of compensation, the claimants have preferred M.A. No.66 of 2011, before the High Court of Jharkhand at Ranchi. 6. By the impugned judgment, the High Court has dismissed the appeal preferred by the Insurance Company and partly allowed the appeal preferred by the claimants by awarding a further sum of Rs.15,000/- towards funeral expenses. Thus, it is held that the appellants are entitled to a sum of Rs.2,40,000/- towards compensation with interest as awarded by the Tribunal from the date of filing Claim Petition. 7. We have heard Sri S.N. Bhat, learned counsel for the appellants, and Sri V.S. Chopra, learned counsel for respondent No.2 - Insurance Company. 8. Sri S.N. Bhat, learned counsel for the appellants, mainly contended that the compensation awarded by the Tribunal as confirmed by the High Court is on lower side and is not just and fair. The learned counsel has contended that the compensation was awarded by assuming income of the deceased notionally at Rs.15,000/- per annum as per Schedule-II of the Motor Vehicles Act, 1988 which is applicable to the claims made under Section 163-A of the Motor Vehicles Act, 1988. It is submitted that the notional income of Rs.15,000/- was fixed as early as in the year 1994 and somehow, the same is continued in the statute without any amendment in spite of repeated directions by this Court. It is submitted that in view of the provision under Section 163-A(3) of the Motor Vehicles Act 1988, though it was obligatory on the part of the Government to amend Schedule–II, same as fixed in the year 1994, continued since then. Thus, it is submitted that the notional income as fixed, is to be considered by taking into account increase in the cost of living. In support of his arguments, the learned counsel for the appellants has relied on the judgments of this Court in the cases of Puttamma & Ors. v. K.L. Narayana Reddy & Anr. 2013) 15 SCC 45 , R.K. Malik & Anr. v. Kiran Pal & Ors. (2009) 14 SCC 1 and Kishan Gopal & Anr. v. Lala & Ors. (2014) 1 SCC 244 . 9. On the other hand, Sri V.S. Chopra, learned counsel for respondent No.2 - Insurance Company, has submitted that there are no grounds to interfere with the impugned judgment of the High Court and placed reliance on the judgment of this Court in the case of Rajendra Singh & Ors. v. National Insurance Company Limited & Ors. (2020) 7 SCC 256 . 10. Having heard the learned counsel for the parties, we have perused the impugned judgment and the other material placed on record. 11. As the claim was made under Section 163-A of the Motor Vehicles Act 1988, since the deceased child was not an earning member, the Tribunal has considered notional income as per Schedule–II for the purpose of fixing compensation. The Tribunal has awarded compensation by taking notional income of the deceased at Rs.15,000/- per annum by applying multiplier 15, awarded compensation of Rs.2,25,000/- towards loss of dependency with interest @ 6% per annum from the date of judgment. When the appeals are preferred by the Insurance Company as well as the appellants herein, by the impugned common judgment, the High Court has dismissed the appeal preferred by the Insurance Company, and in the appeal preferred by the claimants, while confirming the compensation awarded for loss of dependency at Rs.2,25,000/-, has awarded a further sum of Rs.15,000/- towards funeral expenses and accordingly granted a total compensation of Rs.2,40,000/- with interest @6% per annum payable by respondent No.2 - Insurance Company and by permitting it to recover the same from Respondent No.1 - owner of the motorcycle. 12. In the judgment in the case of Puttamma & Ors. (2013) 15 SCC 45, this Court has observed that the Central Government was bestowed with the duties to amend Schedule-II in view of Section 163-A(3) of the Motor Vehicles Act 1988, but it failed to do so. In view of the same, specific directions were issued to the Central Government to make appropriate amendments to Schedule-II keeping in mind the present cost of living. In the said judgment, till such amendments are made, directions were issued for award of compensation by fixing a sum of Rs.1,00,000/- (Rupees one lakh only) towards compensation for the non-earning children up to the age of 5 (five) years old and a sum of Rs.1,50,000/- (Rupees one lakh fifty thousand only) for the nonearning persons of more than 5 (five) years old. 13. In the case of R.K. Malik & Anr. (2013) 15 SCC 45 also, this Court has observed that the notional income fixed under Section 163-A of the Motor Vehicles Act, 1988 as Rs.15,000/- per annum should be enhanced and increased as the same continued to exist without any amendment since 14.11.1994. In the case of Kishan Gopal & Anr. (2014) 1 SCC 244 where the deceased was a ten years old child, this Court has fixed his notional income at Rs.30,000/- per annum. 14. In this case, it is to be noted that the accident was on 06.09.2004. In spite of repeated directions, Schedule-II is not yet amended. Therefore, fixing notional income at Rs.15,000/- per annum for nonearning members is not just and reasonable. 15. In view of the judgments in the cases in Puttamma & Ors. (2013) 15 SCC 45, R.K. Malik & Anr. (2009) 14 SCC 1 and Kishan Gopal & Anr. (2014) 1 SCC 244, we are of the view that it is a fit case to increase the notional income by taking into account the inflation, devaluation of the rupee and cost of living. In view of the same, the judgment in the case of Rajendra Singh & Ors. (2020) 7 SCC 256 relied on by the learned counsel for respondent No.2-Insurance Company would not render any assistance to the case of the insurance company. | 1[ds]12. In the judgment in the case of Puttamma & Ors. (2013) 15 SCC 45, this Court has observed that the Central Government was bestowed with the duties to amend Schedule-II in view of Section 163-A(3) of the Motor Vehicles Act 1988, but it failed to do so. In view of the same, specific directions were issued to the Central Government to make appropriate amendments to Schedule-II keeping in mind the present cost of living. In the said judgment, till such amendments are made, directions were issued for award of compensation by fixing a sum of Rs.1,00,000/- (Rupees one lakh only) towards compensation for the non-earning children up to the age of 5 (five) years old and a sum of Rs.1,50,000/- (Rupees one lakh fifty thousand only) for the nonearning persons of more than 5 (five) years old.14. In this case, it is to be noted that the accident was on 06.09.2004. In spite of repeated directions, Schedule-II is not yet amended. Therefore, fixing notional income at Rs.15,000/- per annum for nonearning members is not just and reasonable.15. In view of the judgments in the cases in Puttamma & Ors. (2013) 15 SCC 45, R.K. Malik & Anr. (2009) 14 SCC 1 and Kishan Gopal & Anr. (2014) 1 SCC 244, we are of the view that it is a fit case to increase the notional income by taking into account the inflation, devaluation of the rupee and cost of living. In view of the same, the judgment in the case of Rajendra Singh & Ors. (2020) 7 SCC 256 relied on by the learned counsel for respondent No.2-Insurance Company would not render any assistance to the case of the insurance company. | 1 | 1,479 | 333 | ### Instruction:
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from its owner. 5. Pleading contributory negligence, the insurance company had preferred M.A. No.115 of 2011, for enhancement of compensation, the claimants have preferred M.A. No.66 of 2011, before the High Court of Jharkhand at Ranchi. 6. By the impugned judgment, the High Court has dismissed the appeal preferred by the Insurance Company and partly allowed the appeal preferred by the claimants by awarding a further sum of Rs.15,000/- towards funeral expenses. Thus, it is held that the appellants are entitled to a sum of Rs.2,40,000/- towards compensation with interest as awarded by the Tribunal from the date of filing Claim Petition. 7. We have heard Sri S.N. Bhat, learned counsel for the appellants, and Sri V.S. Chopra, learned counsel for respondent No.2 - Insurance Company. 8. Sri S.N. Bhat, learned counsel for the appellants, mainly contended that the compensation awarded by the Tribunal as confirmed by the High Court is on lower side and is not just and fair. The learned counsel has contended that the compensation was awarded by assuming income of the deceased notionally at Rs.15,000/- per annum as per Schedule-II of the Motor Vehicles Act, 1988 which is applicable to the claims made under Section 163-A of the Motor Vehicles Act, 1988. It is submitted that the notional income of Rs.15,000/- was fixed as early as in the year 1994 and somehow, the same is continued in the statute without any amendment in spite of repeated directions by this Court. It is submitted that in view of the provision under Section 163-A(3) of the Motor Vehicles Act 1988, though it was obligatory on the part of the Government to amend Schedule–II, same as fixed in the year 1994, continued since then. Thus, it is submitted that the notional income as fixed, is to be considered by taking into account increase in the cost of living. In support of his arguments, the learned counsel for the appellants has relied on the judgments of this Court in the cases of Puttamma & Ors. v. K.L. Narayana Reddy & Anr. 2013) 15 SCC 45 , R.K. Malik & Anr. v. Kiran Pal & Ors. (2009) 14 SCC 1 and Kishan Gopal & Anr. v. Lala & Ors. (2014) 1 SCC 244 . 9. On the other hand, Sri V.S. Chopra, learned counsel for respondent No.2 - Insurance Company, has submitted that there are no grounds to interfere with the impugned judgment of the High Court and placed reliance on the judgment of this Court in the case of Rajendra Singh & Ors. v. National Insurance Company Limited & Ors. (2020) 7 SCC 256 . 10. Having heard the learned counsel for the parties, we have perused the impugned judgment and the other material placed on record. 11. As the claim was made under Section 163-A of the Motor Vehicles Act 1988, since the deceased child was not an earning member, the Tribunal has considered notional income as per Schedule–II for the purpose of fixing compensation. The Tribunal has awarded compensation by taking notional income of the deceased at Rs.15,000/- per annum by applying multiplier 15, awarded compensation of Rs.2,25,000/- towards loss of dependency with interest @ 6% per annum from the date of judgment. When the appeals are preferred by the Insurance Company as well as the appellants herein, by the impugned common judgment, the High Court has dismissed the appeal preferred by the Insurance Company, and in the appeal preferred by the claimants, while confirming the compensation awarded for loss of dependency at Rs.2,25,000/-, has awarded a further sum of Rs.15,000/- towards funeral expenses and accordingly granted a total compensation of Rs.2,40,000/- with interest @6% per annum payable by respondent No.2 - Insurance Company and by permitting it to recover the same from Respondent No.1 - owner of the motorcycle. 12. In the judgment in the case of Puttamma & Ors. (2013) 15 SCC 45, this Court has observed that the Central Government was bestowed with the duties to amend Schedule-II in view of Section 163-A(3) of the Motor Vehicles Act 1988, but it failed to do so. In view of the same, specific directions were issued to the Central Government to make appropriate amendments to Schedule-II keeping in mind the present cost of living. In the said judgment, till such amendments are made, directions were issued for award of compensation by fixing a sum of Rs.1,00,000/- (Rupees one lakh only) towards compensation for the non-earning children up to the age of 5 (five) years old and a sum of Rs.1,50,000/- (Rupees one lakh fifty thousand only) for the nonearning persons of more than 5 (five) years old. 13. In the case of R.K. Malik & Anr. (2013) 15 SCC 45 also, this Court has observed that the notional income fixed under Section 163-A of the Motor Vehicles Act, 1988 as Rs.15,000/- per annum should be enhanced and increased as the same continued to exist without any amendment since 14.11.1994. In the case of Kishan Gopal & Anr. (2014) 1 SCC 244 where the deceased was a ten years old child, this Court has fixed his notional income at Rs.30,000/- per annum. 14. In this case, it is to be noted that the accident was on 06.09.2004. In spite of repeated directions, Schedule-II is not yet amended. Therefore, fixing notional income at Rs.15,000/- per annum for nonearning members is not just and reasonable. 15. In view of the judgments in the cases in Puttamma & Ors. (2013) 15 SCC 45, R.K. Malik & Anr. (2009) 14 SCC 1 and Kishan Gopal & Anr. (2014) 1 SCC 244, we are of the view that it is a fit case to increase the notional income by taking into account the inflation, devaluation of the rupee and cost of living. In view of the same, the judgment in the case of Rajendra Singh & Ors. (2020) 7 SCC 256 relied on by the learned counsel for respondent No.2-Insurance Company would not render any assistance to the case of the insurance company.
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12. In the judgment in the case of Puttamma & Ors. (2013) 15 SCC 45, this Court has observed that the Central Government was bestowed with the duties to amend Schedule-II in view of Section 163-A(3) of the Motor Vehicles Act 1988, but it failed to do so. In view of the same, specific directions were issued to the Central Government to make appropriate amendments to Schedule-II keeping in mind the present cost of living. In the said judgment, till such amendments are made, directions were issued for award of compensation by fixing a sum of Rs.1,00,000/- (Rupees one lakh only) towards compensation for the non-earning children up to the age of 5 (five) years old and a sum of Rs.1,50,000/- (Rupees one lakh fifty thousand only) for the nonearning persons of more than 5 (five) years old.14. In this case, it is to be noted that the accident was on 06.09.2004. In spite of repeated directions, Schedule-II is not yet amended. Therefore, fixing notional income at Rs.15,000/- per annum for nonearning members is not just and reasonable.15. In view of the judgments in the cases in Puttamma & Ors. (2013) 15 SCC 45, R.K. Malik & Anr. (2009) 14 SCC 1 and Kishan Gopal & Anr. (2014) 1 SCC 244, we are of the view that it is a fit case to increase the notional income by taking into account the inflation, devaluation of the rupee and cost of living. In view of the same, the judgment in the case of Rajendra Singh & Ors. (2020) 7 SCC 256 relied on by the learned counsel for respondent No.2-Insurance Company would not render any assistance to the case of the insurance company.
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The Official Liquidators,U. P. Union Bank Ltd Vs. Shri Rameshwar Nath Aggarwal | rules deals with the rent or other payment in arrears till the date of winding up. By the proviso, it is declared that the right of the landlord to claim payment by the company of the rent accruing due thereafter is not to be prejudiced. The proviso merely affirms the right of the landlord to claim payment of rent accruing due since the date of winding up. It does not deal with any question of priority in payment of debts. By S. 246 of the Indian Companies act, 1913, power is conferred upon the High Court to make rules consistent with the Act and the Code of Civil Procedure concerning the mode of proceedings to be had for winding up of t he company and certain other matters. The Legislature has by S. 230 prescribed that certain specified categories of debts shall rank for priority over other debts due by the company and it is not within the competence of the High Court to prescribe by rule a category for priority in payment which is not included in that section. By S. 193 of the Act, the court has, in the event of the assets being insufficient to satisfy the liabilities, indisputably power to make an order for payment out of the assets, of the costs, charges and expenses incurred in the winding up in such order of priority as the court thinks fit, and in exercise of the power conferred by S. 230, sub-cl. 3, the court may direct the company to retain such sums as may be necessary for the cost and expenses of the winding up of the company before discharging even the debts in respect of which priority is prescribed by S. 230. If, therefore, there is a debt which may reasonably fall within the description of costs and expenses of winding up of the company, the court may provide for priority in payment of that debt as it thinks just. 6. In the winding up of the company, it is open to the liquidators of disclaim land burdened with onerous covenants, of shares or stock in companies, of unprofitable contracts or of any other property that is unsaleable or not readily saleable. The disclaimer operates to determine as from the date of disclaimer the rights, interests and liabilities of the company and the property of the company, in or in respect of the property disclaimed. By S. 230-A, cl. 4, liberty is reserved to persons interested in the property requiring the liquidator to decide whether he will or will not disclaim. It is also open to the court under sub-s. 5 of S. 230-A on the application of any person entitled to the benefit or subject to the burden of a contract made with the company to make an order rescinding the contract on such terms as to payment of damages for non-performance of contracts. It is evident that on the winding up outstanding contracts of the company do not become ipso facto inoperative. The contracts remain binding until disclaimed or rescinded in the manner provided by S. 230-A; but the liability incurred under these contracts is merely an ordinary debt which ranks for claim to payment pro rata along with other creditors. If the debt be regarded reasonably as falling within the description of costs and expenses of winding up of the company, it is open to the court to direct that preferential payment in respect thereof be made; otherwise the debt will be claimable out of the assets of the company pro rata with other ordinary creditors. 7. Distinction has been made by the courts in England where the relevant provisions of the Companies Act are substantially the same that if the liquidator continues in possession of leaseholds for the purpose of the better realization of assets, the lessor will be entitled to payment of the rent in full, as part of the expenses properly incurred by the liquidator, but as observed by Lord Justice Lindley, In re Oak Pits Colliery Co., (1882) 21 Ch D 322 at p. 331.""No authority has yet gone the length of deciding that a landlord is entitled to distrain for or be paid in full rent accruing since the commencement of the winding-up, where the liquidator has done nothing except abstain from trying to get rid of the property which the company holds as lessee." 8. Evidently a distinction is made between property which remains in the occupation of the liquidator after the winding up when the occupation is shown to be for the purpose of liquidation and property which merely remain with the liquidator, he having abstained from trying to get rid of the same and it does not appear or is not shown that the property was used for the purpose of winding up. 9. The High Court held on the facts that the liquidators had remained in occupation of the premises not for the purpose of winding up but "because they could not think of any suitable method of getting rid of the premises in spite of all their desire to do so". It was pointed out that the Bank had closed its business and the liquidators were not carrying on any business after the winding up and the properties were not used by the liquidators for the purpose of liquidation.This conclusion of the High Court on the evidence has not been challenged. The property not having remained with the liquidators for the purpose of liquidation, unless the court passes an order holding that the debt incurred was part of the costs and expenses of liquidation, the rent accruing due since the date of the winding up cannot be claimed in priority over other ordinary debts. 10. We are therefore unable to agree with the High Court that under R. 97 of the Company Rules, if the premises remained in the occupation of the liquidators, not for the purpose of winding up, the landlord is entitled to priority in respect of payment of rent. | 1[ds]It is evident that on the winding up outstanding contracts of the company do not become ipso facto inoperative. The contracts remain binding until disclaimed or rescinded in the manner provided by S. 230-A; but the liability incurred under these contracts is merely an ordinary debt which ranks for claim to payment pro rata along with other creditors. If the debt be regarded reasonably as falling within the description of costs and expenses of winding up of the company, it is open to the court to direct that preferential payment in respect thereof be made; otherwise the debt will be claimable out of the assets of the company pro rata with other ordinary creditors9. The High Court held on the facts that the liquidators had remained in occupation of the premises not for the purpose of winding up but "because they could not think of any suitable method of getting rid of the premises in spite of all their desire to do so". It was pointed out that the Bank had closed its business and the liquidators were not carrying on any business after the winding up and the properties were not used by the liquidators for the purpose of liquidation.This conclusion of the High Court on the evidence has not been challenged. The property not having remained with the liquidators for the purpose of liquidation, unless the court passes an order holding that the debt incurred was part of the costs and expenses of liquidation, the rent accruing due since the date of the winding up cannot be claimed in priority over other ordinary debts10. We are therefore unable to agree with the High Court that under R. 97 of the Company Rules, if the premises remained in the occupation of the liquidators, not for the purpose of winding up, the landlord is entitled to priority in respect of payment of rent. | 1 | 2,334 | 335 | ### Instruction:
Estimate the outcome of the case (positive (1) or negative (0) for the appellant) and then give a reasoned explanation by examining important sentences within the case documentation.
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rules deals with the rent or other payment in arrears till the date of winding up. By the proviso, it is declared that the right of the landlord to claim payment by the company of the rent accruing due thereafter is not to be prejudiced. The proviso merely affirms the right of the landlord to claim payment of rent accruing due since the date of winding up. It does not deal with any question of priority in payment of debts. By S. 246 of the Indian Companies act, 1913, power is conferred upon the High Court to make rules consistent with the Act and the Code of Civil Procedure concerning the mode of proceedings to be had for winding up of t he company and certain other matters. The Legislature has by S. 230 prescribed that certain specified categories of debts shall rank for priority over other debts due by the company and it is not within the competence of the High Court to prescribe by rule a category for priority in payment which is not included in that section. By S. 193 of the Act, the court has, in the event of the assets being insufficient to satisfy the liabilities, indisputably power to make an order for payment out of the assets, of the costs, charges and expenses incurred in the winding up in such order of priority as the court thinks fit, and in exercise of the power conferred by S. 230, sub-cl. 3, the court may direct the company to retain such sums as may be necessary for the cost and expenses of the winding up of the company before discharging even the debts in respect of which priority is prescribed by S. 230. If, therefore, there is a debt which may reasonably fall within the description of costs and expenses of winding up of the company, the court may provide for priority in payment of that debt as it thinks just. 6. In the winding up of the company, it is open to the liquidators of disclaim land burdened with onerous covenants, of shares or stock in companies, of unprofitable contracts or of any other property that is unsaleable or not readily saleable. The disclaimer operates to determine as from the date of disclaimer the rights, interests and liabilities of the company and the property of the company, in or in respect of the property disclaimed. By S. 230-A, cl. 4, liberty is reserved to persons interested in the property requiring the liquidator to decide whether he will or will not disclaim. It is also open to the court under sub-s. 5 of S. 230-A on the application of any person entitled to the benefit or subject to the burden of a contract made with the company to make an order rescinding the contract on such terms as to payment of damages for non-performance of contracts. It is evident that on the winding up outstanding contracts of the company do not become ipso facto inoperative. The contracts remain binding until disclaimed or rescinded in the manner provided by S. 230-A; but the liability incurred under these contracts is merely an ordinary debt which ranks for claim to payment pro rata along with other creditors. If the debt be regarded reasonably as falling within the description of costs and expenses of winding up of the company, it is open to the court to direct that preferential payment in respect thereof be made; otherwise the debt will be claimable out of the assets of the company pro rata with other ordinary creditors. 7. Distinction has been made by the courts in England where the relevant provisions of the Companies Act are substantially the same that if the liquidator continues in possession of leaseholds for the purpose of the better realization of assets, the lessor will be entitled to payment of the rent in full, as part of the expenses properly incurred by the liquidator, but as observed by Lord Justice Lindley, In re Oak Pits Colliery Co., (1882) 21 Ch D 322 at p. 331.""No authority has yet gone the length of deciding that a landlord is entitled to distrain for or be paid in full rent accruing since the commencement of the winding-up, where the liquidator has done nothing except abstain from trying to get rid of the property which the company holds as lessee." 8. Evidently a distinction is made between property which remains in the occupation of the liquidator after the winding up when the occupation is shown to be for the purpose of liquidation and property which merely remain with the liquidator, he having abstained from trying to get rid of the same and it does not appear or is not shown that the property was used for the purpose of winding up. 9. The High Court held on the facts that the liquidators had remained in occupation of the premises not for the purpose of winding up but "because they could not think of any suitable method of getting rid of the premises in spite of all their desire to do so". It was pointed out that the Bank had closed its business and the liquidators were not carrying on any business after the winding up and the properties were not used by the liquidators for the purpose of liquidation.This conclusion of the High Court on the evidence has not been challenged. The property not having remained with the liquidators for the purpose of liquidation, unless the court passes an order holding that the debt incurred was part of the costs and expenses of liquidation, the rent accruing due since the date of the winding up cannot be claimed in priority over other ordinary debts. 10. We are therefore unable to agree with the High Court that under R. 97 of the Company Rules, if the premises remained in the occupation of the liquidators, not for the purpose of winding up, the landlord is entitled to priority in respect of payment of rent.
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It is evident that on the winding up outstanding contracts of the company do not become ipso facto inoperative. The contracts remain binding until disclaimed or rescinded in the manner provided by S. 230-A; but the liability incurred under these contracts is merely an ordinary debt which ranks for claim to payment pro rata along with other creditors. If the debt be regarded reasonably as falling within the description of costs and expenses of winding up of the company, it is open to the court to direct that preferential payment in respect thereof be made; otherwise the debt will be claimable out of the assets of the company pro rata with other ordinary creditors9. The High Court held on the facts that the liquidators had remained in occupation of the premises not for the purpose of winding up but "because they could not think of any suitable method of getting rid of the premises in spite of all their desire to do so". It was pointed out that the Bank had closed its business and the liquidators were not carrying on any business after the winding up and the properties were not used by the liquidators for the purpose of liquidation.This conclusion of the High Court on the evidence has not been challenged. The property not having remained with the liquidators for the purpose of liquidation, unless the court passes an order holding that the debt incurred was part of the costs and expenses of liquidation, the rent accruing due since the date of the winding up cannot be claimed in priority over other ordinary debts10. We are therefore unable to agree with the High Court that under R. 97 of the Company Rules, if the premises remained in the occupation of the liquidators, not for the purpose of winding up, the landlord is entitled to priority in respect of payment of rent.
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The Associated Cement Company Ltd Vs. Shri P. D. Vyas And Others | be impracticable to do so, the draft standing order must be in conformity with the model standing order. It is quite true that this requirement does not mean that the draft standing order must be in identical words but it does mean than in substance it must conform to the model prescribed by the appropriate government. 7. The question which then arises is: was it or was it not open to respondent 2 to consider whether the draft submitted by the appellants should not conform to the model standing order in respect of the topics with which we are concerned in the present appeal?The answer to this question must obviously be in the affirmative. It was not only open to respondent 2 to enquire into the matter but it was clearly his duty to do so before holding that the draft orders were certifiable under S. 4. Now such an enquiry necessarily involves the consideration of the question as to whether it would be practicable to insist upon conformity with the model standing order in regard to the matters in dispute. If respondent 2 was satisfied that it would be practicable to insist upon such conformity it would be within his competence to make the suitable modifications it the draft. If, on the other hand, he took the view that it would not be practicable to insist upon such conformity he would, despite the disparity between the model and the draft, treat the draft as certifiable.In the present case respondent 2 as well as respondent 1 have held that it was practicable to insist upon conformity with the model standing order in regard to the matters, in dispute; and so they have made suitable modifications. Having regard to the relevant provision which we have just considered, it seems difficult to accept the plea that in making the modifications in question respondent 2 and respondent 1 have exceeded their jurisdiction.It is important to make a distinction between considerations of fairness or reasonableness which are excluded from the purview of the enquiry before respondent 2 and respondent 1 from considerations of practicability which are necessarily imported in such an enquiry. The line separating the one from the other may be thin but nevertheless it is a firm and existing line which is statutorily recognised in the respective provisions of the Act. Respondent 2 may not modify the draft on the ground that its provisions are unfair or unreasonable but he can and must modify the draft in matters covered by the model standing order if he is satisfied that conformity with such model standing order is practicable in the circumstance of the case.In our opinion, therefore, the High Court was right in holding that the authorities under the Act had acted within their jurisdiction in making the impugned modifications. 8. We may now refer to the decisions to which our attention was invited by Mr. Kolah. In Guest, Keen, Williams (Private) Ltd. v. P. J. Sterling, 1959-2 Lab LJ 405: (AIR 1959 SC 1279 ), this Court had occasion to consider the effect of a part of the provision contained in S. 4 of the Act as it stood before its amendment in 1956. It is, however, clear that in that case the point raised for our decision now did not fall to be considered. In Electric workers Union v. The U. P. Electric Supply Co., AIR 1949 All 504 , Mr. Justice Wanchoo, who was acting as the appellate authority under the Act, appears to have held that the provision contained in S. 3(2) had nothing to do with the power of the certifying officer to substitute the model for the draft. According to the learned judge the said provision was intended merely to help and guide the employers as to how they should frame their draft standing orders. This decision apparently supports the argument that the certifying officer cannot make any changes in the provisions of the draft where those provisions are clear on the ground that they are not reasonable and fair and that other provisions which may have been provided in the model standing orders should be substituted for them. If, in making these observations, it was intended to decide that, before certifying the draft standing orders submitted by the employer, the certifying officer cannot enquire and decide whether it would be practicable or not to make the provisions in the draft conform to the model standing orders, with respect, we would hold that the said decision is inconsistent with the true effect of the relevant provisions of the Act. We may incidentally add that the observations made by Wanchoo J. in that case have not been approved by the Allahabad High Court in Jiwan Mal and Co. v. Secretary, Kanpur Loha Mills Karamchari Union, AIR 1955 All 581 . In Mysore Kirloskar Employees Association v. Industrial Tribunal, Bangalore, 1959-1 Lah LJ 531: (AIR 195 Mys 235), the Mysore High Court has considered this question and it appears to have concurred more with the view expressed by the Bombay High Court which is the subject-matter of the present appeal that with the observations of Wanchoo J 9. There is one more point to which reference must be made. Mr. Kolah attempted to argue before us that, even if the authorities under the Act had jurisdiction to deal with the matter and examine whether or not it was practicable to insist upon conformity with the model standing orders, the modifications made by them on the merits are impracticable.We have not allowed Mr. Kolah to urge this contention before us because such a plea was not raised by the appellants in their petition for a writ before the Bombay High Court, and it would not be open to them to raise it for the first time before us. Besides, in a petition for a writ of certiorari it would normally not be open to the appellants to challenge the merits of the findings made by the authorities under the Act. | 0[ds]Thus presented the argument is no doubt attractive; but there are some other provisions in the Act which show that the argument based on the said provision of S. 4 cannot succeed. It is, therefore, necessary to consider the other provisions which are material. Before we do so, we would like to add that by a subsequent amendment made in1956, S. 4 now provides that it shall be the function of the certifying officer or the appellate authority to adjudicate upon the fairness or reasonableness of the provisions of any standing orders. N other words, what was expressly excluded from the jurisdiction of the authorities under the Act has now been clearly made their duty, and so the argument based upon the provision as it stood in 1946 is, after the amendment of 1956, purely academicThe cumulative effect of these provisions is that the certifying officer has to be satisfied that the draft standing orders deal with every matter set out in the Schedule and are otherwise in conformity with the provisions of the Act. This latter requirement necessarily imports the consideration specified in S. 3, sub-s. (2), that is to say, the draft standing order must be in conformity with the model standing order which is provided under S. 15 (2) (b) for the purposes of the Act, and, as we have already seen, unless it is shown that it would be impracticable to do so, the draft standing order must be in conformity with the model standing order. It is quite true that this requirement does not mean that the draft standing order must be in identical words but it does mean than in substance it must conform to the model prescribed by the appropriate governmentThe answer to this question must obviously be in the affirmative. It was not only open to respondent 2 to enquire into the matter but it was clearly his duty to do so before holding that the draft orders were certifiable under S.. Now such an enquiry necessarily involves the consideration of the question as to whether it would be practicable to insist upon conformity with the model standing order in regard to the matters in dispute. If respondent 2 was satisfied that it would be practicable to insist upon such conformity it would be within his competence to make the suitable modifications it the draft. If, on the other hand, he took the view that it would not be practicable to insist upon such conformity he would, despite the disparity between the model and the draft, treat the draft as certifiable.In the present case respondent 2 as well as respondent 1 have held that it was practicable to insist upon conformity with the model standing order in regard to the matters, in dispute; and so they have made suitable modifications. Having regard to the relevant provision which we have just considered, it seems difficult to accept the plea that in making the modifications in question respondent 2 and respondent 1 have exceeded their jurisdiction.It is important to make a distinction between considerations of fairness or reasonableness which are excluded from the purview of the enquiry before respondent 2 and respondent 1 from considerations of practicability which are necessarily imported in such an enquiry. The line separating the one from the other may be thin but nevertheless it is a firm and existing line which is statutorily recognised in the respective provisions of the Act. Respondent 2 may not modify the draft on the ground that its provisions are unfair or unreasonable but he can and must modify the draft in matters covered by the model standing order if he is satisfied that conformity with such model standing order is practicable in the circumstance of the case.In our opinion, therefore, the High Court was right in holding that the authorities under the Act had acted within their jurisdiction in making the impugned modificationsThis decision apparently supports the argument that the certifying officer cannot make any changes in the provisions of the draft where those provisions are clear on the ground that they are not reasonable and fair and that other provisions which may have been provided in the model standing orders should be substituted for them. If, in making these observations, it was intended to decide that, before certifying the draft standing orders submitted by the employer, the certifying officer cannot enquire and decide whether it would be practicable or not to make the provisions in the draft conform to the model standing orders, with respect, we would hold that the said decision is inconsistent with the true effect of the relevant provisions of the Act. We may incidentally add that the observations made by Wanchoo J. in that case have not been approved by the Allahabad High Court in Jiwan Mal and Co. v. Secretary, Kanpur Loha Mills Karamchari Union, AIR 1955 All 581 . In Mysore Kirloskar Employees Association v. Industrial Tribunal, Bangalore, 1959-1 Lah LJ 531: (AIR 195 Mys 235), the Mysore High Court has considered this question and it appears to have concurred more with the view expressed by the Bombay High Court which is the subject-matter of the present appeal that with the observations of Wanchoo J9. There is one more point to which reference must be made. Mr. Kolah attempted to argue before us that, even if the authorities under the Act had jurisdiction to deal with the matter and examine whether or not it was practicable to insist upon conformity with the model standing orders, the modifications made by them on the merits are impracticable.We have not allowed Mr. Kolah to urge this contention before us because such a plea was not raised by the appellants in their petition for a writ before the Bombay High Court, and it would not be open to them to raise it for the first time before us. Besides, in a petition for a writ of certiorari it would normally not be open to the appellants to challenge the merits of the findings made by the authorities under the Act. | 0 | 2,680 | 1,084 | ### 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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be impracticable to do so, the draft standing order must be in conformity with the model standing order. It is quite true that this requirement does not mean that the draft standing order must be in identical words but it does mean than in substance it must conform to the model prescribed by the appropriate government. 7. The question which then arises is: was it or was it not open to respondent 2 to consider whether the draft submitted by the appellants should not conform to the model standing order in respect of the topics with which we are concerned in the present appeal?The answer to this question must obviously be in the affirmative. It was not only open to respondent 2 to enquire into the matter but it was clearly his duty to do so before holding that the draft orders were certifiable under S. 4. Now such an enquiry necessarily involves the consideration of the question as to whether it would be practicable to insist upon conformity with the model standing order in regard to the matters in dispute. If respondent 2 was satisfied that it would be practicable to insist upon such conformity it would be within his competence to make the suitable modifications it the draft. If, on the other hand, he took the view that it would not be practicable to insist upon such conformity he would, despite the disparity between the model and the draft, treat the draft as certifiable.In the present case respondent 2 as well as respondent 1 have held that it was practicable to insist upon conformity with the model standing order in regard to the matters, in dispute; and so they have made suitable modifications. Having regard to the relevant provision which we have just considered, it seems difficult to accept the plea that in making the modifications in question respondent 2 and respondent 1 have exceeded their jurisdiction.It is important to make a distinction between considerations of fairness or reasonableness which are excluded from the purview of the enquiry before respondent 2 and respondent 1 from considerations of practicability which are necessarily imported in such an enquiry. The line separating the one from the other may be thin but nevertheless it is a firm and existing line which is statutorily recognised in the respective provisions of the Act. Respondent 2 may not modify the draft on the ground that its provisions are unfair or unreasonable but he can and must modify the draft in matters covered by the model standing order if he is satisfied that conformity with such model standing order is practicable in the circumstance of the case.In our opinion, therefore, the High Court was right in holding that the authorities under the Act had acted within their jurisdiction in making the impugned modifications. 8. We may now refer to the decisions to which our attention was invited by Mr. Kolah. In Guest, Keen, Williams (Private) Ltd. v. P. J. Sterling, 1959-2 Lab LJ 405: (AIR 1959 SC 1279 ), this Court had occasion to consider the effect of a part of the provision contained in S. 4 of the Act as it stood before its amendment in 1956. It is, however, clear that in that case the point raised for our decision now did not fall to be considered. In Electric workers Union v. The U. P. Electric Supply Co., AIR 1949 All 504 , Mr. Justice Wanchoo, who was acting as the appellate authority under the Act, appears to have held that the provision contained in S. 3(2) had nothing to do with the power of the certifying officer to substitute the model for the draft. According to the learned judge the said provision was intended merely to help and guide the employers as to how they should frame their draft standing orders. This decision apparently supports the argument that the certifying officer cannot make any changes in the provisions of the draft where those provisions are clear on the ground that they are not reasonable and fair and that other provisions which may have been provided in the model standing orders should be substituted for them. If, in making these observations, it was intended to decide that, before certifying the draft standing orders submitted by the employer, the certifying officer cannot enquire and decide whether it would be practicable or not to make the provisions in the draft conform to the model standing orders, with respect, we would hold that the said decision is inconsistent with the true effect of the relevant provisions of the Act. We may incidentally add that the observations made by Wanchoo J. in that case have not been approved by the Allahabad High Court in Jiwan Mal and Co. v. Secretary, Kanpur Loha Mills Karamchari Union, AIR 1955 All 581 . In Mysore Kirloskar Employees Association v. Industrial Tribunal, Bangalore, 1959-1 Lah LJ 531: (AIR 195 Mys 235), the Mysore High Court has considered this question and it appears to have concurred more with the view expressed by the Bombay High Court which is the subject-matter of the present appeal that with the observations of Wanchoo J 9. There is one more point to which reference must be made. Mr. Kolah attempted to argue before us that, even if the authorities under the Act had jurisdiction to deal with the matter and examine whether or not it was practicable to insist upon conformity with the model standing orders, the modifications made by them on the merits are impracticable.We have not allowed Mr. Kolah to urge this contention before us because such a plea was not raised by the appellants in their petition for a writ before the Bombay High Court, and it would not be open to them to raise it for the first time before us. Besides, in a petition for a writ of certiorari it would normally not be open to the appellants to challenge the merits of the findings made by the authorities under the Act.
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some other provisions in the Act which show that the argument based on the said provision of S. 4 cannot succeed. It is, therefore, necessary to consider the other provisions which are material. Before we do so, we would like to add that by a subsequent amendment made in1956, S. 4 now provides that it shall be the function of the certifying officer or the appellate authority to adjudicate upon the fairness or reasonableness of the provisions of any standing orders. N other words, what was expressly excluded from the jurisdiction of the authorities under the Act has now been clearly made their duty, and so the argument based upon the provision as it stood in 1946 is, after the amendment of 1956, purely academicThe cumulative effect of these provisions is that the certifying officer has to be satisfied that the draft standing orders deal with every matter set out in the Schedule and are otherwise in conformity with the provisions of the Act. This latter requirement necessarily imports the consideration specified in S. 3, sub-s. (2), that is to say, the draft standing order must be in conformity with the model standing order which is provided under S. 15 (2) (b) for the purposes of the Act, and, as we have already seen, unless it is shown that it would be impracticable to do so, the draft standing order must be in conformity with the model standing order. It is quite true that this requirement does not mean that the draft standing order must be in identical words but it does mean than in substance it must conform to the model prescribed by the appropriate governmentThe answer to this question must obviously be in the affirmative. It was not only open to respondent 2 to enquire into the matter but it was clearly his duty to do so before holding that the draft orders were certifiable under S.. Now such an enquiry necessarily involves the consideration of the question as to whether it would be practicable to insist upon conformity with the model standing order in regard to the matters in dispute. If respondent 2 was satisfied that it would be practicable to insist upon such conformity it would be within his competence to make the suitable modifications it the draft. If, on the other hand, he took the view that it would not be practicable to insist upon such conformity he would, despite the disparity between the model and the draft, treat the draft as certifiable.In the present case respondent 2 as well as respondent 1 have held that it was practicable to insist upon conformity with the model standing order in regard to the matters, in dispute; and so they have made suitable modifications. Having regard to the relevant provision which we have just considered, it seems difficult to accept the plea that in making the modifications in question respondent 2 and respondent 1 have exceeded their jurisdiction.It is important to make a distinction between considerations of fairness or reasonableness which are excluded from the purview of the enquiry before respondent 2 and respondent 1 from considerations of practicability which are necessarily imported in such an enquiry. The line separating the one from the other may be thin but nevertheless it is a firm and existing line which is statutorily recognised in the respective provisions of the Act. Respondent 2 may not modify the draft on the ground that its provisions are unfair or unreasonable but he can and must modify the draft in matters covered by the model standing order if he is satisfied that conformity with such model standing order is practicable in the circumstance of the case.In our opinion, therefore, the High Court was right in holding that the authorities under the Act had acted within their jurisdiction in making the impugned modificationsThis decision apparently supports the argument that the certifying officer cannot make any changes in the provisions of the draft where those provisions are clear on the ground that they are not reasonable and fair and that other provisions which may have been provided in the model standing orders should be substituted for them. If, in making these observations, it was intended to decide that, before certifying the draft standing orders submitted by the employer, the certifying officer cannot enquire and decide whether it would be practicable or not to make the provisions in the draft conform to the model standing orders, with respect, we would hold that the said decision is inconsistent with the true effect of the relevant provisions of the Act. We may incidentally add that the observations made by Wanchoo J. in that case have not been approved by the Allahabad High Court in Jiwan Mal and Co. v. Secretary, Kanpur Loha Mills Karamchari Union, AIR 1955 All 581 . In Mysore Kirloskar Employees Association v. Industrial Tribunal, Bangalore, 1959-1 Lah LJ 531: (AIR 195 Mys 235), the Mysore High Court has considered this question and it appears to have concurred more with the view expressed by the Bombay High Court which is the subject-matter of the present appeal that with the observations of Wanchoo J9. There is one more point to which reference must be made. Mr. Kolah attempted to argue before us that, even if the authorities under the Act had jurisdiction to deal with the matter and examine whether or not it was practicable to insist upon conformity with the model standing orders, the modifications made by them on the merits are impracticable.We have not allowed Mr. Kolah to urge this contention before us because such a plea was not raised by the appellants in their petition for a writ before the Bombay High Court, and it would not be open to them to raise it for the first time before us. Besides, in a petition for a writ of certiorari it would normally not be open to the appellants to challenge the merits of the findings made by the authorities under the Act.
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ASSISTANT GENERAL MANAGER STATE BANK OF INDIA & ORS Vs. RADHEY SHYAM PANDEY | In this background, the consideration that was to pass between the parties assumes significance and a harmonious construction to the Scheme, and the Pension Regulations, therefore, has to be given. 37. The amendment to Regulation 28 can, at best, be said to have been intended to cover the employees with 15 years of service or more but less than 20 years of service. This intention is reflected from the communication dated 5-9-2000 sent by the Government of India, Ministry of Finance, Department of Economic Affairs (Banking Division) to the Personnel Advisor, Indian Banks Association. (emphasis supplied) It opined that the amendment to Regulation 28 of 1995 Regulation intended to cover 15 years of service, i.e., employees with 15 years of service who have not completed 20 years of service. A similar action to amend the Rule was required to be taken by the SBI, but it failed to take it after having floated a similar scheme. It kept it uncertain what would be the position of the rule as on the appointed date, i.e., 31.3.2001. Be that as it may. But it was crystal clear that the incumbent with 15 years of service was eligible for the benefit as provided in the scheme itself. The benefit clause has to be read with the eligibility criteria. Once VRS was formulated and adopted by the SBI in toto, it constituted a complete contractual package in itself. 62. As urged on behalf of SBI if section 23 of the Contract Act is applied, then how it is helpful to the bank, is not understandable. In case it is held that the very scheme was opposed to the law/rules, the entire scheme would fall down. Once it adopted the scheme, invited applications and the employees acted upon it and retired on the basis of the scheme, they cannot be left in lurch. In case its submission is accepted, the Scheme becomes violative of Section 23 of Contact Act, the bank would have to suffer the consequences of striking down of the very scheme and would be required to reinstate the employees and to pay them the salary and other benefits. However, SBI accepted the scheme, it was incumbent upon it to bring the rules in consonance with the similar VRS scheme as was done by other banks. The SBI accepted the scheme on 27.12.2000 without any ifs and buts. Thus, the anomaly was the outcome of the banks inaction to propose and make amendment of rules. In such a scenario, the action of SBI is violative of Articles 14, 16 and 21 of the Constitution. The situation created by itself is not going to benefit the bank to lend support to arbitrary action. The bank was bound to extend the benefits by amending the rules, if necessary, to salvage the situation for itself. Breach of law has been committed by the SBI itself, its action is arbitrary and it cannot be permitted to take advantage of its own wrong. 63. The pension cannot be dealt with arbitrarily and cannot be denied in an unfair manner. The concept of pension was considered in D.S. Nakara & Ors. v. Union of India, (1983) 1 SCC 305 . The right to a pension can be enforced through the court, it observed : 20. The antequated notion of pension being a bounty, a gratuitous payment depending upon the sweet will or grace of the employer not claimable as a right and, therefore, no right to pension can be enforced through Court has been swept under the carpet by the decision of the Constitution Bench in Deokinandan Prasad v. State of Bihar (1971) 2 SCC 330 wherein this Court authoritatively ruled that pension is a right and the payment of it does not depend upon the discretion of the Government but is governed by the rules and a government servant coming within those rules is entitled to claim pension. It was further held that the grant of pension does not depend upon anyones discretion. It is only for the purpose of quantifying the amount having regard to service and other allied matters that it may be necessary for the authority to pass an order to that effect but the right to receive pension flows to the officer not because of any such order but by virtue of the rules. This view was reaffirmed in State of Punjab v. Iqbal Singh, (1976) 2 SCC 1 . 22. In the course of transformation of society from feudal to welfare and as socialistic thinking acquired respectability. State obligation to provide security in old age, an escape from undeserved want was recognised and as a first step pension was treated not only as a reward for past service but with a view to helping the employee to avoid destitution in old age. The quid pro quo was that when the employee was physically and mentally alert, he rendered unto master the best, expecting him to look after him in the fall of life. A retirement system, therefore, exists solely for the purpose of providing benefits. In most of the plans of retirement benefits, everyone who qualifies for normal retirement receives the same amount (see Retirement Systems for Public Employees by Bleakney, p. 33). This Court observed that the principal aim of the socialist State as envisaged in the Preamble is to eliminate inequality. The basic framework of socialism is to provide security in the fall of life to the working people and especially provides security from the cradle to the grave when employees have rendered service in heydays of life, they cannot be destituted in old age, by taking action in an arbitrary manner and for omission to complete obligation assured one. Though there cannot be estoppel against the law but when a bank had the power to amend it, it cannot take shelter of its own inaction and SBI ought to have followed the pursuit of other banks and was required to act in a similar fair manner having accepted the scheme. | 0[ds]So, it assumes significance that what was approved and conveyed, in terms of the IBA scheme, the Banks Boards were permitted to specify any other category as ineligible. The SBI considering its requirement proposed to exclude the Watch and Ward staff as these positions could not be reduced. It was also proposed to exclude the highly skilled and qualified staff from the scheme18. IBAs letter dated 31.8.2000 makes clear the salient features of the VRS scheme that all permanent employees with 15 years of service were eligible to retire. Ineligible persons have also been specified. In unqualified terms, it was mentioned in the annexures that such employees would be entitled to the amount of ex gratia of 60 days salary for each completed year of service or salary for the number of months service is left, whichever is less. Other benefits admissible were gratuity, pension including the commuted value of pension, banks contribution towards provident fund, and leave encashment as per rules. Thus, scheme was to grant pension to all such employees who opted for VRS on completion of 15 years of service and other benefits as specified in the scheme. The Government of India, Ministry of Finance, Department of Economic Affairs, (Banking Division), that it communicated approval vide letter dated 29.8.2000 to IBA, it was sent to the SBI also21. Most significantly, the scheme of the IBA, accepted by the Board on 27.12.2000, was for providing pension on completion of 15 years of service. The pension specified in clause 6 of scheme was to be worked out in terms of the Pension Fund Rules including the commuted value of the pension. It was not mentioned in the VRS adopted by the SBI that the person on completion of 15 years would not be entitled to the benefit of pension. On the other hand, proposal of IBA, as approved by the Government of India, was accepted in toto by SBI. When gauged in terms of the proposals of the IBA, the essential feature was that an employee was entitled to get pension on completion of 15 years of service. The meaning of the expression pension in terms of the rules would be proportionate pension on completion of 15 years of service as per the terms of calculation provided in Rule 23 of the Pension Rules. VRS is an independent contract and the background in which it was floated, pension on completion of 15 years of service was an essential part of the scheme of VRS 2000, as approved by the Government and floated by the IBA and adopted by all the Banks, and Pension Rules were to be amended accordinglyIt is clear from answer that the staff circular dated 30.12.2000 was reiterated. Payment of pension to an employee retiring under VRS would be governed by rules on the relevant date, i.e., 31.3.2001. At the same time, the position of the existing rule was indicated that those employees who had not completed 20 years of pensionable service were not eligible for a pension. It was not clarified what was the meaning and purport of para 6(c) of the scheme. It was not mentioned that an employee would not be entitled to pension on 15 years of service as per the scheme approved by the Government of India and floated by the IBA and adopted by the Central Board of SBI. The above clarification being in form of opinion, could not be said to have caused a modification, amendment, or cancellation of any of the clauses of VRS or resolution passed by the Board, nor it was so stated. It was necessary to state that on completion of 15 years of service, employees would not be paid pension. The existing rule position was known to everybody, whereas the scheme was framed for providing pension on completion of 15 years of service39. In our opinion, the reference in the SBI VRS to the admissible benefits, like pension shall be as per the pension rules, was for the purpose of computation of pension. It is apparent from a reading of the scheme that proportionate pension was admissible to employees as noted in para 49 of O.P. Swarnakar & Ors. (supra). A similar expression was used in the schemes of nationalised banks also. This Court has noted expression in the scheme that pension as per rules to mean for computation of pension. The formula for computation for a pension is provided in Rule 23 of the SBI Pension Rules40. It is of utmost significance that the Central Board in its meeting dated 27.12.2000 accorded approval for the proposals contained in the Memorandum. A bare perusal of the memorandum makes it clear that the letter of IBA dated 31.8.2000 was enclosed as part of the memorandum submitted to the Central Board. In the memorandum, it was mentioned that the Government of India conveyed that they had no objection to the banks placing before their respective Boards of Directors proposals for adopting and implementing the Voluntary Retirement Scheme. It advised that Banks may adopt the scheme after obtaining their Boards approval and implement it in right earnest. The memorandum also contained that the employees who completed 15 years of service were to be the beneficiaries of VRS as approved by the Government of India and conveyed by the IBA. The approval by Government of India and scheme, conveyed by IBA, was to provide for the benefit of pension on completion of 15 years of service. The same was an essential condition of the scheme. The Annexure, which was part of the memorandum, provided inter alia the benefit of pension, including the commuted value of pension without any rider of completion of 20 years period of service. Once SBI accepted the proposals contained in the memorandum, when we gauge the scheme in the light of the subject matter of the memorandum which was unconditionally approved, it became clear and beyond the pale of doubt that in VRS (Annexure B) inasmuch as the expression to provide the benefit of pension as per rules was only for providing the proportionate pensionary benefit of the qualifying service on and above 15 years, rendered by an employee41. The IBA advised the banks for amending the rules. The Government of India, Ministry of Finance, also issued a letter dated 5.9.2001 to the Bank to amend the rules. There was a proposal to amend the rules. After the scheme was implemented in 2000, the nationalised banks, including the Punjab National Bank, amended their rules in 2002 with retrospective effect. However, the fact remains the VRS schemes were implemented by banks governed by the Banking Companies Act, 1970, by making payment of pension though Regulation 28 of Regulation of 1995 provided for 20 years of qualifying service at the relevant time. Once a particular scheme of VRS, based on the recommendations of Committee formed by Government of India, was formulated and floated by IBA. In all fairness, it was required to be implemented in right earnest in that form in which it was approved and adopted by the Board of Directors of SBI on 27.12.2000. In case the Board of Directors were of the opinion that the scheme was not acceptable to them, they could have rejected it or could have stated they reject the proposal for paying pension on completion of 15 years of service which was the essence of a scheme formed to reduce workforce of Bank and for achieving other objectives. Nonetheless, on the contrary, resolution dated 27.12.2000 indicates that the proposals of IBA/Government was approved unconditionally. Thus, in case it was so necessary to amend the pension rules as done by other banks, it was incumbent upon the State Bank of India to amend its rules either after implementation of the scheme as was done by other banks or before giving effect to VRS42. It is also significant to mention that SBI accepted the scheme as approved by the Government and floated by IBA. In case SBI had declined to accept or wanted to modify, it was necessary for it to take approval of Government of India as to its scheme43. Thus, it is apparent that the Central Board of SBI could not have framed a scheme different than the one approved by the Central Government on its own, nor could have implemented it without approval of the Central Government. In case it wanted to modify or amend the scheme, as approved by the Government of India, it was incumbent upon it to send its modified scheme to the Central Government for approval. No scheme for VRS could have been framed without approval of the Government of India. In fact, the Central Board accepted the proposal of IBA, as approved by the Government of India. In case SBIs stand is accepted, its scheme would have been valid as no modification could have been made without approval of the Government of India. In fact, no such modification was made, as held above44. Once it approved the Scheme SBI being an instrumentality of State under Article 12, is bound by the principle of fairness and representation made that it accepted the contents of memorandum and the scheme floated by IBA and invited the applications based on approving the memorandum which contained proposal of pension on rendering 15 years of permanent pensionable service, it could not later on wriggle out of its obligation taking a rigmarole by claiming shelter of the Rules or by not amending the Rules or by issuing a clarification which was fanciful, irrational and contrary to the spirit of the resolution of the Board. It would amount to an unfair and unreasonable action to deprive the employees of the benefit of pension because of the decision taken by the Central Board of Directors45. SBI is bound by resolution of Central Board of Directors. The Scheme was with the approval of the Government of India and accepted, implemented by all the banks in true spirit except by SBI. It cannot be permitted to act unfairly by virtue of having superior bargaining power by issuing vague clarification to the detriment of the economic interest of the employees. Clarification did not have the effect of re-writing or superseding the resolution of the Central Board nor effect of making modifications in the resolution passed by the Central Board of the SBI46. The VRS scheme was not floated by the SBI on its own volition. It was pursuant to an exercise that was undertaken by the IBA in view of the recent developments of modern technology considering the age group of the employees in the bank, the need to have a new skill, and to rationalise the manpower; a decision was taken. It was decided at the Government level to provide pension after completion of 15 years of service as a special measure, the banks were bound to implement it in that manner or not at all. The Central Board of Directors of the SBI accepted the VRS proposal of Government and IBA without any reservation of not providing pension along with other benefits, as mandated in the VRS scheme. The action of the instrumentality of the State cannot be violative of Article 14. It cannot be permitted to act arbitrarily. Articles 15 and 16 provide for equality and provide for an umbrella against discrimination47. Though the Deputy General Manager was authorised by the Central Board of Directors to amend, modify or cancel the VRS. The Rules were amended by other banks later in 2002. It was not stated in answer to the query that under the VRS scheme, a person who has rendered 15 years of qualifying service would not be entitled to a pension. Nor it was so stated in resolution dated 27.12.2000 of the Central Board of SBI. That apart, Deputy General Manager tried to interpret VRS scheme in isolation without considering what was approved by the Board. Not only the scheme but also the memorandum have to be read together to understand resolution of Board. Once the memorandum containing the IBAs proposal of providing pension was approved in absolute terms, the clarification could not be of any value to dilute the otherwise clear and unambiguous resolution of the Board of Directors. The Deputy General Manager did not have any such wide and arbitrary power to defeat the claim of the employees for pension on completion of 15 years of permanent service, which was their right. The action of D.G.M. could not be said to be in accordance with the resolution. The pension was the essence of the scheme, depriving it could not be said to be authorised, such action can only be termed as unfair and unreasonable and patently violative of Articles 14, 16, and 21 of the Constitution of India48. Yet another aspect which cannot be lost sight is that the bank mentioned in the scheme that the benefit would be admissible as per the rule which prevails on the appointed day, i.e., 31.3.2001. Thus, it is apparent that when VRS scheme was floated, it was in contemplation of amendment of rules which was suggested by the IBA and the Government of India in its communication dated 5.9.2001 so that employees were not deprived of the benefit of pension49. The question arises in case the bank accepts the proposal of VRS, and does not alter its rules, can employees be deprived of the benefit of pension in such an unconscionable manner over an event on which they had no control.It would be nothing, but an outcome of unfair and arbitrary act in case the SBI never intended to act upon the scheme it ought not to have accepted it, and once it approved VRS, it was incumbent upon it to amend its rule, if necessary, as was done by other banks in 2002 after scheme worked out in the year 2000. Even otherwise once it accepted the proposal of the Government of India, it would be violative of provisions of Articles 14 and 16 to permit it to wriggle out of its obligation under the guise that the bank did not amend its rules or pension was not admissible as per existing rules, mainly when the scheme provided for eligibility for pension on completion of 15 years, that formed independent contract. If the bank is permitted to get rid of the scheme due to Rule position, then the scheme itself would become void and unenforceable. Bank cannot act in a fanciful manner, particularly with respect to retirement under VRS which was contractual and deny benefit of pension, a right accrued to the employees for receiving the pension in view of the memorandum and the resolution passed by the Central Board of Directors adopting memorandum and the SBI-VRS53. On the basis of aforesaid principles, it is apparent that once the Central Board of Directors accepted the memorandum for making payment of pension, in case it was not accepting the proposal in the memorandum, it ought to have said clearly that it was not ready to accept the proposals of the Government and the IBA and rejects the same. Once it approved the proposals referred to in the memorandum, which were on the basis of IBAs letter and Government of Indias decision it was bound to implement it in true letter and spirit. By accepting the same, binding obligation was created upon the SBI to make payment of pension on completion of 15 years of service. It cannot invalidate its own decision by relying on fact it failed to amend the rule, whereas other Banks did it later on with retrospective effect. They cannot invalidate otherwise valid decision by virtue of exclusive superior power to amend or not to amend the rule and act unfairly and make the entire contract unreasonable based on misrepresentation. It was open to the Board of Directors to reject the proposal. Once it accepted the proposal to make payment of pension on completion of 15 years of service as proposed in the memorandum, though the scheme is tried to be interpreted by the SBI that pension was to be admissible as provided in the rule that refers to proportionate pension as noted by this Court in O.P. Swarnakar & Ors., (supra), and what was decided by Government of India/IBA, was not taken away rather adopted by the Central Board of Directors. The scheme of contractual nature has to be read in the context and in the backdrop of facts and what has been resolved by the Board of Directors. There is no ambiguity with respect to the admissibility of pension when the memorandum and the scheme are read together. In case of ambiguity and even if two interpretations are possible in the backdrop of facts of the case, one in favour of the employees has to be adopted and so-called clarification dated 11.1.2000 even if considered in the manner so as to deny the benefit of pension, has to be held to be unenforceable, illegal and contrary to law54. It is apparent from the eligibility clause of the VRS scheme that eligibility is provided for the employees having 15 years of pensionable service and they will be entitled for benefits as provided in the scheme. The eligibility clause, when read with clauses providing the benefit, i.e., clauses 5 and 6 of the scheme, leaves no room for any doubt and makes it clear that employees with 15 years of service were treated as eligible to claim the benefit of the scheme floated by SBI. It was not the provision in the VRS scheme that incumbents having completed 20 years of service would be entitled for pensionary benefits. The scheme was carved out specially for attracting the employees by providing pension and other benefits to eligible persons like ex gratia, gratuity, pension and leave encashment. Deprivation of pension would make them ineligible for the benefits and would run repugnant to the eligibility clause55. The submission raised on behalf of the SBI that the draft scheme nowhere stipulated that 15 years service would be the eligibility or that on completion of 15 years service, the incumbent would be eligible for pension, is factually incorrect. It is apparent from the material circumstances, documents, and correspondence that the decision was taken at all levels including the one by the Central Board of Directors of SBI, that the benefit of pension was to be given to the employees on completion of 15 years of service. In that perspective, vagueness of scheme of SBI, if any, can be of no advantage as it is clear beyond the pale of doubt that pension was heart and soul of the scheme with ex gratia on completion of 15 years of service. It is due to the reason that the benefit was to be accorded to the incumbents having completed 15 years of service, Regulation 28 as applicable to other nationalised banks was proposed to be modified as reflected in the letter of IBA dated 11.12.2000 and Government of India letter dated 5.9.2000. Later on, the regulation was amended in 2002 after the scheme had already been implemented in right earnest. There was not even an iota of doubt that VRS was to give benefits to all eligible employees having completed 15 years of service. It was apparent from the letter dated 29.12.2000 of SBI that the guidelines of IBA were approved by the Central Board of Directors in its meeting dated 27.12.200062. As urged on behalf of SBI if section 23 of the Contract Act is applied, then how it is helpful to the bank, is not understandable. In case it is held that the very scheme was opposed to the law/rules, the entire scheme would fall down. Once it adopted the scheme, invited applications and the employees acted upon it and retired on the basis of the scheme, they cannot be left in lurch. In case its submission is accepted, the Scheme becomes violative of Section 23 of Contact Act, the bank would have to suffer the consequences of striking down of the very scheme and would be required to reinstate the employees and to pay them the salary and other benefits. However, SBI accepted the scheme, it was incumbent upon it to bring the rules in consonance with the similar VRS scheme as was done by other banks. The SBI accepted the scheme on 27.12.2000 without any ifs and buts. Thus, the anomaly was the outcome of the banks inaction to propose and make amendment of rules. In such a scenario, the action of SBI is violative of Articles 14, 16 and 21 of the Constitution. The situation created by itself is not going to benefit the bank to lend support to arbitrary action. The bank was bound to extend the benefits by amending the rules, if necessary, to salvage the situation for itself. Breach of law has been committed by the SBI itself, its action is arbitrary and it cannot be permitted to take advantage of its own wrong63. The pension cannot be dealt with arbitrarily and cannot be denied in an unfair mannerThe concept of pension was considered in D.S. Nakara & Ors. v. Union of India, (1983) 1 SCC 305 . The right to a pension can be enforced through the court, it observed :20. The antequated notion of pension being a bounty, a gratuitous payment depending upon the sweet will or grace of the employer not claimable as a right and, therefore, no right to pension can be enforced through Court has been swept under the carpet by the decision of the Constitution Bench in Deokinandan Prasad v. State of Bihar (1971) 2 SCC 330 wherein this Court authoritatively ruled that pension is a right and the payment of it does not depend upon the discretion of the Government but is governed by the rules and a government servant coming within those rules is entitled to claim pension. It was further held that the grant of pension does not depend upon anyones discretion. It is only for the purpose of quantifying the amount having regard to service and other allied matters that it may be necessary for the authority to pass an order to that effect but the right to receive pension flows to the officer not because of any such order but by virtue of the rules. This view was reaffirmed in State of Punjab v. Iqbal Singh, (1976) 2 SCC 1 . 22. In the course of transformation of society from feudal to welfare and as socialistic thinking acquired respectability. State obligation to provide security in old age, an escape from undeserved want was recognised and as a first step pension was treated not only as a reward for past service but with a view to helping the employee to avoid destitution in old age. The quid pro quo was that when the employee was physically and mentally alert, he rendered unto master the best, expecting him to look after him in the fall of life. A retirement system, therefore, exists solely for the purpose of providing benefits. In most of the plans of retirement benefits, everyone who qualifies for normal retirement receives the same amount (see Retirement Systems for Public Employees by Bleakney, p. 33)This Court observed that the principal aim of the socialist State as envisaged in the Preamble is to eliminate inequality. The basic framework of socialism is to provide security in the fall of life to the working people and especially provides security from the cradle to the grave when employees have rendered service in heydays of life, they cannot be destituted in old age, by taking action in an arbitrary manner and for omission to complete obligation assured one. Though there cannot be estoppel against the law but when a bank had the power to amend it, it cannot take shelter of its own inaction and SBI ought to have followed the pursuit of other banks and was required to act in a similar fair manner having accepted the scheme | 0 | 28,682 | 4,326 | ### Instruction:
Decide if the appeal in the case proceeding is more likely to be successful (1) or unsuccessful (0), and then justify your decision by focusing on essential sentences in the document.
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In this background, the consideration that was to pass between the parties assumes significance and a harmonious construction to the Scheme, and the Pension Regulations, therefore, has to be given. 37. The amendment to Regulation 28 can, at best, be said to have been intended to cover the employees with 15 years of service or more but less than 20 years of service. This intention is reflected from the communication dated 5-9-2000 sent by the Government of India, Ministry of Finance, Department of Economic Affairs (Banking Division) to the Personnel Advisor, Indian Banks Association. (emphasis supplied) It opined that the amendment to Regulation 28 of 1995 Regulation intended to cover 15 years of service, i.e., employees with 15 years of service who have not completed 20 years of service. A similar action to amend the Rule was required to be taken by the SBI, but it failed to take it after having floated a similar scheme. It kept it uncertain what would be the position of the rule as on the appointed date, i.e., 31.3.2001. Be that as it may. But it was crystal clear that the incumbent with 15 years of service was eligible for the benefit as provided in the scheme itself. The benefit clause has to be read with the eligibility criteria. Once VRS was formulated and adopted by the SBI in toto, it constituted a complete contractual package in itself. 62. As urged on behalf of SBI if section 23 of the Contract Act is applied, then how it is helpful to the bank, is not understandable. In case it is held that the very scheme was opposed to the law/rules, the entire scheme would fall down. Once it adopted the scheme, invited applications and the employees acted upon it and retired on the basis of the scheme, they cannot be left in lurch. In case its submission is accepted, the Scheme becomes violative of Section 23 of Contact Act, the bank would have to suffer the consequences of striking down of the very scheme and would be required to reinstate the employees and to pay them the salary and other benefits. However, SBI accepted the scheme, it was incumbent upon it to bring the rules in consonance with the similar VRS scheme as was done by other banks. The SBI accepted the scheme on 27.12.2000 without any ifs and buts. Thus, the anomaly was the outcome of the banks inaction to propose and make amendment of rules. In such a scenario, the action of SBI is violative of Articles 14, 16 and 21 of the Constitution. The situation created by itself is not going to benefit the bank to lend support to arbitrary action. The bank was bound to extend the benefits by amending the rules, if necessary, to salvage the situation for itself. Breach of law has been committed by the SBI itself, its action is arbitrary and it cannot be permitted to take advantage of its own wrong. 63. The pension cannot be dealt with arbitrarily and cannot be denied in an unfair manner. The concept of pension was considered in D.S. Nakara & Ors. v. Union of India, (1983) 1 SCC 305 . The right to a pension can be enforced through the court, it observed : 20. The antequated notion of pension being a bounty, a gratuitous payment depending upon the sweet will or grace of the employer not claimable as a right and, therefore, no right to pension can be enforced through Court has been swept under the carpet by the decision of the Constitution Bench in Deokinandan Prasad v. State of Bihar (1971) 2 SCC 330 wherein this Court authoritatively ruled that pension is a right and the payment of it does not depend upon the discretion of the Government but is governed by the rules and a government servant coming within those rules is entitled to claim pension. It was further held that the grant of pension does not depend upon anyones discretion. It is only for the purpose of quantifying the amount having regard to service and other allied matters that it may be necessary for the authority to pass an order to that effect but the right to receive pension flows to the officer not because of any such order but by virtue of the rules. This view was reaffirmed in State of Punjab v. Iqbal Singh, (1976) 2 SCC 1 . 22. In the course of transformation of society from feudal to welfare and as socialistic thinking acquired respectability. State obligation to provide security in old age, an escape from undeserved want was recognised and as a first step pension was treated not only as a reward for past service but with a view to helping the employee to avoid destitution in old age. The quid pro quo was that when the employee was physically and mentally alert, he rendered unto master the best, expecting him to look after him in the fall of life. A retirement system, therefore, exists solely for the purpose of providing benefits. In most of the plans of retirement benefits, everyone who qualifies for normal retirement receives the same amount (see Retirement Systems for Public Employees by Bleakney, p. 33). This Court observed that the principal aim of the socialist State as envisaged in the Preamble is to eliminate inequality. The basic framework of socialism is to provide security in the fall of life to the working people and especially provides security from the cradle to the grave when employees have rendered service in heydays of life, they cannot be destituted in old age, by taking action in an arbitrary manner and for omission to complete obligation assured one. Though there cannot be estoppel against the law but when a bank had the power to amend it, it cannot take shelter of its own inaction and SBI ought to have followed the pursuit of other banks and was required to act in a similar fair manner having accepted the scheme.
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years service would be the eligibility or that on completion of 15 years service, the incumbent would be eligible for pension, is factually incorrect. It is apparent from the material circumstances, documents, and correspondence that the decision was taken at all levels including the one by the Central Board of Directors of SBI, that the benefit of pension was to be given to the employees on completion of 15 years of service. In that perspective, vagueness of scheme of SBI, if any, can be of no advantage as it is clear beyond the pale of doubt that pension was heart and soul of the scheme with ex gratia on completion of 15 years of service. It is due to the reason that the benefit was to be accorded to the incumbents having completed 15 years of service, Regulation 28 as applicable to other nationalised banks was proposed to be modified as reflected in the letter of IBA dated 11.12.2000 and Government of India letter dated 5.9.2000. Later on, the regulation was amended in 2002 after the scheme had already been implemented in right earnest. There was not even an iota of doubt that VRS was to give benefits to all eligible employees having completed 15 years of service. It was apparent from the letter dated 29.12.2000 of SBI that the guidelines of IBA were approved by the Central Board of Directors in its meeting dated 27.12.200062. As urged on behalf of SBI if section 23 of the Contract Act is applied, then how it is helpful to the bank, is not understandable. In case it is held that the very scheme was opposed to the law/rules, the entire scheme would fall down. Once it adopted the scheme, invited applications and the employees acted upon it and retired on the basis of the scheme, they cannot be left in lurch. In case its submission is accepted, the Scheme becomes violative of Section 23 of Contact Act, the bank would have to suffer the consequences of striking down of the very scheme and would be required to reinstate the employees and to pay them the salary and other benefits. However, SBI accepted the scheme, it was incumbent upon it to bring the rules in consonance with the similar VRS scheme as was done by other banks. The SBI accepted the scheme on 27.12.2000 without any ifs and buts. Thus, the anomaly was the outcome of the banks inaction to propose and make amendment of rules. In such a scenario, the action of SBI is violative of Articles 14, 16 and 21 of the Constitution. The situation created by itself is not going to benefit the bank to lend support to arbitrary action. The bank was bound to extend the benefits by amending the rules, if necessary, to salvage the situation for itself. Breach of law has been committed by the SBI itself, its action is arbitrary and it cannot be permitted to take advantage of its own wrong63. The pension cannot be dealt with arbitrarily and cannot be denied in an unfair mannerThe concept of pension was considered in D.S. Nakara & Ors. v. Union of India, (1983) 1 SCC 305 . The right to a pension can be enforced through the court, it observed :20. The antequated notion of pension being a bounty, a gratuitous payment depending upon the sweet will or grace of the employer not claimable as a right and, therefore, no right to pension can be enforced through Court has been swept under the carpet by the decision of the Constitution Bench in Deokinandan Prasad v. State of Bihar (1971) 2 SCC 330 wherein this Court authoritatively ruled that pension is a right and the payment of it does not depend upon the discretion of the Government but is governed by the rules and a government servant coming within those rules is entitled to claim pension. It was further held that the grant of pension does not depend upon anyones discretion. It is only for the purpose of quantifying the amount having regard to service and other allied matters that it may be necessary for the authority to pass an order to that effect but the right to receive pension flows to the officer not because of any such order but by virtue of the rules. This view was reaffirmed in State of Punjab v. Iqbal Singh, (1976) 2 SCC 1 . 22. In the course of transformation of society from feudal to welfare and as socialistic thinking acquired respectability. State obligation to provide security in old age, an escape from undeserved want was recognised and as a first step pension was treated not only as a reward for past service but with a view to helping the employee to avoid destitution in old age. The quid pro quo was that when the employee was physically and mentally alert, he rendered unto master the best, expecting him to look after him in the fall of life. A retirement system, therefore, exists solely for the purpose of providing benefits. In most of the plans of retirement benefits, everyone who qualifies for normal retirement receives the same amount (see Retirement Systems for Public Employees by Bleakney, p. 33)This Court observed that the principal aim of the socialist State as envisaged in the Preamble is to eliminate inequality. The basic framework of socialism is to provide security in the fall of life to the working people and especially provides security from the cradle to the grave when employees have rendered service in heydays of life, they cannot be destituted in old age, by taking action in an arbitrary manner and for omission to complete obligation assured one. Though there cannot be estoppel against the law but when a bank had the power to amend it, it cannot take shelter of its own inaction and SBI ought to have followed the pursuit of other banks and was required to act in a similar fair manner having accepted the scheme
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Pishora Singh Vs. Bank of Punjab | 1. We have heard learned counsel for the parties. 2. The appellant had obtained two FDRs for Rs. 1,00,000/- (Rupees one lakh only) each on 24th February, 1996. Thereafter, he also obtained another FDR on 8th March, 1996 for an amount of Rs. 2,00,000/- (Rupees two lakhs only). The first set of FDRs obtained by the appellant on 24th February, 1996 were renewed by the respondent-Bank on 10th April, 1996 and on 7th June, 1996. 3. When the appellant went to encash two FDRs that were originally issued on 24th February, 1996 as well as the FDR issued on 8th March, 1996, the respondent-Bank refused to encash the second FDR for Rs. 2,00,000/- (Rupees two lakhs only) on the ground that it was issued to the appellant without any consideration. There is no dispute with regard to the encashment of the first set of two FDRs issued originally to the appellant on 24th February, 1996. 4. The complainant preferred a complaint before the District Consumer Forum with regard to the failure of the respondent-Bank to encash the FDR for Rs. 2,00,000/- (Rupees two lakhs only) issued on 8th March, 1996. On a consideration of the material placed before the District Consumer Forum as well as the evidence on record, the District Consumer Forum concluded that the appellant was entitled to encashment of the FDR and it passed appropriate orders in this regard. It was also held that the appellant was entitled to payment of interest payable under the FDR. 5. Feeling aggrieved, the respondent-Bank preferred an appeal before the State Commission which was allowed and it was held that the appellant before us was not entitled to encashment of the FDR issued on 8th March, 1996. 6. Against the order passed by the State Commission, the appellant preferred a revision petition which was dismissed by the National Commission by the impugned order dated 2nd June, 2004. It is under these circumstances that the appellant is now before us. 7. It is submitted by learned counsel for the respondent-Bank that the FDR issued on 8th March, 1996 was issued by mistake and it is because of this mistake that the respondent-Bank declined to encash the FDR. On our asking, we have been informed that no action has been taken against the defaulting officer for having allegedly issued FDR on 8th March, 1996 without any consideration. 8. It is further submitted by learned counsel for the respondent-Bank that the appellant had only Rs. 2,00,000/- (Rupees two lakhs only) in his account and that amount was adjusted against the first set of FDRs issued on 24th February, 1996 and that the appellant did not have any amount to the extent of Rs. 2,00,000/- (Rupees two lakhs only) which would enable the Bank to issue the second FDR on 8th March, 1996. 9. Be that as it may, we do not see nor is there any discussion in the orders before us giving the basis on which the second FDR was issued. Assuming the FDR dated 8th March, 1996 was issued to the appellant fraudulently, it was all the more obligatory on the respondent-Bank to have taken action against its employees. As far as the appellant is concerned, the only document that he had in his possession and rightly so was the FDR issued to him by the respondent - Bank. The appellant cannot be expected to produce anything more than what is given to him by the Bank which is the FDR receipt itself. 10. Under the circumstances, we are of the view that the State Commission as well as the National Commission were in error in dismissing the complaint filed by the appellant. | 1[ds]9. Be that as it may, we do not see nor is there any discussion in the orders before us giving the basis on which the second FDR was issued. Assuming the FDR dated 8th March, 1996 was issued to the appellant fraudulently, it was all the more obligatory on thek to have taken action against its employees. As far as the appellant is concerned, the only document that he had in his possession and rightly so was the FDR issued to him by the respondentBank. The appellant cannot be expected to produce anything more than what is given to him by the Bank which is the FDR receipt itself | 1 | 686 | 123 | ### Instruction:
Hypothesize the court's verdict (affirmation (1) or negation (0) of the appeal), and then clarify this hypothesis by interpreting significant sentences from the case proceeding.
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1. We have heard learned counsel for the parties. 2. The appellant had obtained two FDRs for Rs. 1,00,000/- (Rupees one lakh only) each on 24th February, 1996. Thereafter, he also obtained another FDR on 8th March, 1996 for an amount of Rs. 2,00,000/- (Rupees two lakhs only). The first set of FDRs obtained by the appellant on 24th February, 1996 were renewed by the respondent-Bank on 10th April, 1996 and on 7th June, 1996. 3. When the appellant went to encash two FDRs that were originally issued on 24th February, 1996 as well as the FDR issued on 8th March, 1996, the respondent-Bank refused to encash the second FDR for Rs. 2,00,000/- (Rupees two lakhs only) on the ground that it was issued to the appellant without any consideration. There is no dispute with regard to the encashment of the first set of two FDRs issued originally to the appellant on 24th February, 1996. 4. The complainant preferred a complaint before the District Consumer Forum with regard to the failure of the respondent-Bank to encash the FDR for Rs. 2,00,000/- (Rupees two lakhs only) issued on 8th March, 1996. On a consideration of the material placed before the District Consumer Forum as well as the evidence on record, the District Consumer Forum concluded that the appellant was entitled to encashment of the FDR and it passed appropriate orders in this regard. It was also held that the appellant was entitled to payment of interest payable under the FDR. 5. Feeling aggrieved, the respondent-Bank preferred an appeal before the State Commission which was allowed and it was held that the appellant before us was not entitled to encashment of the FDR issued on 8th March, 1996. 6. Against the order passed by the State Commission, the appellant preferred a revision petition which was dismissed by the National Commission by the impugned order dated 2nd June, 2004. It is under these circumstances that the appellant is now before us. 7. It is submitted by learned counsel for the respondent-Bank that the FDR issued on 8th March, 1996 was issued by mistake and it is because of this mistake that the respondent-Bank declined to encash the FDR. On our asking, we have been informed that no action has been taken against the defaulting officer for having allegedly issued FDR on 8th March, 1996 without any consideration. 8. It is further submitted by learned counsel for the respondent-Bank that the appellant had only Rs. 2,00,000/- (Rupees two lakhs only) in his account and that amount was adjusted against the first set of FDRs issued on 24th February, 1996 and that the appellant did not have any amount to the extent of Rs. 2,00,000/- (Rupees two lakhs only) which would enable the Bank to issue the second FDR on 8th March, 1996. 9. Be that as it may, we do not see nor is there any discussion in the orders before us giving the basis on which the second FDR was issued. Assuming the FDR dated 8th March, 1996 was issued to the appellant fraudulently, it was all the more obligatory on the respondent-Bank to have taken action against its employees. As far as the appellant is concerned, the only document that he had in his possession and rightly so was the FDR issued to him by the respondent - Bank. The appellant cannot be expected to produce anything more than what is given to him by the Bank which is the FDR receipt itself. 10. Under the circumstances, we are of the view that the State Commission as well as the National Commission were in error in dismissing the complaint filed by the appellant.
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1
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9. Be that as it may, we do not see nor is there any discussion in the orders before us giving the basis on which the second FDR was issued. Assuming the FDR dated 8th March, 1996 was issued to the appellant fraudulently, it was all the more obligatory on thek to have taken action against its employees. As far as the appellant is concerned, the only document that he had in his possession and rightly so was the FDR issued to him by the respondentBank. The appellant cannot be expected to produce anything more than what is given to him by the Bank which is the FDR receipt itself
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Rup Chand Gupta Vs. Raghuvanshi Private Limited & Anr | contest the suit, the actual refraining by Land and Bricks from contesting the suit or the act of Raghuvanshi in not impleading the appellant be said to be an improper act or improper refraining from an act? We do not see how any of these things can be said to be improper.12. Taking the last action first, viz., Raghuvanshis omission to implead the appellant, it is quite clear that the law does not require that the sub-lessee need be made a party. It has been rightly pointed out by the High Court that in all cases where the landlord institutes a suit against the lessee for possession of the land on the basis of a valid notice to quit served on the lessee and does not impleaded the sub-lessee as a party to the suit, the object of the landlord is to eject the sub-lessee from the land in execution of the decree and such an object is quite legitimate. The decree in such a suit would bind the sub-lessee. This may act harshly on the sub-lessee; but this is a position well understood by him when he took the sub-lease. The law allow this and so the omission cannot be said to be an improper act.13. Nor is it possible, in our opinion, to say that the omission of Land and Bricks to contest the ejetment suit was and improper act. It has not been suggested that Land and Bricks had a good defence against the claim for ejectment but did not take it for the mere purpose of helping Raghuvanshi to get possession of the land. Even if it had a good defence, we do not think was bound to take it. It may be that if Land and Bricks had a defence and the defence was such which if brought to the notice of the court would have stood in the way of any decree being passed in favour of Raghuvanshi there would be reason to say that the omission to implead the sub-lessee was actuated by a dishonest purpose and consequently was improper. It is not necessary for us however to consider the matter further as neither in the courts below nor before us was any suggestion made on behalf of the appellant sub-lessee that Land and Bricks had even a plausible defence against Raghuvanshis claim for ejectment.14. We have already mentioned the fact that one of the circumstances which the plaintiff claimed showed collusion was that the Calcutta. Thika Tenancy Act stood in the way of the plaintiffs eviction of Land and Bricks. It is unnecessray for us to decide whether or not the appellant was a Thika Tenant within the meaning of the Calcutta Thika Tenancy Act. 1949. If he was, that Act would undoubtedly have protected him against eviction by Land and Bricks. That Act could however have no operation in a suit brought by Raghuvanshi against Land and Bricks. It has been held by the High Court of Calcutta that the Thika Tenancy Act was designed to protect the Thika Tenant from eviction by his landlord only and not against eviction froman source. (Shamsuddin Ahmed v. Dinanath Mullick, A.F.O.D. No. 123 of 1957 D/- 13-8-1959 (Cal). The correctness of this view has not been challenged before us. Nor is it the appellants case the Land and Bricks was a Thika Tenant of Raghuvanshi. Obviously, this could not be suggested, because Land and Bricks never erected any structure at all. (See the definition of a Thika Tenant in S. 2 cl.5 of the Calcutta Thika Tenancy Act, 1949). On the materials on the record we are satisfied that there was no defence that Land and Bricks could have raised for resisting Raghuvanshis claim for ejectment.15. The crux of the matter is : Was this attempt by Raghuvanshi to get possession of the land a dishomest or sinister purpose? We are asked by Mr. Desai to spell dishonesty out of the fact that the directors of Raghuvanshi and Land and Bricks were common and so the persons who were interested in Land and Bricks were also interested in seeing that Raghuvanshi had not to suffer for forfeiture of his lease for failure to comply with the covenant to construct a building by 1960. All this may be taken to be true. But, we are unable to see how this would make Raghuvanshis attempt to get possession of the land dishomest or sinister. It is not as if Raghuvanshi did not actually want go get possession of the land but wanted to help Land and Bricks to get possession. It has also be remembered that the identify of the directors and the identify of the main shareholders does not in any way affect the position that in law and in fact Raghuvanshi and Land and Bricks were distinct and separate entities. It is not even remotely suggested that Raghuvanshi and Land and Bricks were really one and the same persons with two names. If that had been so, there might have been good reason for thinking that it was in an attempt to surmount the obstacle presented by the Calcutta Thika Tenancy Act, 1949, that this mode of Raghuvanshi suing Land and bricks for ejectment was recorded to. Indeed, if Raghuvanshi an Land bricks were one and the same person possession of Land and Bricks would be possession of Raghuvanshi and a suit by Raghuvanshi to eject Land and Bricks would be meaningless. But, that is not the appellants case. It appears from the High Courts judgment that the plaintiffs counsel made it plain before the court that it was not his clients case that the plaintiffs real lessor was Raghuvanshi Private Ltd., and not Land and Brickis Ltd. In the present appeal before us also Mr. Desai argued on the basis that Land and Bricks and Raghuvanshi were distinct entities and that the lease of Land and Bricks under Raghuvanshi was a real subsisting lease at the time of Suit No. 3283 of 1955. | 0[ds]11. There is little doubt that in the present case Land and Bricks agreed with Raghuvanshi that the suit for ejectment would not be contested. When the suit was instituted Land and Bricks did not contest and the ex parte decree was passed. Raghuvanshi did not implead this appellant in that suit. Can any of these acts, viz., Land and Brick agreeing with Raghuvanshi that it would not contest the suit, the actual refraining by Land and Bricks from contesting the suit or the act of Raghuvanshi in not impleading the appellant be said to be an improper act or improper refraining from an act? We do not see how any of these things can be said to be improper.12. Taking the last action first, viz., Raghuvanshis omission to implead the appellant, it is quite clear that the law does not require that the sub-lessee need be made a party. It has been rightly pointed out by the High Court that in all cases where the landlord institutes a suit against the lessee for possession of the land on the basis of a valid notice to quit served on the lessee and does not impleaded the sub-lessee as a party to the suit, the object of the landlord is to eject the sub-lessee from the land in execution of the decree and such an object is quite legitimate. The decree in such a suit would bind the sub-lessee. This may act harshly on the sub-lessee; but this is a position well understood by him when he took the sub-lease. The law allow this and so the omission cannot be said to be an improper act.13. Nor is it possible, in our opinion, to say that the omission of Land and Bricks to contest the ejetment suit was and improper act. It has not been suggested that Land and Bricks had a good defence against the claim for ejectment but did not take it for the mere purpose of helping Raghuvanshi to get possession of the land. Even if it had a good defence, we do not think was bound to take it. It may be that if Land and Bricks had a defence and the defence was such which if brought to the notice of the court would have stood in the way of any decree being passed in favour of Raghuvanshi there would be reason to say that the omission to implead the sub-lessee was actuated by a dishonest purpose and consequently was improper. It is not necessary for us however to consider the matter further as neither in the courts below nor before us was any suggestion made on behalf of the appellant sub-lessee that Land and Bricks had even a plausible defence against Raghuvanshis claim for ejectment.ejectment.15. The crux of the matter is : Was this attempt by Raghuvanshi to get possession of the land a dishomest or sinister purpose? We are asked by Mr. Desai to spell dishonesty out of the fact that the directors of Raghuvanshi and Land and Bricks were common and so the persons who were interested in Land and Bricks were also interested in seeing that Raghuvanshi had not to suffer for forfeiture of his lease for failure to comply with the covenant to construct a building by 1960. All this may be taken to be true. But, we are unable to see how this would make Raghuvanshis attempt to get possession of the land dishomest or sinister. It is not as if Raghuvanshi did not actually want go get possession of the land but wanted to help Land and Bricks to get possession. It has also be remembered that the identify of the directors and the identify of the main shareholders does not in any way affect the position that in law and in fact Raghuvanshi and Land and Bricks were distinct and separate entities. It is not even remotely suggested that Raghuvanshi and Land and Bricks were really one and the same persons with two names. If that had been so, there might have been good reason for thinking that it was in an attempt to surmount the obstacle presented by the Calcutta Thika Tenancy Act, 1949, that this mode of Raghuvanshi suing Land and bricks for ejectment was recorded to. Indeed, if Raghuvanshi an Land bricks were one and the same person possession of Land and Bricks would be possession of Raghuvanshi and a suit by Raghuvanshi to eject Land and Bricks would be meaningless. But, that is not the appellants case. It appears from the High Courts judgment that the plaintiffs counsel made it plain before the court that it was not his clients case that the plaintiffs real lessor was Raghuvanshi Private Ltd., and not Land and Brickis Ltd.Thus the mere fact that the defendant agrees with the plaintiff that if a suit is brought he would not defend it, would not necessarily prove collusion. It is only if this agreement is done improperly in the sense that a dishonest purpose is intended to be achieved that they can be said to have colluded. | 0 | 2,554 | 899 | ### 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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contest the suit, the actual refraining by Land and Bricks from contesting the suit or the act of Raghuvanshi in not impleading the appellant be said to be an improper act or improper refraining from an act? We do not see how any of these things can be said to be improper.12. Taking the last action first, viz., Raghuvanshis omission to implead the appellant, it is quite clear that the law does not require that the sub-lessee need be made a party. It has been rightly pointed out by the High Court that in all cases where the landlord institutes a suit against the lessee for possession of the land on the basis of a valid notice to quit served on the lessee and does not impleaded the sub-lessee as a party to the suit, the object of the landlord is to eject the sub-lessee from the land in execution of the decree and such an object is quite legitimate. The decree in such a suit would bind the sub-lessee. This may act harshly on the sub-lessee; but this is a position well understood by him when he took the sub-lease. The law allow this and so the omission cannot be said to be an improper act.13. Nor is it possible, in our opinion, to say that the omission of Land and Bricks to contest the ejetment suit was and improper act. It has not been suggested that Land and Bricks had a good defence against the claim for ejectment but did not take it for the mere purpose of helping Raghuvanshi to get possession of the land. Even if it had a good defence, we do not think was bound to take it. It may be that if Land and Bricks had a defence and the defence was such which if brought to the notice of the court would have stood in the way of any decree being passed in favour of Raghuvanshi there would be reason to say that the omission to implead the sub-lessee was actuated by a dishonest purpose and consequently was improper. It is not necessary for us however to consider the matter further as neither in the courts below nor before us was any suggestion made on behalf of the appellant sub-lessee that Land and Bricks had even a plausible defence against Raghuvanshis claim for ejectment.14. We have already mentioned the fact that one of the circumstances which the plaintiff claimed showed collusion was that the Calcutta. Thika Tenancy Act stood in the way of the plaintiffs eviction of Land and Bricks. It is unnecessray for us to decide whether or not the appellant was a Thika Tenant within the meaning of the Calcutta Thika Tenancy Act. 1949. If he was, that Act would undoubtedly have protected him against eviction by Land and Bricks. That Act could however have no operation in a suit brought by Raghuvanshi against Land and Bricks. It has been held by the High Court of Calcutta that the Thika Tenancy Act was designed to protect the Thika Tenant from eviction by his landlord only and not against eviction froman source. (Shamsuddin Ahmed v. Dinanath Mullick, A.F.O.D. No. 123 of 1957 D/- 13-8-1959 (Cal). The correctness of this view has not been challenged before us. Nor is it the appellants case the Land and Bricks was a Thika Tenant of Raghuvanshi. Obviously, this could not be suggested, because Land and Bricks never erected any structure at all. (See the definition of a Thika Tenant in S. 2 cl.5 of the Calcutta Thika Tenancy Act, 1949). On the materials on the record we are satisfied that there was no defence that Land and Bricks could have raised for resisting Raghuvanshis claim for ejectment.15. The crux of the matter is : Was this attempt by Raghuvanshi to get possession of the land a dishomest or sinister purpose? We are asked by Mr. Desai to spell dishonesty out of the fact that the directors of Raghuvanshi and Land and Bricks were common and so the persons who were interested in Land and Bricks were also interested in seeing that Raghuvanshi had not to suffer for forfeiture of his lease for failure to comply with the covenant to construct a building by 1960. All this may be taken to be true. But, we are unable to see how this would make Raghuvanshis attempt to get possession of the land dishomest or sinister. It is not as if Raghuvanshi did not actually want go get possession of the land but wanted to help Land and Bricks to get possession. It has also be remembered that the identify of the directors and the identify of the main shareholders does not in any way affect the position that in law and in fact Raghuvanshi and Land and Bricks were distinct and separate entities. It is not even remotely suggested that Raghuvanshi and Land and Bricks were really one and the same persons with two names. If that had been so, there might have been good reason for thinking that it was in an attempt to surmount the obstacle presented by the Calcutta Thika Tenancy Act, 1949, that this mode of Raghuvanshi suing Land and bricks for ejectment was recorded to. Indeed, if Raghuvanshi an Land bricks were one and the same person possession of Land and Bricks would be possession of Raghuvanshi and a suit by Raghuvanshi to eject Land and Bricks would be meaningless. But, that is not the appellants case. It appears from the High Courts judgment that the plaintiffs counsel made it plain before the court that it was not his clients case that the plaintiffs real lessor was Raghuvanshi Private Ltd., and not Land and Brickis Ltd. In the present appeal before us also Mr. Desai argued on the basis that Land and Bricks and Raghuvanshi were distinct entities and that the lease of Land and Bricks under Raghuvanshi was a real subsisting lease at the time of Suit No. 3283 of 1955.
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11. There is little doubt that in the present case Land and Bricks agreed with Raghuvanshi that the suit for ejectment would not be contested. When the suit was instituted Land and Bricks did not contest and the ex parte decree was passed. Raghuvanshi did not implead this appellant in that suit. Can any of these acts, viz., Land and Brick agreeing with Raghuvanshi that it would not contest the suit, the actual refraining by Land and Bricks from contesting the suit or the act of Raghuvanshi in not impleading the appellant be said to be an improper act or improper refraining from an act? We do not see how any of these things can be said to be improper.12. Taking the last action first, viz., Raghuvanshis omission to implead the appellant, it is quite clear that the law does not require that the sub-lessee need be made a party. It has been rightly pointed out by the High Court that in all cases where the landlord institutes a suit against the lessee for possession of the land on the basis of a valid notice to quit served on the lessee and does not impleaded the sub-lessee as a party to the suit, the object of the landlord is to eject the sub-lessee from the land in execution of the decree and such an object is quite legitimate. The decree in such a suit would bind the sub-lessee. This may act harshly on the sub-lessee; but this is a position well understood by him when he took the sub-lease. The law allow this and so the omission cannot be said to be an improper act.13. Nor is it possible, in our opinion, to say that the omission of Land and Bricks to contest the ejetment suit was and improper act. It has not been suggested that Land and Bricks had a good defence against the claim for ejectment but did not take it for the mere purpose of helping Raghuvanshi to get possession of the land. Even if it had a good defence, we do not think was bound to take it. It may be that if Land and Bricks had a defence and the defence was such which if brought to the notice of the court would have stood in the way of any decree being passed in favour of Raghuvanshi there would be reason to say that the omission to implead the sub-lessee was actuated by a dishonest purpose and consequently was improper. It is not necessary for us however to consider the matter further as neither in the courts below nor before us was any suggestion made on behalf of the appellant sub-lessee that Land and Bricks had even a plausible defence against Raghuvanshis claim for ejectment.ejectment.15. The crux of the matter is : Was this attempt by Raghuvanshi to get possession of the land a dishomest or sinister purpose? We are asked by Mr. Desai to spell dishonesty out of the fact that the directors of Raghuvanshi and Land and Bricks were common and so the persons who were interested in Land and Bricks were also interested in seeing that Raghuvanshi had not to suffer for forfeiture of his lease for failure to comply with the covenant to construct a building by 1960. All this may be taken to be true. But, we are unable to see how this would make Raghuvanshis attempt to get possession of the land dishomest or sinister. It is not as if Raghuvanshi did not actually want go get possession of the land but wanted to help Land and Bricks to get possession. It has also be remembered that the identify of the directors and the identify of the main shareholders does not in any way affect the position that in law and in fact Raghuvanshi and Land and Bricks were distinct and separate entities. It is not even remotely suggested that Raghuvanshi and Land and Bricks were really one and the same persons with two names. If that had been so, there might have been good reason for thinking that it was in an attempt to surmount the obstacle presented by the Calcutta Thika Tenancy Act, 1949, that this mode of Raghuvanshi suing Land and bricks for ejectment was recorded to. Indeed, if Raghuvanshi an Land bricks were one and the same person possession of Land and Bricks would be possession of Raghuvanshi and a suit by Raghuvanshi to eject Land and Bricks would be meaningless. But, that is not the appellants case. It appears from the High Courts judgment that the plaintiffs counsel made it plain before the court that it was not his clients case that the plaintiffs real lessor was Raghuvanshi Private Ltd., and not Land and Brickis Ltd.Thus the mere fact that the defendant agrees with the plaintiff that if a suit is brought he would not defend it, would not necessarily prove collusion. It is only if this agreement is done improperly in the sense that a dishonest purpose is intended to be achieved that they can be said to have colluded.
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P.D Shamdasani Vs. Central Bank of India Ltd | that "the appeal if filed could not be heard by the judges of the said Court as all of them were disqualified from hearing such appeal" either because of their interest in the Bank or because of their prejudice against him.3. We are of opinion that the petitioner has misconceived his remedy and the petition must fail on a preliminary ground. Neither Art. 19(1) (f) nor Art. 31 (1) on its true construction was intended to prevent wrongful individual acts or to provide protection against merely private conduct. Article 19 deals with the "right to freedom" and by cl. (1) assures to the citizen certain fundamental freedoms including the freedom "to acquire, hold and dispose of property subject to the power of the State to impose restrictions on the exercise of such rights to the extent and on the grounds mentioned in Cls. (2) to (6).The language and structure of Art. 19 and its setting in Part III of the Constitution clearly show that the article was intended to protect those freedoms against State action other than in the legitimate exercise of its power to regulate private rights in the public interest. Violation of rights of property by individuals is not within the purview of the article.4. The position is no better under Art. 31 (1). The petitioner has urged that Cl. (1) should be construed apart from and independently of the rest of the article and, if so construed, its language is wide enough to cover infringements of rights of property by private individuals. He laid emphasis on the omission of the word "State" in Cl. (1) while it was used in Cl. (2) of the same article as well as in many other articles in part III. Referring to Entry No. 33 of the Union List, Entry No. 36 of the State List and Entry No. 42 of the Concurrent List of the seventh schedule to the Constitution, he also argued that, while these Entries read with Art. 246 empowered Parliament and the State Legislatures to make laws regarding acquisition or reacquisitioning of property for the purposes of the Union or the State as the case may be, no power was conferred to make laws regarding "deprivation of property" by the State so that the "deprivation contemplated in Cl. (1) could only be deprivation by individuals. Sub-section (1) of S. 299, Government of India Act, 1936, corresponding to Cl. (1) of Art. 31 was, it was pointed out omitted in the draft Art. 19 (later numbered as Art. 31) which retained in a modified form only the provision contained in sub-s. (2) of that section relating to compulsory acquisition of property for public purposes. But Cl. (1) was subsequently restored and Art. 31 was enacted in its present form as recommended in Drafting Committees report and this, it was claimed, showed that Cl. (1) was intended to operate as a distinct provision apart from Cl. (2). We see no force in any of these arguments.5. In support of the argument that Cl. (1) should be construed in isolation from the rest of the article the petitioner relied on certain observations of our learned brother Das in Charanjit Lal v. The Union of India, 1950 S. C. R. 869, where the view was expressed that Cl. (1) enunciated the general principle that no person should be deprived of his property except by authority of law and laid down no condition for payment of compensation, while Cl. (2) dealt with deprivation of property brought about by acquisition or taking possession of it and required payment of compensation. In other words, deprivation referred to in Cl. (1) must be taken to cover deprivation otherwise than by acquisition or requisitioning of property dealt with in Cl. (2). We consider it unnecessary for the purpose of the present petitioner to go into that question. Even assuming that Cl. (1) has to be read and construed apart from Cl. (2), it is clear that is a declaration of the fundamental right of private property in the same negative form in which Art. 21 declares the fundamental right to life and liberty. There is no express reference to the State in Art. 21. But could it be suggested on that account that that article was intended to afford protection to life and personal liberty against violation by private individuals ? The words "except by procedure established by law" plainly, exclude such a suggestion. Similarly, the words "save by authority of law" in Cl. (1) of Art. 31 show that it is prohibition of unauthorised governmental action against private property, as there can be no question of one private individual being authorised by law to deprive another of his property.6. The argument based on the Entries in the Lists is fallacious. It is not correct to suggest that, merely because there is no Entry in the Lists of the seventh schedule relating to "deprivation of property" as such, it is not within the competence of the legislatures in the country to enact a law authorising of property. Such a law could be made, for instance, under Entry No. 1 of List I, Entry No.1 of List 2 or Entry No.1. of List3. Article 31 (1) itself contemplates a law being passed authorising deprivation of the properties, and it is futile to deny the existence of the requisite legislative power.7. Nor does the legislative history of the article lend any support to the petitioners contention. Section 299 (1), Government of India act, 1935, was never interpreted as prohibiting deprivation of property by private individuals. Its restoration, therefore, therefore, in the same form in Art. 31, after omission in the original draft Art. 19, could lead to no inference in support of the petitioners contention, which indeed proceeds on the fundamental misconception that Art. 19 (1) (f) and Art. (1), which are great constitutional safeguard against State aggression on private property, are directed against infringements by private individuals for which remedies should be sought in the ordinary law. | 0[ds]3. We are of opinion that the petitioner has misconceived his remedy and the petition must fail on a preliminary ground. Neither Art. 19(1) (f) nor Art. 31 (1) on its true construction was intended to prevent wrongful individual acts or to provide protection against merely private conduct. Article 19 deals with the "right to freedom" and by cl. (1) assures to the citizen certain fundamental freedoms including the freedom "to acquire, hold and dispose of property subject to the power of the State to impose restrictions on the exercise of such rights to the extent and on the grounds mentioned in Cls. (2) to (6).The language and structure of Art. 19 and its setting in Part III of the Constitution clearly show that the article was intended to protect those freedoms against State action other than in the legitimate exercise of its power to regulate private rights in the public interest. Violation of rights of property by individuals is not within the purview of the article.4. The position is no better under Art. 31 (1). The petitioner has urged that Cl. (1) should be construed apart from and independently of the rest of the article and, if so construed, its language is wide enough to cover infringements of rights of property by private individuals. He laid emphasis on the omission of the word "State" in Cl. (1) while it was used in Cl. (2) of the same article as well as in many other articles in part III. Referring to Entry No. 33 of the Union List, Entry No. 36 of the State List and Entry No. 42 of the Concurrent List of the seventh schedule to the Constitution, he also argued that, while these Entries read with Art. 246 empowered Parliament and the State Legislatures to make laws regarding acquisition or reacquisitioning of property for the purposes of the Union or the State as the case may be, no power was conferred to make laws regarding "deprivation of property" by the State so that the "deprivation contemplated in Cl. (1) could only be deprivation by individuals.(1) of S. 299, Government of India Act, 1936, corresponding to Cl. (1) of Art. 31 was, it was pointed out omitted in the draft Art. 19 (later numbered as Art. 31) which retained in a modified form only the provision contained in(2) of that section relating to compulsory acquisition of property for public purposes. But Cl. (1) was subsequently restored and Art. 31 was enacted in its present form as recommended in Drafting Committees report and this, it was claimed, showed that Cl. (1) was intended to operate as a distinct provision apart from Cl. (2). We see no force in any of these arguments.5. In support of the argument that Cl. (1) should be construed in isolation from the rest of the article the petitioner relied on certain observations of our learned brother Das in Charanjit Lal v. The Union of India, 1950 S. C. R. 869, where the view was expressed that Cl. (1) enunciated the general principle that no person should be deprived of his property except by authority of law and laid down no condition for payment of compensation, while Cl. (2) dealt with deprivation of property brought about by acquisition or taking possession of it and required payment of compensation. In other words, deprivation referred to in Cl. (1) must be taken to cover deprivation otherwise than by acquisition or requisitioning of property dealt with in Cl. (2). We consider it unnecessary for the purpose of the present petitioner to go into that question. Even assuming that Cl. (1) has to be read and construed apart from Cl. (2), it is clear that is a declaration of the fundamental right of private property in the same negative form in which Art. 21 declares the fundamental right to life and liberty. There is no express reference to the State in Art. 21. But could it be suggested on that account that that article was intended to afford protection to life and personal liberty against violation by private individuals ? The words "except by procedure established by law" plainly, exclude such a suggestion. Similarly, the words "save by authority of law" in Cl. (1) of Art. 31 show that it is prohibition of unauthorised governmental action against private property, as there can be no question of one private individual being authorised by law to deprive another of his property.6. The argument based on the Entries in the Lists is fallacious. It is not correct to suggest that, merely because there is no Entry in the Lists of the seventh schedule relating to "deprivation of property" as such, it is not within the competence of the legislatures in the country to enact a law authorising of property. Such a law could be made, for instance, under Entry No. 1 of List I, Entry No.1 of List 2 or Entry No.1. of List3. Article 31 (1) itself contemplates a law being passed authorising deprivation of the properties, and it is futile to deny the existence of the requisite legislative power.7. Nor does the legislative history of the article lend any support to the petitioners contention. Section 299 (1), Government of India act, 1935, was never interpreted as prohibiting deprivation of property by private individuals. Its restoration, therefore, therefore, in the same form in Art. 31, after omission in the original draft Art. 19, could lead to no inference in support of the petitioners contention, which indeed proceeds on the fundamental misconception that Art. 19 (1) (f) and Art. (1), which are great constitutional safeguard against State aggression on private property, are directed against infringements by private individuals for which remedies should be sought in the ordinary law. | 0 | 1,486 | 1,143 | ### 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:
that "the appeal if filed could not be heard by the judges of the said Court as all of them were disqualified from hearing such appeal" either because of their interest in the Bank or because of their prejudice against him.3. We are of opinion that the petitioner has misconceived his remedy and the petition must fail on a preliminary ground. Neither Art. 19(1) (f) nor Art. 31 (1) on its true construction was intended to prevent wrongful individual acts or to provide protection against merely private conduct. Article 19 deals with the "right to freedom" and by cl. (1) assures to the citizen certain fundamental freedoms including the freedom "to acquire, hold and dispose of property subject to the power of the State to impose restrictions on the exercise of such rights to the extent and on the grounds mentioned in Cls. (2) to (6).The language and structure of Art. 19 and its setting in Part III of the Constitution clearly show that the article was intended to protect those freedoms against State action other than in the legitimate exercise of its power to regulate private rights in the public interest. Violation of rights of property by individuals is not within the purview of the article.4. The position is no better under Art. 31 (1). The petitioner has urged that Cl. (1) should be construed apart from and independently of the rest of the article and, if so construed, its language is wide enough to cover infringements of rights of property by private individuals. He laid emphasis on the omission of the word "State" in Cl. (1) while it was used in Cl. (2) of the same article as well as in many other articles in part III. Referring to Entry No. 33 of the Union List, Entry No. 36 of the State List and Entry No. 42 of the Concurrent List of the seventh schedule to the Constitution, he also argued that, while these Entries read with Art. 246 empowered Parliament and the State Legislatures to make laws regarding acquisition or reacquisitioning of property for the purposes of the Union or the State as the case may be, no power was conferred to make laws regarding "deprivation of property" by the State so that the "deprivation contemplated in Cl. (1) could only be deprivation by individuals. Sub-section (1) of S. 299, Government of India Act, 1936, corresponding to Cl. (1) of Art. 31 was, it was pointed out omitted in the draft Art. 19 (later numbered as Art. 31) which retained in a modified form only the provision contained in sub-s. (2) of that section relating to compulsory acquisition of property for public purposes. But Cl. (1) was subsequently restored and Art. 31 was enacted in its present form as recommended in Drafting Committees report and this, it was claimed, showed that Cl. (1) was intended to operate as a distinct provision apart from Cl. (2). We see no force in any of these arguments.5. In support of the argument that Cl. (1) should be construed in isolation from the rest of the article the petitioner relied on certain observations of our learned brother Das in Charanjit Lal v. The Union of India, 1950 S. C. R. 869, where the view was expressed that Cl. (1) enunciated the general principle that no person should be deprived of his property except by authority of law and laid down no condition for payment of compensation, while Cl. (2) dealt with deprivation of property brought about by acquisition or taking possession of it and required payment of compensation. In other words, deprivation referred to in Cl. (1) must be taken to cover deprivation otherwise than by acquisition or requisitioning of property dealt with in Cl. (2). We consider it unnecessary for the purpose of the present petitioner to go into that question. Even assuming that Cl. (1) has to be read and construed apart from Cl. (2), it is clear that is a declaration of the fundamental right of private property in the same negative form in which Art. 21 declares the fundamental right to life and liberty. There is no express reference to the State in Art. 21. But could it be suggested on that account that that article was intended to afford protection to life and personal liberty against violation by private individuals ? The words "except by procedure established by law" plainly, exclude such a suggestion. Similarly, the words "save by authority of law" in Cl. (1) of Art. 31 show that it is prohibition of unauthorised governmental action against private property, as there can be no question of one private individual being authorised by law to deprive another of his property.6. The argument based on the Entries in the Lists is fallacious. It is not correct to suggest that, merely because there is no Entry in the Lists of the seventh schedule relating to "deprivation of property" as such, it is not within the competence of the legislatures in the country to enact a law authorising of property. Such a law could be made, for instance, under Entry No. 1 of List I, Entry No.1 of List 2 or Entry No.1. of List3. Article 31 (1) itself contemplates a law being passed authorising deprivation of the properties, and it is futile to deny the existence of the requisite legislative power.7. Nor does the legislative history of the article lend any support to the petitioners contention. Section 299 (1), Government of India act, 1935, was never interpreted as prohibiting deprivation of property by private individuals. Its restoration, therefore, therefore, in the same form in Art. 31, after omission in the original draft Art. 19, could lead to no inference in support of the petitioners contention, which indeed proceeds on the fundamental misconception that Art. 19 (1) (f) and Art. (1), which are great constitutional safeguard against State aggression on private property, are directed against infringements by private individuals for which remedies should be sought in the ordinary law.
### Response:
0
### Explanation:
3. We are of opinion that the petitioner has misconceived his remedy and the petition must fail on a preliminary ground. Neither Art. 19(1) (f) nor Art. 31 (1) on its true construction was intended to prevent wrongful individual acts or to provide protection against merely private conduct. Article 19 deals with the "right to freedom" and by cl. (1) assures to the citizen certain fundamental freedoms including the freedom "to acquire, hold and dispose of property subject to the power of the State to impose restrictions on the exercise of such rights to the extent and on the grounds mentioned in Cls. (2) to (6).The language and structure of Art. 19 and its setting in Part III of the Constitution clearly show that the article was intended to protect those freedoms against State action other than in the legitimate exercise of its power to regulate private rights in the public interest. Violation of rights of property by individuals is not within the purview of the article.4. The position is no better under Art. 31 (1). The petitioner has urged that Cl. (1) should be construed apart from and independently of the rest of the article and, if so construed, its language is wide enough to cover infringements of rights of property by private individuals. He laid emphasis on the omission of the word "State" in Cl. (1) while it was used in Cl. (2) of the same article as well as in many other articles in part III. Referring to Entry No. 33 of the Union List, Entry No. 36 of the State List and Entry No. 42 of the Concurrent List of the seventh schedule to the Constitution, he also argued that, while these Entries read with Art. 246 empowered Parliament and the State Legislatures to make laws regarding acquisition or reacquisitioning of property for the purposes of the Union or the State as the case may be, no power was conferred to make laws regarding "deprivation of property" by the State so that the "deprivation contemplated in Cl. (1) could only be deprivation by individuals.(1) of S. 299, Government of India Act, 1936, corresponding to Cl. (1) of Art. 31 was, it was pointed out omitted in the draft Art. 19 (later numbered as Art. 31) which retained in a modified form only the provision contained in(2) of that section relating to compulsory acquisition of property for public purposes. But Cl. (1) was subsequently restored and Art. 31 was enacted in its present form as recommended in Drafting Committees report and this, it was claimed, showed that Cl. (1) was intended to operate as a distinct provision apart from Cl. (2). We see no force in any of these arguments.5. In support of the argument that Cl. (1) should be construed in isolation from the rest of the article the petitioner relied on certain observations of our learned brother Das in Charanjit Lal v. The Union of India, 1950 S. C. R. 869, where the view was expressed that Cl. (1) enunciated the general principle that no person should be deprived of his property except by authority of law and laid down no condition for payment of compensation, while Cl. (2) dealt with deprivation of property brought about by acquisition or taking possession of it and required payment of compensation. In other words, deprivation referred to in Cl. (1) must be taken to cover deprivation otherwise than by acquisition or requisitioning of property dealt with in Cl. (2). We consider it unnecessary for the purpose of the present petitioner to go into that question. Even assuming that Cl. (1) has to be read and construed apart from Cl. (2), it is clear that is a declaration of the fundamental right of private property in the same negative form in which Art. 21 declares the fundamental right to life and liberty. There is no express reference to the State in Art. 21. But could it be suggested on that account that that article was intended to afford protection to life and personal liberty against violation by private individuals ? The words "except by procedure established by law" plainly, exclude such a suggestion. Similarly, the words "save by authority of law" in Cl. (1) of Art. 31 show that it is prohibition of unauthorised governmental action against private property, as there can be no question of one private individual being authorised by law to deprive another of his property.6. The argument based on the Entries in the Lists is fallacious. It is not correct to suggest that, merely because there is no Entry in the Lists of the seventh schedule relating to "deprivation of property" as such, it is not within the competence of the legislatures in the country to enact a law authorising of property. Such a law could be made, for instance, under Entry No. 1 of List I, Entry No.1 of List 2 or Entry No.1. of List3. Article 31 (1) itself contemplates a law being passed authorising deprivation of the properties, and it is futile to deny the existence of the requisite legislative power.7. Nor does the legislative history of the article lend any support to the petitioners contention. Section 299 (1), Government of India act, 1935, was never interpreted as prohibiting deprivation of property by private individuals. Its restoration, therefore, therefore, in the same form in Art. 31, after omission in the original draft Art. 19, could lead to no inference in support of the petitioners contention, which indeed proceeds on the fundamental misconception that Art. 19 (1) (f) and Art. (1), which are great constitutional safeguard against State aggression on private property, are directed against infringements by private individuals for which remedies should be sought in the ordinary law.
|
Builders Supply Corporation Vs. The Union Of India Represented By The Commissioner O | the time being in force to be recoverable or realizable as an arrear of revenue or land revenue. That is how the arrears of tax in respect of which a certificate has been issued by the Income-tax Officer attract the provisions of the Recovery Act. A "Certificate Officer" means under S.3 (3) a Collector and other officers mentioned in it. A "certificate-holder" under S. 3(2) means the Government or person in whose favour a certificate has been filed under this Act, and "certificate-debtor" under S. 3(1) means a person named as debtor in a certificate filed under this Act. The effect of the provisions contained in Ss. 4 to 10 in part II of the Recovery act, appears that when a Certificate Officer is satisfied that any public demand payable to the Collector is due he proceeds to sign a certificate in the prescribed form. This certificate is a certificate properly so-called for the purpose of this Act. The certificate issued under S. 46(2) of the Income-tax Act is in a sense a, public demand, but S. 5 of the Recovery Act seems to require that when any requisition is received by the Certificate Officer, he has to examine whether the demand in question is recoverable and whether the recovery by suit is not barred by law. On this prima facie examination, if he is satisfied that further action is justified, he proceeds to sign a certificate stating that the demand is due; that is the effect of S. 6. A certificate so issued is then served on the certificate-debtor under S.7, and S.8 prohibits private transfer of the immovable property of the certificate-debtor after the service of notice of any certificate has been effected on him under S. 7. It is at that stage that the certificate-debtor is empowered to file a petition denying his liability under S. 9; and his objections are heard under S. 10. That, in brief, is the scheme of Part at II with which we are concerned.30. There is one more provision of the Recovery Act to which we ought to refer, and that is S.26. This section deals with the disposal of proceeds in execution, and sub-s.(1) of this section provides that where assets are realized, by sale or otherwise in execution of a certificate, they shall be disposed of in the manner indicated by its clauses (a) to (d). Section 38 provides that statutory rules included in Sch. II shall have effect as if enacted in the body of this Act, until altered or annulled in accordance with the provisions of Part V. Statutory Rule 22 which is relevant for our purpose deals with cases of attachment of property in custody of Court or public officer, it reads thus:--"Where the property to be attached is in the custody of any Court or public officer, the attachment shall be made by a notice to such Court or officer, requesting that such property, and any interest or dividend becoming payable thereon, may be held subject to the further orders of the Certificate-Officer by whom the notice is issued :Provided that, where such property is in the custody of a Court, any question of title or priority arising between the certificate-holder and any other person, not being the certificate-debtor, claiming to be interested in such property by virtue of any assignment, attachment or otherwise, shall be determined by such Court".31. Having thus considered the broad features of the Recovery Act, the question which we have to decide is whether these provisions can be said to amount to a statutory provision in respect of the doctrine of priority of arrears of income-tax due to respondent No. 1 over private debts due from the same debtor. We have already examined the two decisions on which Mr. Das Guptas contention rests. Take, for instance, S. 230 of the Indian Companies Act. Can we say that any provisions of the Recovery Act can be compared to the provisions of S. 230 of the Companies Act? In our opinion, the answer to this question has to be in the negative. Broadly stated, the Recovery Act is intended mainly to provide for the procedure to recover public debts. This Act is not directly concerned with the right to recover arrears, or with priority, of tax dues. Arrears of tax fall within the scope of the proceedings contemplated by it, because they attract the provisions of clause 3 of Sch. I. Even a superficial glance at the fourteen clauses of Sch. I to the Recovery Act would indicate that this Act is concerned with public demands of various kinds, and it would not be reasonable to suggest that any of its provisions are intended to deal directly or even indirectly with the principle of law with which we are concerned. These provisions merely indicate the manner in which and the procedure according to which public debts should be recovered. There is no positive provision in respect of respondent No. ls claim to recover arrears of tax. Rule 22 to which we have referred which corresponds to O. 21, R. 52 of the Code of Civil Procedure, can no doubt be invoked to recover arrears of tax; but that is because the procedure prescribed by the said Rule applies to the recovery of public debts and tax arrears can be treated as public debts inasmuch as by virtue of S. 46(2) of the Income-tax Act they become recoverable as arrears of land revenue, in our opinion, it is difficult to accept the argument that the application of the doctrine of priority of arrears of tax over private debts can be said to be displaced by any of the provisions of the Recovery Act. That being so, we must hold that the High Court was right in coming to the conclusion that respondent No. 1 was entitled to claim priority in the matter of arrears of tax due from respondent No. 2 over the decretal debt due to the appellant from the same debtor. | 0[ds]We have referred to this aspect of the matter, because if the larger question about the validity of the Crown prerogative in respect of claims other than tax claims falls to be considered in future, it may become necessary to enquire whether a similar doctrine was recognised by Hindu Jurisprudence or not. That enquiry is, however, foreign to the scope of the controversy in the present appeal. So far as respondent No. ls claim in the present appeal is concerned, there is no doubt that this claim has been consistently recognised by all the Indian Highargument naturally proceeds on the assumption that the judicial recognition of the relevant Common law doctrine cannot claim the protection of Art. 372(1). It will be recalled that Art. 372(1) provides, inter alia, for the continuance in force of existing laws. It lays down that notwithstanding the repeal by this Constitution of the enactments referred to in Art. 395 but subject to the other provisions of this Constitution, all the law in force in the territory of India immediately before the commencement of this Constitution shall continue in force therein until altered or repealed or amended by a competent Legislature or other competent authority. The question which arises is whether this doctrine of priority which is based on common law and which was recognised by our High Courts prior to 1950, can be said to constitute "law it force" in the territory of India at the relevant time. In other words, is this doctrine of common law which was introduced in this country and followed, law in force within the meaning of Art. 372(1)? If it is, then by virtue of Art. 372(1) itself, the same law would continue to be in force until it is validly altered, repealed or amended.At this stage, we ought to make it clear that in the present appeal we are dealing with a very narrow point, and that relate to respondent No. ls claim that arrears of tax due to it have precedence or priority over money debts due to a private creditor from the same debtor. We think it necessary to emphasise this aspect of the matter, because the basic doctrine of Crown privileges as originally evolved by Common law in England may lead to different categories of claims made in different circumstances and by different States in India; and we want to make it clear that our present decision should be confined only to the narrow point with which we are directly concerned. Questions may arise as to whether the relevant Common law doctrine was accepted in some Indian States, if it is shown that it was not, it may have to be considered whether Art. 372(1) would assist the enforcement of the said doctrine in such States. One thing is clear that if the said doctrine was accepted as a part of the law in any part of the country, it will not cease to be operative, because it is included in the expression "law in force" under Art. 372(1), but the position would be different in respect of such parts of the territory of India where the said doctrine was not recognised or applied prior to 1950. Then again, if this doctrine is supposed to be an essential attribute of sovereignty, where does sovereignty reside after the Constitution ? Does it reside in the Union as well as all the constituent States ? If yes, what would be the position if competing claims were made by the States inter se, or by one of the States against the Union ? That is another aspact of the matter which may need careful examination in future.Similarly, the basic justification for the claim for priority made by respondent No. 1 in the present case rests on the well-recognised principle that the State is entitled to raise money by taxation, because unless adequate revenue is received by the State, it would not be able to function as a sovereign Government at all. It is essential that as a Sovereign, the State should be able to discharge its primary governmental functions and in order to be able to discharge such functions efficiently, it must be in possession of necessary funds, and this consideration emphasises the necessity and the wisdom of conceding to the State the right to claim priority in respect of its tax dues.23. But the same principle may not equally be applicable in respect of debts due to the State if they are contracted by citizens in relation to commercial activities which, no doubt, may be undertaken by the State for achieving socio-economic good. It is wellknown that a welfare State often enters commercial fields which cannot be regarded as an essential and integral part of the basic governmental functions of the State, and if the State seeks to recover debts from its debtors arising out of such commercial activities, it may become necessary to consider whether the doctrine of priority can be extended to such transactions. We are referring to some of the difficult problems which may arise in future in regard to the application of this doctrine, because we want to make it clear that our decision in the present appeal should not be taken to deal with any of them our conclusion, therefore, is that the claim for priority made by respondent No. 1 in the present proceedings has to be sustained, because it is based on a Common law doctrine which had been applied and upheld in that part of India which was known British India prior to the Constitution.Having thus considered the broad features of the Recovery Act, the question which we have to decide is whether these provisions can be said to amount to a statutory provision in respect of the doctrine of priority of arrears of income-tax due to respondent No. 1 over private debts due from the same debtor. We have already examined the two decisions on which Mr. Das Guptas contention rests. Take, for instance, S. 230 of the Indian Companies Act. Can we say that any provisions of the Recovery Act can be compared to the provisions of S. 230 of the Companies Act? In our opinion, the answer to this question has to be in the negative. Broadly stated, the Recovery Act is intended mainly to provide for the procedure to recover public debts. This Act is not directly concerned with the right to recover arrears, or with priority, of tax dues. Arrears of tax fall within the scope of the proceedings contemplated by it, because they attract the provisions of clause 3 of Sch. I. Even a superficial glance at the fourteen clauses of Sch. I to the Recovery Act would indicate that this Act is concerned with public demands of various kinds, and it would not be reasonable to suggest that any of its provisions are intended to deal directly or even indirectly with the principle of law with which we are concerned. These provisions merely indicate the manner in which and the procedure according to which public debts should be recovered. There is no positive provision in respect of respondent No. ls claim to recover arrears of tax. Rule 22 to which we have referred which corresponds to O. 21, R. 52 of theCode of Civil Procedure, can no doubt be invoked to recover arrears of tax; but that is because the procedure prescribed by the said Rule applies to the recovery of public debts and tax arrears can be treated as public debts inasmuch as by virtue of S. 46(2) of the Income-tax Act they become recoverable as arrears of land revenue, in our opinion, it is difficult to accept the argument that the application of the doctrine of priority of arrears of tax over private debts can be said to be displaced by any of the provisions of the Recovery Act. That being so, we must hold that the High Court was right in coming to the conclusion that respondent No. 1 was entitled to claim priority in the matter of arrears of tax due from respondent No. 2 over the decretal debt due to the appellant from the same debtor. | 0 | 9,554 | 1,492 | ### Instruction:
Conjecture the end result of the case (acceptance (1) or non-acceptance (0) of the appeal), followed by a detailed explanation using crucial sentences from the case proceeding.
### Input:
the time being in force to be recoverable or realizable as an arrear of revenue or land revenue. That is how the arrears of tax in respect of which a certificate has been issued by the Income-tax Officer attract the provisions of the Recovery Act. A "Certificate Officer" means under S.3 (3) a Collector and other officers mentioned in it. A "certificate-holder" under S. 3(2) means the Government or person in whose favour a certificate has been filed under this Act, and "certificate-debtor" under S. 3(1) means a person named as debtor in a certificate filed under this Act. The effect of the provisions contained in Ss. 4 to 10 in part II of the Recovery act, appears that when a Certificate Officer is satisfied that any public demand payable to the Collector is due he proceeds to sign a certificate in the prescribed form. This certificate is a certificate properly so-called for the purpose of this Act. The certificate issued under S. 46(2) of the Income-tax Act is in a sense a, public demand, but S. 5 of the Recovery Act seems to require that when any requisition is received by the Certificate Officer, he has to examine whether the demand in question is recoverable and whether the recovery by suit is not barred by law. On this prima facie examination, if he is satisfied that further action is justified, he proceeds to sign a certificate stating that the demand is due; that is the effect of S. 6. A certificate so issued is then served on the certificate-debtor under S.7, and S.8 prohibits private transfer of the immovable property of the certificate-debtor after the service of notice of any certificate has been effected on him under S. 7. It is at that stage that the certificate-debtor is empowered to file a petition denying his liability under S. 9; and his objections are heard under S. 10. That, in brief, is the scheme of Part at II with which we are concerned.30. There is one more provision of the Recovery Act to which we ought to refer, and that is S.26. This section deals with the disposal of proceeds in execution, and sub-s.(1) of this section provides that where assets are realized, by sale or otherwise in execution of a certificate, they shall be disposed of in the manner indicated by its clauses (a) to (d). Section 38 provides that statutory rules included in Sch. II shall have effect as if enacted in the body of this Act, until altered or annulled in accordance with the provisions of Part V. Statutory Rule 22 which is relevant for our purpose deals with cases of attachment of property in custody of Court or public officer, it reads thus:--"Where the property to be attached is in the custody of any Court or public officer, the attachment shall be made by a notice to such Court or officer, requesting that such property, and any interest or dividend becoming payable thereon, may be held subject to the further orders of the Certificate-Officer by whom the notice is issued :Provided that, where such property is in the custody of a Court, any question of title or priority arising between the certificate-holder and any other person, not being the certificate-debtor, claiming to be interested in such property by virtue of any assignment, attachment or otherwise, shall be determined by such Court".31. Having thus considered the broad features of the Recovery Act, the question which we have to decide is whether these provisions can be said to amount to a statutory provision in respect of the doctrine of priority of arrears of income-tax due to respondent No. 1 over private debts due from the same debtor. We have already examined the two decisions on which Mr. Das Guptas contention rests. Take, for instance, S. 230 of the Indian Companies Act. Can we say that any provisions of the Recovery Act can be compared to the provisions of S. 230 of the Companies Act? In our opinion, the answer to this question has to be in the negative. Broadly stated, the Recovery Act is intended mainly to provide for the procedure to recover public debts. This Act is not directly concerned with the right to recover arrears, or with priority, of tax dues. Arrears of tax fall within the scope of the proceedings contemplated by it, because they attract the provisions of clause 3 of Sch. I. Even a superficial glance at the fourteen clauses of Sch. I to the Recovery Act would indicate that this Act is concerned with public demands of various kinds, and it would not be reasonable to suggest that any of its provisions are intended to deal directly or even indirectly with the principle of law with which we are concerned. These provisions merely indicate the manner in which and the procedure according to which public debts should be recovered. There is no positive provision in respect of respondent No. ls claim to recover arrears of tax. Rule 22 to which we have referred which corresponds to O. 21, R. 52 of the Code of Civil Procedure, can no doubt be invoked to recover arrears of tax; but that is because the procedure prescribed by the said Rule applies to the recovery of public debts and tax arrears can be treated as public debts inasmuch as by virtue of S. 46(2) of the Income-tax Act they become recoverable as arrears of land revenue, in our opinion, it is difficult to accept the argument that the application of the doctrine of priority of arrears of tax over private debts can be said to be displaced by any of the provisions of the Recovery Act. That being so, we must hold that the High Court was right in coming to the conclusion that respondent No. 1 was entitled to claim priority in the matter of arrears of tax due from respondent No. 2 over the decretal debt due to the appellant from the same debtor.
### Response:
0
### Explanation:
because the basic doctrine of Crown privileges as originally evolved by Common law in England may lead to different categories of claims made in different circumstances and by different States in India; and we want to make it clear that our present decision should be confined only to the narrow point with which we are directly concerned. Questions may arise as to whether the relevant Common law doctrine was accepted in some Indian States, if it is shown that it was not, it may have to be considered whether Art. 372(1) would assist the enforcement of the said doctrine in such States. One thing is clear that if the said doctrine was accepted as a part of the law in any part of the country, it will not cease to be operative, because it is included in the expression "law in force" under Art. 372(1), but the position would be different in respect of such parts of the territory of India where the said doctrine was not recognised or applied prior to 1950. Then again, if this doctrine is supposed to be an essential attribute of sovereignty, where does sovereignty reside after the Constitution ? Does it reside in the Union as well as all the constituent States ? If yes, what would be the position if competing claims were made by the States inter se, or by one of the States against the Union ? That is another aspact of the matter which may need careful examination in future.Similarly, the basic justification for the claim for priority made by respondent No. 1 in the present case rests on the well-recognised principle that the State is entitled to raise money by taxation, because unless adequate revenue is received by the State, it would not be able to function as a sovereign Government at all. It is essential that as a Sovereign, the State should be able to discharge its primary governmental functions and in order to be able to discharge such functions efficiently, it must be in possession of necessary funds, and this consideration emphasises the necessity and the wisdom of conceding to the State the right to claim priority in respect of its tax dues.23. But the same principle may not equally be applicable in respect of debts due to the State if they are contracted by citizens in relation to commercial activities which, no doubt, may be undertaken by the State for achieving socio-economic good. It is wellknown that a welfare State often enters commercial fields which cannot be regarded as an essential and integral part of the basic governmental functions of the State, and if the State seeks to recover debts from its debtors arising out of such commercial activities, it may become necessary to consider whether the doctrine of priority can be extended to such transactions. We are referring to some of the difficult problems which may arise in future in regard to the application of this doctrine, because we want to make it clear that our decision in the present appeal should not be taken to deal with any of them our conclusion, therefore, is that the claim for priority made by respondent No. 1 in the present proceedings has to be sustained, because it is based on a Common law doctrine which had been applied and upheld in that part of India which was known British India prior to the Constitution.Having thus considered the broad features of the Recovery Act, the question which we have to decide is whether these provisions can be said to amount to a statutory provision in respect of the doctrine of priority of arrears of income-tax due to respondent No. 1 over private debts due from the same debtor. We have already examined the two decisions on which Mr. Das Guptas contention rests. Take, for instance, S. 230 of the Indian Companies Act. Can we say that any provisions of the Recovery Act can be compared to the provisions of S. 230 of the Companies Act? In our opinion, the answer to this question has to be in the negative. Broadly stated, the Recovery Act is intended mainly to provide for the procedure to recover public debts. This Act is not directly concerned with the right to recover arrears, or with priority, of tax dues. Arrears of tax fall within the scope of the proceedings contemplated by it, because they attract the provisions of clause 3 of Sch. I. Even a superficial glance at the fourteen clauses of Sch. I to the Recovery Act would indicate that this Act is concerned with public demands of various kinds, and it would not be reasonable to suggest that any of its provisions are intended to deal directly or even indirectly with the principle of law with which we are concerned. These provisions merely indicate the manner in which and the procedure according to which public debts should be recovered. There is no positive provision in respect of respondent No. ls claim to recover arrears of tax. Rule 22 to which we have referred which corresponds to O. 21, R. 52 of theCode of Civil Procedure, can no doubt be invoked to recover arrears of tax; but that is because the procedure prescribed by the said Rule applies to the recovery of public debts and tax arrears can be treated as public debts inasmuch as by virtue of S. 46(2) of the Income-tax Act they become recoverable as arrears of land revenue, in our opinion, it is difficult to accept the argument that the application of the doctrine of priority of arrears of tax over private debts can be said to be displaced by any of the provisions of the Recovery Act. That being so, we must hold that the High Court was right in coming to the conclusion that respondent No. 1 was entitled to claim priority in the matter of arrears of tax due from respondent No. 2 over the decretal debt due to the appellant from the same debtor.
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Jagdish Prasad Tiwari Vs. Ramdhani Mishra | that in the 1967 General Election, I was nominated Congress Candidate. Then the present Congress candidate, Shri Jagdish Prasad Tewari was contesting against me as an Independent candidate. The Tewariji who now proclaims himself, a congressman, and has as well been accepted, had no satiety from reviling - using abusive and debased terms -prime Minister Indira Gandhi and the congress. His supporters were raising obscene and abusive slogans against Prime Minister Indira Gandhi.Shri Tewari had contested election in 1957 as an independent and in 1962 from Bam Raiya Parishad. Then too he used to pour out venom against the Congress of this nature.This time, when the Congress allotted ticket to Shri Jagdish Prasad, then a deep religious crisis arose before me. The man who throughout his life remained an opponent of the Congress - how is he a Congressite? It was a religious crisis of the same nature, as had arisen before our Prime Minister Indira Gandhi, two years ago, when in the Presidential Election, against the Congress sponsored candidate, Shri Sanjiva Reddy, she supported an Independent candidate Shri V. V. Giri and made him victorious. Then the Prime Minister had said "From the Mandate of the Party weighter Mandate is the mandate of conscience. Act according to the dictates of the conscience." For this the Congress Party expelled Shrimati Gandhi from the party, and the Prime Minister had to form a New Congress. I too today at the bid of the same conscience stand in the Election as an Independent candidate, so that truth triumphs and the hypocrates are exposed.In the last election Shri Jagdish Prasad had got published and distributed pamphlets with his photograph and that contained his declaration that within 15 days of his winning the election, he will flow stream of mills in the constituency, but for full five years past he wandered in the whole country on the free pass and could not look to the sufferings of the public of Maugani constituency. Because of the long absence of the Legislator, I had to look into every affair of the constituency and for this always keeping contact with the leaders, of the State and the Government. I used to get the plans implemented. During the last 24 Years I remained servant in your service, as a servant. During these 24 years, you all are very well acquainted with my nature, way of working and my virtues and vices.Of all the candidates of Mauganj constituency I am the only candidate, who could neither build a house of my own nor became a man of riches. I am Socialist at heart and have full faith in socialistic principles. I am not a Socialist of the pattern of Shri Achutanand of the Socialist Party, who while establishing socialism, became a man of lacs. My religion, my politics and my principle, is only that I may make my constituency so full of means and splendid as to remove poverty, illiteracy, and unemployment from here, so that the people of the constituency may not wander about place to place for employment and bread.In this election my two opponents Shri Achutanand and Shri Jagdish Prasad had been legislators, you are very well familiar with them. Who are the remaining candidates? And of what quality? You shall find out this for yourself. Personally none is my enemy, so do I believe.On the call of conscience, perhaps I am contesting the election for the last time in my life. You have to decide, public is God (Janardan), whatever be your decision, I shall bow down and accept the same.Your humble servantRam Dhani Mishra"The only difference between Ext. P-2 and Ext. P-1 is that instead of the sentence "His supporters were raising obscene and abusive slogans against Prime Minister Indira Gandhi" the slogan itself was mentioned in Ext. P-1. The learned Judge who tried the election petition held on the evidence that Ext. P-1 and Ext. P-2 were both issued and published at the instance of the respondent. We have gone through the evidence and we have no reason to differ from his conclusion. Nor was the conclusion seriously questioned by the learned Advocate appearing for the respondent. The learned Judge further held that the matter contained in Ext. P-1 and Ext. P-2 is undoubtedly false as there is hardly any evidence to indicate that the appellant in any manner had made any such propaganda by abusing the Prime Minister.3. Under Section 123 (4) of the Representation of the People Act the false statement must be in relation to the personal character or conduct of the candidate. We should here set out the offending portion in Ext. P-1: Then Tewariji who now proclaims himself a Congressman, and has as well been accepted, had no satiety from reviling using abusive and debased terms, Prime Minister Indira Gandhi, and the congress. His supporters were raising slogans of very mean standard,Gali Gali mein Jhandi hai Indira Gandhi Randi hai"The translation which is found in the judgment is as follows:"At that time Mr. Tiwari who now claims himself to be Congressman and he has also been recognised as such never felt contented in telling legitimate and illegitimate about the Prime Minister Mrs. Indira Gandhi and the Congress. His supporters used to raise low standard slogans such as flag is in every street. Indira Gandhi is prostitute.The Hindi words used are "Khari Khoti" which mean true and false rather than legitimate and illegitimate. However, as pointed out by the learned Judge the first sentence relates to what the appellant himself did. The second sentence relates to what his supporters did. It is the second sentence that is obscene and abusive of the Prime Minister. Therefore it cannot be said that the character or conduct of the appellant was attacked and therefore the matter does not fall within sub-s. (4) of Section 123. We are, therefore. of opinion that the appellant has failed to prove the corrupt practice that he alleged against the respondent even as the learned Judge did. | 0[ds]3. Under Section 123 (4) of the Representation of the People Act the false statement must be in relation to the personal character or conduct of the candidate. We should here set out the offending portion in Ext.Then Tewariji who now proclaims himself a Congressman, and has as well been accepted, had no satiety from revilingusing abusive and debasedPrime Minister Indira Gandhi, and the congress. His supporters were raising slogans of very mean standard,Gali Gali mein Jhandi hai Indira Gandhi Randi hai"The translation which is found in the judgment is as follows:"At that time Mr. Tiwari who now claims himself to be Congressman and he has also been recognised as such never felt contented in telling legitimate and illegitimate about the Prime Minister Mrs. Indira Gandhi and the Congress. His supporters used to raise low standard slogans such as flag is in every street. Indira Gandhi is prostitute.The Hindi words used are "Khari Khoti" which mean true and false rather than legitimate and illegitimate. However, as pointed out by the learned Judge the first sentence relates to what the appellant himself did. The second sentence relates to what his supporters did. It is the second sentence that is obscene and abusive of the Prime Minister. Therefore it cannot be said that the character or conduct of the appellant was attacked and therefore the matter does not fall within(4) of Section 123. We are, therefore. of opinion that the appellant has failed to prove the corrupt practice that he alleged against the respondent even as the learned Judge did. | 0 | 1,349 | 294 | ### Instruction:
Estimate the outcome of the case (positive (1) or negative (0) for the appellant) and then give a reasoned explanation by examining important sentences within the case documentation.
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that in the 1967 General Election, I was nominated Congress Candidate. Then the present Congress candidate, Shri Jagdish Prasad Tewari was contesting against me as an Independent candidate. The Tewariji who now proclaims himself, a congressman, and has as well been accepted, had no satiety from reviling - using abusive and debased terms -prime Minister Indira Gandhi and the congress. His supporters were raising obscene and abusive slogans against Prime Minister Indira Gandhi.Shri Tewari had contested election in 1957 as an independent and in 1962 from Bam Raiya Parishad. Then too he used to pour out venom against the Congress of this nature.This time, when the Congress allotted ticket to Shri Jagdish Prasad, then a deep religious crisis arose before me. The man who throughout his life remained an opponent of the Congress - how is he a Congressite? It was a religious crisis of the same nature, as had arisen before our Prime Minister Indira Gandhi, two years ago, when in the Presidential Election, against the Congress sponsored candidate, Shri Sanjiva Reddy, she supported an Independent candidate Shri V. V. Giri and made him victorious. Then the Prime Minister had said "From the Mandate of the Party weighter Mandate is the mandate of conscience. Act according to the dictates of the conscience." For this the Congress Party expelled Shrimati Gandhi from the party, and the Prime Minister had to form a New Congress. I too today at the bid of the same conscience stand in the Election as an Independent candidate, so that truth triumphs and the hypocrates are exposed.In the last election Shri Jagdish Prasad had got published and distributed pamphlets with his photograph and that contained his declaration that within 15 days of his winning the election, he will flow stream of mills in the constituency, but for full five years past he wandered in the whole country on the free pass and could not look to the sufferings of the public of Maugani constituency. Because of the long absence of the Legislator, I had to look into every affair of the constituency and for this always keeping contact with the leaders, of the State and the Government. I used to get the plans implemented. During the last 24 Years I remained servant in your service, as a servant. During these 24 years, you all are very well acquainted with my nature, way of working and my virtues and vices.Of all the candidates of Mauganj constituency I am the only candidate, who could neither build a house of my own nor became a man of riches. I am Socialist at heart and have full faith in socialistic principles. I am not a Socialist of the pattern of Shri Achutanand of the Socialist Party, who while establishing socialism, became a man of lacs. My religion, my politics and my principle, is only that I may make my constituency so full of means and splendid as to remove poverty, illiteracy, and unemployment from here, so that the people of the constituency may not wander about place to place for employment and bread.In this election my two opponents Shri Achutanand and Shri Jagdish Prasad had been legislators, you are very well familiar with them. Who are the remaining candidates? And of what quality? You shall find out this for yourself. Personally none is my enemy, so do I believe.On the call of conscience, perhaps I am contesting the election for the last time in my life. You have to decide, public is God (Janardan), whatever be your decision, I shall bow down and accept the same.Your humble servantRam Dhani Mishra"The only difference between Ext. P-2 and Ext. P-1 is that instead of the sentence "His supporters were raising obscene and abusive slogans against Prime Minister Indira Gandhi" the slogan itself was mentioned in Ext. P-1. The learned Judge who tried the election petition held on the evidence that Ext. P-1 and Ext. P-2 were both issued and published at the instance of the respondent. We have gone through the evidence and we have no reason to differ from his conclusion. Nor was the conclusion seriously questioned by the learned Advocate appearing for the respondent. The learned Judge further held that the matter contained in Ext. P-1 and Ext. P-2 is undoubtedly false as there is hardly any evidence to indicate that the appellant in any manner had made any such propaganda by abusing the Prime Minister.3. Under Section 123 (4) of the Representation of the People Act the false statement must be in relation to the personal character or conduct of the candidate. We should here set out the offending portion in Ext. P-1: Then Tewariji who now proclaims himself a Congressman, and has as well been accepted, had no satiety from reviling using abusive and debased terms, Prime Minister Indira Gandhi, and the congress. His supporters were raising slogans of very mean standard,Gali Gali mein Jhandi hai Indira Gandhi Randi hai"The translation which is found in the judgment is as follows:"At that time Mr. Tiwari who now claims himself to be Congressman and he has also been recognised as such never felt contented in telling legitimate and illegitimate about the Prime Minister Mrs. Indira Gandhi and the Congress. His supporters used to raise low standard slogans such as flag is in every street. Indira Gandhi is prostitute.The Hindi words used are "Khari Khoti" which mean true and false rather than legitimate and illegitimate. However, as pointed out by the learned Judge the first sentence relates to what the appellant himself did. The second sentence relates to what his supporters did. It is the second sentence that is obscene and abusive of the Prime Minister. Therefore it cannot be said that the character or conduct of the appellant was attacked and therefore the matter does not fall within sub-s. (4) of Section 123. We are, therefore. of opinion that the appellant has failed to prove the corrupt practice that he alleged against the respondent even as the learned Judge did.
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3. Under Section 123 (4) of the Representation of the People Act the false statement must be in relation to the personal character or conduct of the candidate. We should here set out the offending portion in Ext.Then Tewariji who now proclaims himself a Congressman, and has as well been accepted, had no satiety from revilingusing abusive and debasedPrime Minister Indira Gandhi, and the congress. His supporters were raising slogans of very mean standard,Gali Gali mein Jhandi hai Indira Gandhi Randi hai"The translation which is found in the judgment is as follows:"At that time Mr. Tiwari who now claims himself to be Congressman and he has also been recognised as such never felt contented in telling legitimate and illegitimate about the Prime Minister Mrs. Indira Gandhi and the Congress. His supporters used to raise low standard slogans such as flag is in every street. Indira Gandhi is prostitute.The Hindi words used are "Khari Khoti" which mean true and false rather than legitimate and illegitimate. However, as pointed out by the learned Judge the first sentence relates to what the appellant himself did. The second sentence relates to what his supporters did. It is the second sentence that is obscene and abusive of the Prime Minister. Therefore it cannot be said that the character or conduct of the appellant was attacked and therefore the matter does not fall within(4) of Section 123. We are, therefore. of opinion that the appellant has failed to prove the corrupt practice that he alleged against the respondent even as the learned Judge did.
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K.M. Singh Vs. Secretary Association of India Universities and others | the sense that the parties desired to know something which none of them had any knowledge of- Where there is a dispute as regards a certain question and the Court is in need of information regarding the truth on that point, any statement which the referee may make is nevertheless information within the purview of Section 20 and is admissible. The reason behind admissibility of the statement is that when a party refers to another person for a statement of his views, the party approves of his utterance in anticipation and adopts that as his own. The principle is the same as that of reference to arbitration.The reference under Section 20 may be by express words or by conduct, but in any case there must be a clear admission to refer and such admissions are generally conclusive. Admissions may operate as estoppel and they do so where parties had agreed to” abide by them.” 13. A Similar question arose in J.A.Munnuswami Naidu, AIR 1977 Madras 273 (supra) before the Division Bench of the Madras High Court. There a suit had been filed on 16th June, 1971 for recovery of money against the appellant on the foot of a security bond. The second respondent in the suit was a puisne mortgagee. The appellant filed the written statement that the respondent, the first mortgagee had fraudulently suppressed the payment of interest in the security bond and if the proper account was taken the money will be due to the first respondent. When the suit was taken up for trial, the plaintiff agreed to take a special oath on his family deity that for the suit security bond no money except those shown by way of endorsement was received by him. It was “also agreed that the plaintiff mortgagee taking such an oath, the suit may be decreed. The plaintiff took a special oath and the suit was decreed. The Judgment Debtor filed an un-numbered execution application praying that the decree be declared as a nullity having been passed by the Civil Court having no jurisdiction. The executing court dismissed the objections to the execution and the matter came up in appeal before the High Court. The learned Single Judge of the High Court dismissed the appeal. Whereupon the matter was taken up before the Division Bench. Kailasam, C.J. (as His Lordship then was) and Balasubrahmanyam, J. dismissed the Letters Patent Appeal. It was submitted before the Division Bench that because the Oaths Act, 1873 has been repealled, what the plaintiff had stated on special oath is not an evidence. The learned Single Judge who had heard the appeal was confronted with the arguments that the date on which the special oath was taken the Oaths Act, 1873, which provided that when a special oath was taken under Section 10, it would be conclusive against the person who offered, was no longer in force as the said Act had been repealed in 1969 and the new Act of 1969 dispensed with the procedure as to the taking of the special oath and its consequences. It was common ground that the special oath was taken in ignorance of the fact that the Oaths Act, 1873, under which the procedure as to the taking of special oath was admitted, had been repealed and that the new Oaths Act had no provision for such a procedure. The Division Bench observed that they could not accept the contention that because Oaths Act, 1873 had been repealed, what the plaintiff has stated on special oath is not an evidence Earlier the Single Judge had taken the same view. 14. The question directly in issue came up before a Division Bench of the Punjab and Haryana High Court in Thakur Singh and Others v. Inder Singh, AIR 1976 P&H 287 . The Division Bench took the view that: “The only effect of exclusion of Sections 9 to 12 of the OathsAct, 1873 by Oaths Act 1969 is that if any party to any judicial proceeding offers to be bound by any special oath and the Court thinks it fit to administer such an oath to the other party consenting thereto and such oath is taken by the other party, the evidence given on such oath as against persons who offered to be bound as aforesaid would no more be conclusive proof of the matter stated in such deposition. Where an agreement was arrived at between the Counsel for parties that if the defendant were to take oath in a particular Gurdwara stating that the suit land was not of plaintiff and that defendant had not executed any agreement in favour of plaintiff, the suit of plaintiff be dismissed and in pursuance of the order of the Court on the basis of agreement, the defendant did take oath, there being no special oath either prescribed or taken and the suit having been dismissed on the basis of such oath.Held that the compromise arrived at between the Counsel for the plaintiff on behalf of his client and the defendant-appellant would be covered by Section 20 of the Evidence Act and the plaintiff would be bound by the statement made by the defendant if the same is found to have been made strictly in accordance with the terms offerred by him.” 15. It will be noticed that in the present case the oath was administered as per plaintiffs/petitioners statement and, therefore, there is thus no manner of doubt that the oath taken by two persons in pursuance of the offer of the petitioner amounted to admission of respondents claim on his part within the meaning of Section 20 of the Evidence Act. The two persons were the nominees of the plaintiff and the statements of the nominees by virtue of Section 20 of the Evidence Act would be treated as an admission of the parties. Thus the orders of the trial Court dated 14th October, 1988 and 30th January, 1989 were unassailable and the High Court has rightly dismissed the revision petition. | 0[ds]11. It may be noticed that both the learned Single Judge of the Karanataka High Court as well as the learned Division Bench of the Orissa High Court were correct in noticing the effect of repeal of the Oaths Act, 1873 by Section 9 of the Oaths Act, 1969. But it appears the provisions of Section 20 of the Evidence Act were not brought to their notice. The learned Judges of the Karnataka High Court and Orissa High Court were right in observing in what cases the provisions of the Oaths Act, 1873 was to continue to govern and in which cases they would cease to apply.It will be noticed that in the present case the oath wasas per plaintiffs/petitioners statement and, therefore, there is thus no manner of doubt that the oath taken by two persons in pursuance of the offer of the petitioner amounted to admission of respondents claim on his part within the meaning of Section 20 of the Evidence Act. The two persons were the nominees of the plaintiff and the statements of the nominees by virtue of Section 20 of the Evidence Act would be treated as an admission of the parties. Thus the orders of the trial Court dated 14th October, 1988 and 30th January, 1989 were unassailable and the High Court has rightly dismissed the revision petition. | 0 | 3,123 | 241 | ### Instruction:
Project the court's decision (favor (1) or against (0) the appeal) based on the case proceeding, and subsequently give an in-depth explanation by analyzing relevant sentences from the document.
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the sense that the parties desired to know something which none of them had any knowledge of- Where there is a dispute as regards a certain question and the Court is in need of information regarding the truth on that point, any statement which the referee may make is nevertheless information within the purview of Section 20 and is admissible. The reason behind admissibility of the statement is that when a party refers to another person for a statement of his views, the party approves of his utterance in anticipation and adopts that as his own. The principle is the same as that of reference to arbitration.The reference under Section 20 may be by express words or by conduct, but in any case there must be a clear admission to refer and such admissions are generally conclusive. Admissions may operate as estoppel and they do so where parties had agreed to” abide by them.” 13. A Similar question arose in J.A.Munnuswami Naidu, AIR 1977 Madras 273 (supra) before the Division Bench of the Madras High Court. There a suit had been filed on 16th June, 1971 for recovery of money against the appellant on the foot of a security bond. The second respondent in the suit was a puisne mortgagee. The appellant filed the written statement that the respondent, the first mortgagee had fraudulently suppressed the payment of interest in the security bond and if the proper account was taken the money will be due to the first respondent. When the suit was taken up for trial, the plaintiff agreed to take a special oath on his family deity that for the suit security bond no money except those shown by way of endorsement was received by him. It was “also agreed that the plaintiff mortgagee taking such an oath, the suit may be decreed. The plaintiff took a special oath and the suit was decreed. The Judgment Debtor filed an un-numbered execution application praying that the decree be declared as a nullity having been passed by the Civil Court having no jurisdiction. The executing court dismissed the objections to the execution and the matter came up in appeal before the High Court. The learned Single Judge of the High Court dismissed the appeal. Whereupon the matter was taken up before the Division Bench. Kailasam, C.J. (as His Lordship then was) and Balasubrahmanyam, J. dismissed the Letters Patent Appeal. It was submitted before the Division Bench that because the Oaths Act, 1873 has been repealled, what the plaintiff had stated on special oath is not an evidence. The learned Single Judge who had heard the appeal was confronted with the arguments that the date on which the special oath was taken the Oaths Act, 1873, which provided that when a special oath was taken under Section 10, it would be conclusive against the person who offered, was no longer in force as the said Act had been repealed in 1969 and the new Act of 1969 dispensed with the procedure as to the taking of the special oath and its consequences. It was common ground that the special oath was taken in ignorance of the fact that the Oaths Act, 1873, under which the procedure as to the taking of special oath was admitted, had been repealed and that the new Oaths Act had no provision for such a procedure. The Division Bench observed that they could not accept the contention that because Oaths Act, 1873 had been repealed, what the plaintiff has stated on special oath is not an evidence Earlier the Single Judge had taken the same view. 14. The question directly in issue came up before a Division Bench of the Punjab and Haryana High Court in Thakur Singh and Others v. Inder Singh, AIR 1976 P&H 287 . The Division Bench took the view that: “The only effect of exclusion of Sections 9 to 12 of the OathsAct, 1873 by Oaths Act 1969 is that if any party to any judicial proceeding offers to be bound by any special oath and the Court thinks it fit to administer such an oath to the other party consenting thereto and such oath is taken by the other party, the evidence given on such oath as against persons who offered to be bound as aforesaid would no more be conclusive proof of the matter stated in such deposition. Where an agreement was arrived at between the Counsel for parties that if the defendant were to take oath in a particular Gurdwara stating that the suit land was not of plaintiff and that defendant had not executed any agreement in favour of plaintiff, the suit of plaintiff be dismissed and in pursuance of the order of the Court on the basis of agreement, the defendant did take oath, there being no special oath either prescribed or taken and the suit having been dismissed on the basis of such oath.Held that the compromise arrived at between the Counsel for the plaintiff on behalf of his client and the defendant-appellant would be covered by Section 20 of the Evidence Act and the plaintiff would be bound by the statement made by the defendant if the same is found to have been made strictly in accordance with the terms offerred by him.” 15. It will be noticed that in the present case the oath was administered as per plaintiffs/petitioners statement and, therefore, there is thus no manner of doubt that the oath taken by two persons in pursuance of the offer of the petitioner amounted to admission of respondents claim on his part within the meaning of Section 20 of the Evidence Act. The two persons were the nominees of the plaintiff and the statements of the nominees by virtue of Section 20 of the Evidence Act would be treated as an admission of the parties. Thus the orders of the trial Court dated 14th October, 1988 and 30th January, 1989 were unassailable and the High Court has rightly dismissed the revision petition.
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11. It may be noticed that both the learned Single Judge of the Karanataka High Court as well as the learned Division Bench of the Orissa High Court were correct in noticing the effect of repeal of the Oaths Act, 1873 by Section 9 of the Oaths Act, 1969. But it appears the provisions of Section 20 of the Evidence Act were not brought to their notice. The learned Judges of the Karnataka High Court and Orissa High Court were right in observing in what cases the provisions of the Oaths Act, 1873 was to continue to govern and in which cases they would cease to apply.It will be noticed that in the present case the oath wasas per plaintiffs/petitioners statement and, therefore, there is thus no manner of doubt that the oath taken by two persons in pursuance of the offer of the petitioner amounted to admission of respondents claim on his part within the meaning of Section 20 of the Evidence Act. The two persons were the nominees of the plaintiff and the statements of the nominees by virtue of Section 20 of the Evidence Act would be treated as an admission of the parties. Thus the orders of the trial Court dated 14th October, 1988 and 30th January, 1989 were unassailable and the High Court has rightly dismissed the revision petition.
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ARULMIGHU NELLUKADAI MARIAMMAN TIRUKKOIL Vs. TAMILARASI (DEAD) BY LRS | Court only after assigning the reasons for framing such additional question of law at the time of hearing of the appeal.22. Adverting to the facts of this case at hand, we are at a loss to understand as to how the High Court while passing a final judgment in its concluding para could frame the substantial question of law for the first time and simultaneously answered the said question in appellant?s favour. Obviously, the learned Judge must have done it by taking recourse to sub-section (4) of Section 100 of the Code.23. Here is the case where the High Court was under a legal obligation to frame the substantial question at the time of admission of the appeal after hearing the appellant or/and his counsel under sub-section (4) of Section 100 of the Code, but the High Court did it while passing the final judgment in its concluding para.24. Such novel procedure adopted by the High Court, in our considered opinion, is wholly contrary to the scheme of Section 100 of the Code and renders the impugned judgment legally unsustainable.25. In our considered opinion, the High Court had no jurisdiction to frame the substantial question at the time of writing of its final judgment in the appeal except to the extent permitted under sub-section (5). The procedure adopted by the High Court, apart from it being against the scheme of Section 100 of the Code, also resulted in causing prejudice to the respondents because the respondents could not object to the framing of substantial question of law. Indeed, the respondents could not come to know on which question of law, the appeal was admitted for final hearing.26. In other words, since the High Court failed to frame any substantial question of law under sub-section(4) of Section 100 at the time of admission of the appeal, the respondents could not come to know on which question of law, the appeal was admitted for hearing.27. It cannot be disputed that sub-section (5) gives the respondents a right to know on which substantial question of law, the appeal was admitted for final hearing. Sub-section (5) enables the respondents to raise an objection at the time of final hearing that the question of law framed at the instance of the appellant does not really arise in the case.28. Yet, the other reason is that the respondents are only required to reply while opposing the second appeal to the question formulated by the High Court under sub-section (4) and not beyond that. If the question of law is not framed under sub-section (4) at the time of admission or before the final hearing of the appeal, there remains nothing for the respondent to oppose the second appeal at the time of hearing. In this situation, the High Court will have no jurisdiction to decide such second appeal finally for want of any substantial question(s) of law.29. The scheme of Section 100 is that once the High Court is satisfied that the appeal involves a substantial question of law, such question shall have to be framed under sub- section(4) of Section 100. It is the framing of the question which empowers the High Court to finally decide the appeal in accordance with the procedure prescribed under sub-section (5). Both the requirements prescribed in sub- sections (4) and (5) are, therefore, mandatory and have to be followed in the manner prescribed therein. Indeed, as mentioned supra, the jurisdiction to decide the second appeal finally arises only after the substantial question of law is framed under sub-section (4). There may be a case and indeed there are cases where even after framing a substantial question of law, the same can be answered against the appellant. It is, however, done only after hearing the respondents under sub-section (5).30. If, however, the High Court is satisfied after hearing the appellant at the time of admission that the appeal does not involve any substantial question of law, then such appeal is liable to be dismissed in limine without any notice to the respondents after recording a finding in the dismissal order that the appeal does not involve any substantial question of law within the meaning of sub-section (4). It is needless to say that for passing such order in limine, the High Court is required to assign the reasons in support of its conclusion.31. It is, however, of no significance, whether the respondent has appeared at the time of final hearing of the appeal or not. The High Court, in any case, has to proceed in accordance with the procedure prescribed under Section 100 while disposing of the appeal, whether in limine or at the final hearing stage.32. It is a settled principle of rule of interpretation that whenever a statute requires a particular act to be done in a particular manner then such act has to be done in that manner only and in no other manner. (See- Interpretation of Statutes by G.P. Singh, IXth Edition page 347 and Baru Ram vs. Parsanni (Smt.), AIR 1959 SC 93 ).33. The aforesaid principle applies to the case at hand because, as discussed above, the High Court failed to follow the procedure prescribed under Section 100 of the Code while allowing the second appeal and thus committed a jurisdictional error calling for interference by this Court in the impugned judgment.34. While construing Section 100, this Court in the case of Santosh Hazari vs. Purushottam Tiwari (Deceased) by L.Rs., (2001) 3 SCC 179 succinctly explained the scope, the jurisdiction and what constitutes a substantial questions of law under Section 100 of the Code.35. It is, therefore, the duty of the High Court to always keep in mind the law laid down in Santosh Hazari (supra) while formulating the question and deciding the second appeal.?15. In the light of the foregoing discussion, we cannot sustain the impugned judgment which, in our view, is not in conformity with the mandatory requirements of Section 100 of the CPC and hence calls for interference in this appeal. | 1[ds]11. The need to remand the case has occasioned because we find that the High Court failed to frame any substantial question of law arising in the case while admitting the appeal as required under Section 100 (4) of the Code of Civil Procedure, 1908 (hereinafter referred to as ?CPC?) and further failed to decide the appeal as provided under Section 100 (5) of the CPC.12. It is noticed that the High Court framed two substantial questions of law (see Para 7 of the impugned judgment) for the first time in the impugned judgment itself. In other words, what was required to be done by the High Court at the time of admission of the appeal to formulate a question of law after hearing the appellant as provided under Section 100 (4) of the CPC, but the High Court did it in the impugned judgment. Similarly, the High Court could have taken recourse to the powers conferred by proviso to Section 100 (5) of the CPC for framing any additional question of law at the time of final hearing of the appeal by assigning reasons for framing additional question, if it considered that any such question was involved. It was, however, not done. Instead, the High Court framed the questions for the first time while delivering the impugned judgment.13. In our considered opinion, the procedure and the manner in which the High Court decided the second appeal regardless of the fact whether it was allowed or dismissed cannot be countenanced. It is not in conformity with the mandatory procedure laid down in Section 100 of the CPC.In the light of the foregoing discussion, we cannot sustain the impugned judgment which, in our view, is not in conformity with the mandatory requirements of Section 100 of the CPC and hence calls for interference in this appeal. | 1 | 2,572 | 346 | ### 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:
Court only after assigning the reasons for framing such additional question of law at the time of hearing of the appeal.22. Adverting to the facts of this case at hand, we are at a loss to understand as to how the High Court while passing a final judgment in its concluding para could frame the substantial question of law for the first time and simultaneously answered the said question in appellant?s favour. Obviously, the learned Judge must have done it by taking recourse to sub-section (4) of Section 100 of the Code.23. Here is the case where the High Court was under a legal obligation to frame the substantial question at the time of admission of the appeal after hearing the appellant or/and his counsel under sub-section (4) of Section 100 of the Code, but the High Court did it while passing the final judgment in its concluding para.24. Such novel procedure adopted by the High Court, in our considered opinion, is wholly contrary to the scheme of Section 100 of the Code and renders the impugned judgment legally unsustainable.25. In our considered opinion, the High Court had no jurisdiction to frame the substantial question at the time of writing of its final judgment in the appeal except to the extent permitted under sub-section (5). The procedure adopted by the High Court, apart from it being against the scheme of Section 100 of the Code, also resulted in causing prejudice to the respondents because the respondents could not object to the framing of substantial question of law. Indeed, the respondents could not come to know on which question of law, the appeal was admitted for final hearing.26. In other words, since the High Court failed to frame any substantial question of law under sub-section(4) of Section 100 at the time of admission of the appeal, the respondents could not come to know on which question of law, the appeal was admitted for hearing.27. It cannot be disputed that sub-section (5) gives the respondents a right to know on which substantial question of law, the appeal was admitted for final hearing. Sub-section (5) enables the respondents to raise an objection at the time of final hearing that the question of law framed at the instance of the appellant does not really arise in the case.28. Yet, the other reason is that the respondents are only required to reply while opposing the second appeal to the question formulated by the High Court under sub-section (4) and not beyond that. If the question of law is not framed under sub-section (4) at the time of admission or before the final hearing of the appeal, there remains nothing for the respondent to oppose the second appeal at the time of hearing. In this situation, the High Court will have no jurisdiction to decide such second appeal finally for want of any substantial question(s) of law.29. The scheme of Section 100 is that once the High Court is satisfied that the appeal involves a substantial question of law, such question shall have to be framed under sub- section(4) of Section 100. It is the framing of the question which empowers the High Court to finally decide the appeal in accordance with the procedure prescribed under sub-section (5). Both the requirements prescribed in sub- sections (4) and (5) are, therefore, mandatory and have to be followed in the manner prescribed therein. Indeed, as mentioned supra, the jurisdiction to decide the second appeal finally arises only after the substantial question of law is framed under sub-section (4). There may be a case and indeed there are cases where even after framing a substantial question of law, the same can be answered against the appellant. It is, however, done only after hearing the respondents under sub-section (5).30. If, however, the High Court is satisfied after hearing the appellant at the time of admission that the appeal does not involve any substantial question of law, then such appeal is liable to be dismissed in limine without any notice to the respondents after recording a finding in the dismissal order that the appeal does not involve any substantial question of law within the meaning of sub-section (4). It is needless to say that for passing such order in limine, the High Court is required to assign the reasons in support of its conclusion.31. It is, however, of no significance, whether the respondent has appeared at the time of final hearing of the appeal or not. The High Court, in any case, has to proceed in accordance with the procedure prescribed under Section 100 while disposing of the appeal, whether in limine or at the final hearing stage.32. It is a settled principle of rule of interpretation that whenever a statute requires a particular act to be done in a particular manner then such act has to be done in that manner only and in no other manner. (See- Interpretation of Statutes by G.P. Singh, IXth Edition page 347 and Baru Ram vs. Parsanni (Smt.), AIR 1959 SC 93 ).33. The aforesaid principle applies to the case at hand because, as discussed above, the High Court failed to follow the procedure prescribed under Section 100 of the Code while allowing the second appeal and thus committed a jurisdictional error calling for interference by this Court in the impugned judgment.34. While construing Section 100, this Court in the case of Santosh Hazari vs. Purushottam Tiwari (Deceased) by L.Rs., (2001) 3 SCC 179 succinctly explained the scope, the jurisdiction and what constitutes a substantial questions of law under Section 100 of the Code.35. It is, therefore, the duty of the High Court to always keep in mind the law laid down in Santosh Hazari (supra) while formulating the question and deciding the second appeal.?15. In the light of the foregoing discussion, we cannot sustain the impugned judgment which, in our view, is not in conformity with the mandatory requirements of Section 100 of the CPC and hence calls for interference in this appeal.
### Response:
1
### Explanation:
11. The need to remand the case has occasioned because we find that the High Court failed to frame any substantial question of law arising in the case while admitting the appeal as required under Section 100 (4) of the Code of Civil Procedure, 1908 (hereinafter referred to as ?CPC?) and further failed to decide the appeal as provided under Section 100 (5) of the CPC.12. It is noticed that the High Court framed two substantial questions of law (see Para 7 of the impugned judgment) for the first time in the impugned judgment itself. In other words, what was required to be done by the High Court at the time of admission of the appeal to formulate a question of law after hearing the appellant as provided under Section 100 (4) of the CPC, but the High Court did it in the impugned judgment. Similarly, the High Court could have taken recourse to the powers conferred by proviso to Section 100 (5) of the CPC for framing any additional question of law at the time of final hearing of the appeal by assigning reasons for framing additional question, if it considered that any such question was involved. It was, however, not done. Instead, the High Court framed the questions for the first time while delivering the impugned judgment.13. In our considered opinion, the procedure and the manner in which the High Court decided the second appeal regardless of the fact whether it was allowed or dismissed cannot be countenanced. It is not in conformity with the mandatory procedure laid down in Section 100 of the CPC.In the light of the foregoing discussion, we cannot sustain the impugned judgment which, in our view, is not in conformity with the mandatory requirements of Section 100 of the CPC and hence calls for interference in this appeal.
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M/S. GENERAL RUBBER COMPANY PRIVATE LIMITED Vs. COMMISSIONER OF CENTRAL EXCISE, DELHI-II | S.N. Variava, J. 1. This Appeal is against the Judgment of the Customs, Excise and Gold (Control) Appellate Tribunal (CEGAT) dated 01.11.1999. 2. Briefly stated the facts are as follows : The Appellants are manufacturers of Grooved Rubber Sole Plates. They filed the classification list classifying their products under Tariff Item 4008.29. The Respondent insisted that the classification of their goods must be under Tariff Item No. 4016.99 and that the goods cannot be cleared until they are so classified. The Appellants, therefore, by their letter dated 21st December, 1991 agreed to classify the goods under Tariff Item 4019.99 under protest but claimed the benefit of Circular No. 175/86. 3. The Board issued a clarificatory circular dated 20th April, 1992 clarifying that the goods were classifiable under Tariff Item 4008.29. After the Boards circular, the Appellants started clearing their goods under Tariff Item 4008.29 without filing a fresh classification list. The fresh classification list was only filed by them in November, 1992. 4. A show case notice was issued to them demanding duty on the ground that they cleared the goods without filing a fresh classification list. This demand was confirmed. However, the Collector (Appeals) set aside the demand on the ground that the Boards Circular made it clear that these goods were classifiable under Tariff Item 4008.29 and the goods were to be cleared at nil rate of duty. 5. The Respondent carried the matter in Appeal to the Tribunal. The Tribunal has, by the impugned Judgment, held that as a fresh classification list was not filed, the Appellants could only have the goods cleared under the old classification list. The Tribunal held that they were, thus, liable to pay the duty, as demanded. 6. We are unable to sustain the Order of the Tribunal on the facts of this case. The classification list had been revised under protest. Once the Board clarified that these goods were classifiable under Tariff Item 4008.29, the Appellant become entitled to clear the goods under that Tariff Item. At the highest, the Appellants could have been penalised for not filing a classification list under Rule 173. No duty could have been demanded from them under Rule 9.2. | 1[ds]6. We are unable to sustain the Order of the Tribunal on the facts of this case. The classification list had been revised under protest. Once the Board clarified that these goods were classifiable under Tariff Item 4008.29, the Appellant become entitled to clear the goods under that Tariff Item. At the highest, the Appellants could have been penalised for not filing a classification list under Rule 173. No duty could have been demanded from them under Rule 9.2. | 1 | 417 | 91 | ### 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:
S.N. Variava, J. 1. This Appeal is against the Judgment of the Customs, Excise and Gold (Control) Appellate Tribunal (CEGAT) dated 01.11.1999. 2. Briefly stated the facts are as follows : The Appellants are manufacturers of Grooved Rubber Sole Plates. They filed the classification list classifying their products under Tariff Item 4008.29. The Respondent insisted that the classification of their goods must be under Tariff Item No. 4016.99 and that the goods cannot be cleared until they are so classified. The Appellants, therefore, by their letter dated 21st December, 1991 agreed to classify the goods under Tariff Item 4019.99 under protest but claimed the benefit of Circular No. 175/86. 3. The Board issued a clarificatory circular dated 20th April, 1992 clarifying that the goods were classifiable under Tariff Item 4008.29. After the Boards circular, the Appellants started clearing their goods under Tariff Item 4008.29 without filing a fresh classification list. The fresh classification list was only filed by them in November, 1992. 4. A show case notice was issued to them demanding duty on the ground that they cleared the goods without filing a fresh classification list. This demand was confirmed. However, the Collector (Appeals) set aside the demand on the ground that the Boards Circular made it clear that these goods were classifiable under Tariff Item 4008.29 and the goods were to be cleared at nil rate of duty. 5. The Respondent carried the matter in Appeal to the Tribunal. The Tribunal has, by the impugned Judgment, held that as a fresh classification list was not filed, the Appellants could only have the goods cleared under the old classification list. The Tribunal held that they were, thus, liable to pay the duty, as demanded. 6. We are unable to sustain the Order of the Tribunal on the facts of this case. The classification list had been revised under protest. Once the Board clarified that these goods were classifiable under Tariff Item 4008.29, the Appellant become entitled to clear the goods under that Tariff Item. At the highest, the Appellants could have been penalised for not filing a classification list under Rule 173. No duty could have been demanded from them under Rule 9.2.
### Response:
1
### Explanation:
6. We are unable to sustain the Order of the Tribunal on the facts of this case. The classification list had been revised under protest. Once the Board clarified that these goods were classifiable under Tariff Item 4008.29, the Appellant become entitled to clear the goods under that Tariff Item. At the highest, the Appellants could have been penalised for not filing a classification list under Rule 173. No duty could have been demanded from them under Rule 9.2.
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Hy Lay Poultry Farms Vs. State of Haryana | BHAGWATI, J.1. This is an appeal by special leave directed against the judgment of High Court of Punjab and Haryana rejecting a writ petition preferred by the appellants in limine without issuing a rule to the respondent. The writ petition sought to challenge an assessment order made by the Additional Excise and Taxation-cum-Assessing Authority, Karnal assessing the appellant to sales-tax for the assessment year 1970-71 in respect of certain sales of chicks, some under the Punjab ST Act, 1948 and others under the Central ST Act, 1956. The main question which was raised in the Writ Petition was whether in the circumstances of the case, it could be said that the transfer of chick from Karnal to Delhi made by the appellant during the assessment year 1970-71, was by way of inter-State sales or intra-State sales. Now the same question under identical set of facts was also raised in the assessment of the appellants for the assessment year 1969-70 and it was decided against the appellants by the Sales Tax Tribunal but the record shows that it has been referred by the Sales Tax Tribunal to the High Court for determination, though the High Court does not appear to have received the reference so far. The appellants, on the basis of this reference, argued before the High Court that the Writ Petition in respect of the assessment year 1970-71 should be admitted and should be heard along with the reference, since the question arising in both the proceedings was identical. The High Court, however, rejected the Writ Petition in limine on the ground that the appellant had an alternative remedy under the Sales tax law, and in the circumstances, this was not a fit case in which the High Court should interfere in the exercise of its discretion. The appellant being aggrieved by this order preferred the present appeal with special leave obtained from this Court.2. Now it is true that ordinarily the High Court would not be justified in entertaining a Writ Petition which seeks to challenge the assessment for a particular assessment year, if there is an alternative remedy available to the applicant under the sales-tax law and it would not be a valid argument for the applicant to say that a reference on a similar point in respect of an earlier assessment year is pending before the High Court. That is a situation which is bound to arise in a number of cases and many assessments would be held up resulting in great detriment to the revenue if the High Court were to start entertaining writ petitions merely on the ground that a reference on the same question is pending in respect of an earlier assessment year. The High Court should ordinarily, in such cases, ask the applicant to pursue his remedy under the statute and come up before it by way of a reference. But here we find that, according to the appellant, the facts and circumstances in which the sales of chicks took place in the assessment year 1970-71 are identical with those for the assessment year 1969-70 and moreover, the only question which arises for determination in the assessment for the assessment year 1970-71 is the same as that which forms the subject-matter of reference before the High Court in respect of the assessment year 1969-70. Having regard to these peculiar facts and circumstances of the present case we think that this is an exceptionable case in which a departure from the usual rule would have been justified and the Writ Petition should have been admitted and heard by the High Court along with reference. Of course we may make it clear that we do not wish to suggest that if the reference is decided in favour of the appellants by the High Court, that should necessarily lead to allowing of the Writ Petition. Even though the point of law arising in the reference may be decided by the High Court in favour of the appellants, the question may still have to be considered whether there are any other grounds available to the respondent on which it may still resist the Writ Petition and ask for its dismissal. These are all matters which the High Court will have to consider after the reference is disposed of by it. | 1[ds]That is a situation which is bound to arise in a number of cases and many assessments would be held up resulting in great detriment to the revenue if the High Court were to start entertaining writ petitions merely on the ground that a reference on the same question is pending in respect of an earlier assessment year. The High Court should ordinarily, in such cases, ask the applicant to pursue his remedy under the statute and come up before it by way of a reference. But here we find that, according to the appellant, the facts and circumstances in which the sales of chicks took place in the assessment yearare identical with thosefor the assessment yearand moreover, the only question which arises for determination in the assessmentfor the assessment yearis the same as that which forms theof reference before the High Court in respect of the assessment yearHaving regard to these peculiar facts and circumstances of the present case we think that this is an exceptionable case in which a departure from the usual rule would have been justified and the Writ Petition should have been admitted and heard by the High Court along with reference. Of course we may make it clear that we do not wish to suggest that if the reference is decided in favour of the appellants by the High Court, that should necessarily lead to allowing of the Writ Petition. Even though the point of law arising in the reference may be decided by the High Court in favour of the appellants, the question may still have to be considered whether there are any other grounds available to the respondent on which it may still resist the Writ Petition and ask for its dismissal. These are all matters which the High Court will have to consider after the reference is disposed of by it. | 1 | 753 | 327 | ### 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:
BHAGWATI, J.1. This is an appeal by special leave directed against the judgment of High Court of Punjab and Haryana rejecting a writ petition preferred by the appellants in limine without issuing a rule to the respondent. The writ petition sought to challenge an assessment order made by the Additional Excise and Taxation-cum-Assessing Authority, Karnal assessing the appellant to sales-tax for the assessment year 1970-71 in respect of certain sales of chicks, some under the Punjab ST Act, 1948 and others under the Central ST Act, 1956. The main question which was raised in the Writ Petition was whether in the circumstances of the case, it could be said that the transfer of chick from Karnal to Delhi made by the appellant during the assessment year 1970-71, was by way of inter-State sales or intra-State sales. Now the same question under identical set of facts was also raised in the assessment of the appellants for the assessment year 1969-70 and it was decided against the appellants by the Sales Tax Tribunal but the record shows that it has been referred by the Sales Tax Tribunal to the High Court for determination, though the High Court does not appear to have received the reference so far. The appellants, on the basis of this reference, argued before the High Court that the Writ Petition in respect of the assessment year 1970-71 should be admitted and should be heard along with the reference, since the question arising in both the proceedings was identical. The High Court, however, rejected the Writ Petition in limine on the ground that the appellant had an alternative remedy under the Sales tax law, and in the circumstances, this was not a fit case in which the High Court should interfere in the exercise of its discretion. The appellant being aggrieved by this order preferred the present appeal with special leave obtained from this Court.2. Now it is true that ordinarily the High Court would not be justified in entertaining a Writ Petition which seeks to challenge the assessment for a particular assessment year, if there is an alternative remedy available to the applicant under the sales-tax law and it would not be a valid argument for the applicant to say that a reference on a similar point in respect of an earlier assessment year is pending before the High Court. That is a situation which is bound to arise in a number of cases and many assessments would be held up resulting in great detriment to the revenue if the High Court were to start entertaining writ petitions merely on the ground that a reference on the same question is pending in respect of an earlier assessment year. The High Court should ordinarily, in such cases, ask the applicant to pursue his remedy under the statute and come up before it by way of a reference. But here we find that, according to the appellant, the facts and circumstances in which the sales of chicks took place in the assessment year 1970-71 are identical with those for the assessment year 1969-70 and moreover, the only question which arises for determination in the assessment for the assessment year 1970-71 is the same as that which forms the subject-matter of reference before the High Court in respect of the assessment year 1969-70. Having regard to these peculiar facts and circumstances of the present case we think that this is an exceptionable case in which a departure from the usual rule would have been justified and the Writ Petition should have been admitted and heard by the High Court along with reference. Of course we may make it clear that we do not wish to suggest that if the reference is decided in favour of the appellants by the High Court, that should necessarily lead to allowing of the Writ Petition. Even though the point of law arising in the reference may be decided by the High Court in favour of the appellants, the question may still have to be considered whether there are any other grounds available to the respondent on which it may still resist the Writ Petition and ask for its dismissal. These are all matters which the High Court will have to consider after the reference is disposed of by it.
### Response:
1
### Explanation:
That is a situation which is bound to arise in a number of cases and many assessments would be held up resulting in great detriment to the revenue if the High Court were to start entertaining writ petitions merely on the ground that a reference on the same question is pending in respect of an earlier assessment year. The High Court should ordinarily, in such cases, ask the applicant to pursue his remedy under the statute and come up before it by way of a reference. But here we find that, according to the appellant, the facts and circumstances in which the sales of chicks took place in the assessment yearare identical with thosefor the assessment yearand moreover, the only question which arises for determination in the assessmentfor the assessment yearis the same as that which forms theof reference before the High Court in respect of the assessment yearHaving regard to these peculiar facts and circumstances of the present case we think that this is an exceptionable case in which a departure from the usual rule would have been justified and the Writ Petition should have been admitted and heard by the High Court along with reference. Of course we may make it clear that we do not wish to suggest that if the reference is decided in favour of the appellants by the High Court, that should necessarily lead to allowing of the Writ Petition. Even though the point of law arising in the reference may be decided by the High Court in favour of the appellants, the question may still have to be considered whether there are any other grounds available to the respondent on which it may still resist the Writ Petition and ask for its dismissal. These are all matters which the High Court will have to consider after the reference is disposed of by it.
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Chennai Metropolitan Development Authority Rep. by its Member- Secretary & Anr Vs. Prestige Estates Project Ltd | Tamil Nadu v Hind Stone (1981) 2 SCC 205 , Justice O Chinnappa Reddy speaking for a Bench of two learned judges of this Court, while interpreting the provisions of Rule 2 (A) of the Mines and Minerals (Regulation and Development) Act 1957 observed : 13…While it is true that such applications should be dealt with within a reasonable time, it cannot on that account be said that the right to have an application disposed of in a reasonable time clothes an applicant for a lease with a right to have the application disposed of on the basis of the rules in force at the time of the making of the application. No one has a vested right to the grant or renewal of a lease and none can claim a vested right to have an application for the grant or renewal of a lease dealt with in a particular way, by applying particular provisions. In the absence of any vested rights in anyone, an application for a lease has necessarily to be dealt with according to the rules in force on the date of the disposal of the application despite the fact that there is a long delay since the making of the application. We are, therefore, unable to accept the submission of the learned counsel that applications for the grant of renewal of leases made long prior to the date of GOMs No. 1312 should be dealt with as if Rule 8-C did not exist. The same principle was followed by another two judge Bench of this Court in Howrah Municipal Corporation v Ganges Rope Co. Ltd.(2004) 1 SCC 663 . Justice D M Dharmadhikari speaking for the court held : 17…The statutory provisions regulating sanction for construction within the municipal area are intended to ensure proper administration of the area and provide proper civic amenities to it. The paramount considerations of regulatory provisions for construction activities are public interest and convenience. On the subject of seeking sanction for construction, no vested right can be claimed by any citizen divorced from public interest or public convenience. This Court held that the provisions contained in the Howrah Municipal Corporation Act 1980 contemplate an express sanction before a person can be allowed to construct or erect a building. Hence, in ordinary course, no vested right is created merely by the submission of an application for sanction to construct a building. Adverting to the decision in Usman Gani J. Khatri of Bombay v Cantonment Board (1992) 3 SCC 455 , the Court held thus: 30. This Court, thus, has taken a view that the Building Rules or Regulations prevailing at the time of sanction would govern the subject of sanction and not the Rules and Regulations existing on the date of application for sanction. In Commissioner of Municipal Corporation, Shimla v Prem Lata Sood (2007) 11 SCC 40 , Justice S B Sinha speaking for a two judge Bench observed thus: 30…even in the order of sanction passed in favour of the respondents by the State, a condition was imposed that before undertaking the development activities by way of erection of the building, the respondents would take the requisite sanction from the Municipal Corporation. Even if such a condition had not been imposed, the provisions of the Municipal Corporation Act, as noticed hereinbefore, would operate. 36. It is now well settled that where a statute provides for a right, but enforcement thereof is in several stages, unless and until the conditions precedent laid down therein are satisfied, no right can be said to have been vested in the person concerned. The law operating in this behalf, in our opinion is no longer res integra. The same view has been taken by a Bench of three judges of this Court in New Delhi Municipal Council v Tanvi Trading and Credit Private Limited (2008) 8 SCC 765. Justice J M Panchal speaking for the court held : 39. It is well settled that the law for approval of the building plan would be the date on which the approval is granted and not the date on which the plans are submitted. This is so in view of para 24 of the decision of this Court in Usman Gani J. Khatri v. Cantonment Board [(1992) 3 SCC 455] . It would not be out of place to mention that on 7-2-2007, the Master Plan, 2021 has been approved in which the LBZ guidelines have been incorporated and since the plan submitted by the respondents was not approved up to the date of coming into force of Master Plan of 2021, the LBZ guidelines will apply with full force to the plan submitted by the respondents and the plan which is contrary to the LBZ guidelines could not have been directed to be sanctioned. 26. Mr Rana Mukherjee, learned Senior Counsel appearing on behalf of the respondent sought to make a distinction on the ground that this principle will apply as regards regulatory aspects of the development regulations, not in regard to the demand of Premium FSI charges. We are unable to accept the contention simply because the demand on account of Premium FSI charges arises upon the grant of planning permission to avail of Premium FSI. The respondent, as the developer, is liable to pay the revised charges which are applicable post 1 April 2012 when planning permission has been granted. Learned counsel for the respondent also relied on the decision in Union of India v Mahajan Industries Ltd.(2005) 10 SCC 203 . The case is clearly distinguishable since the judgment of this Court adverted to the position which was laid down in a judgment of the Delhi High Court that the crucial date for calculating conversion charges has to be the date of the receipt of the application for conversion. Significantly, the counsel for the Union of India did not contest the correctness of the view of the High Court in that regard. The factual situation in the present case is clearly distinguishable. | 1[ds]17. Premium FSI is the Floor Space Index over and above that which is normally allowable and is not to exceed 0.5 for special buildings and group developments or 1.0 for multi-storeyed buildings in specific areas. The rates for premium FSI are prescribed with the approval of the Government18. On 27 March 2012, the appellant raised a demand on the respondent for the payment of charges including:(i) I & A charges of Rs. 8,34,40,000/-; andFSI charges for 78690.55 sq.mtrs in the amount of Rs. 44,75,88,000/-While raising the demand, the respondent was informed of the conditions required to be complied with in order to ensure the grant of planning permission. The letter specifically stated that while the grant of planning permission depended upon the fulfillment of the conditions stipulated in the letter, pre-payment of the development charges and other charges would not entitle the respondent to planning permission but only to a refund if planning permission were to be refused19. On 28 March 2012, the Housing and Urban Development Department of the Government of Tamil Nadu issued G.O.Ms No. 86 stipulating that:(i) The minimum and maximum rates as specified in Rule 4 of the I & A Rules 2008 shall be done away with; and(ii) The I & A charges for different categories and buildings falling under the jurisdiction of the appellant and of the Commissioner of Town and Country Planning were to stand increased by 50 per cent over the then prevailing rates. Thus, for instance, the I & A charges for multi-storeyed residential buildings were sought to be revised for the Chennai Metropolitan Development Planning Areas from Rs. 250 per sq. mtr to Rs. 375 per sq.mtr20. It was in view of the provisions contained in clause (6) extracted above that the Division Bench in its judgment dated 1 August 2014 recorded, having enquired of the Advocate General, as to whether any proposal for the amendment of the rules had been initiated. The Advocate General informed the High Court that while steps to amend the rules had been initiated, it would take about two months to complete the process of amending them. It was in this view of the matter and the statement of the Advocate General that the High Court recorded that as on the date of its judgment, no amendment was made to the Rules 2008 for the purpose of increasing the I & A charges. Rule 4 as it stands prescribes the minimum and the maximum rates for the levy of I & A chargesRule 5(2) empowers the Vice-Chairman of Chennai Metropolitan Development Authority to fix the rates for the Chennai Metropolitan Development Planning Areas, while observing the minimum and the maximum rates set out in Rule 4. The proposal which was initiated by the government on 28 March 2012 envisaged the elimination of the minimum and maximum rates specified in Rule 4 as a result of which clause (6) of G.O.Ms. 86 incorporates a requirement of amending the Rules 2008. Absent an amendment to the Rules 2008, the High Court held that the demand for I & A charges at the revised rate could not be enforced against the respondent. A revision of the I & A charges could have been effected by the Vice-Chairman of the appellant in terms of Rule 5(2) without a formal amendment to the Rules 2008, so long as the minimum and maximum provided in Rule 4 is not breached. However, it appears that the government took the view that an amendment to the rules was necessitated since the table specifying the minimum and maximum in Rule 4 was to be abrogated. It was for the above reason that the High Court came to the conclusion that a revised demand for I & A charges could not be enforced in the absence of an amendment to the Rules 2008. Section 63B requires that the minimum and maximum rates should be prescribed. This will have to be borne in mind by the government. Subordinate legislation has to be in conformity with parent legislation21 The High Court also adverted to the Internal Office Circular/Order dated 16 April 2012 of the appellant which specified that while the revised I & A charges were leviable with effect from the issuance of G.O.Ms. No. 86 on 28 March 2012:i.The revised rate of Infrastructure & Amenities charges are applicable for the Planning Permission Applications, where Development Charges advice was sent on or after 28.03.2012. In the case of Planning Permission Applications for which DC advice dated prior to 28.03.2012, the pre-revised rates only applicableIn terms of the above office order, cases where the Development Charges advice was sent prior to 28 March 2012 would be governed by the pre-revised rates. The government is bound by its own decision. Consequently, on this aspect of the matter, we are in agreement with the view of the High Court that the revised I & A charges were not lawfully demanded from the appellant to whom the development charges advice had been issued prior to 28 March 2012The levy of Premium FSI charges under Regulation 36 is incident to the planning authority allowing Premium FSI over and above the FSI which is normally allowable. In other words, it is upon and subject to the grant of Premium FSI that the authority can demand Premium FSI charges. If no Premium FSI is sanctioned, obviously there would be no occasion to demand a charge for Premium FSI. Similarly, if planning permission were to be refused, the deposit which is made by the developer would be refunded. This was categorically stated in the demand which was raised on the respondent on 27 March 201223. Planning permission is granted by the planning authority upon an application for permission which is made under Section 49 of the Planning Act 1971. In the present case, the planning permission was granted upon an interim order of the High Court, subject to the deposit of Rs. 10 Crores on 13 March 2013. Though the appellant received the approval of the Housing and Urban Development Department on 5 January 2012 following the recommendation of the Multi-storyed Building Panel, the grant of planning permission was still to be considered by the Planning Authority. The letter dated 5 January 2012 of the Housing and Urban Development Department contemplates that several steps were still to be taken including the transfer to the road widening portion to Chennai Metropolitan Development Authority, the issuance of an NOC by the Sewerage Board and the fulfillment of all requisite conditions under the development regulations. Moreover, even after compliance with those conditions, the appellant had to process the grant of planning permission. The letter of demand that was issued by the appellant on 27 March 2012 similarly required the fulfillment of several conditions precedent upon which the application for the grant of planning permission would be considered24. On 27 March 2012, while issuing a demand notice to the respondent, it was made clear by the appellant that the planning permission was still to be issued. The submission of the application for permission and the steps taken by the respondent to comply with the conditions and the deposit of the charges did not confer a vested right in the respondent for the grant of planning permission. The grant of planning permission would only ensue upon the appellant scrutinizing the application and determining that the permissions which were sought were in accordance with the development regulations and all other planning requirements holding the field. Before the planning permission was issued, the revised charges for Premium FSI came to be enforced. Once the revised charges came into force with effect from 1 April 2012, the respondent, as the applicant for planning permission, was bound to pay the revised charges. As on 1 April 2012, the respondent had no planning permission in its favour. The submission of the respondent that planning permission was issued in May 2012 evidently will not advance the case of the respondent. The grant of any permission post the revision of the Premium FSI charges would necessarily be subject to the revised charges. Hence, in raising the demand on the basis of the revised charges on 22 August 2012, the appellant was acting in accordance with law26. Mr Rana Mukherjee, learned Senior Counsel appearing on behalf of the respondent sought to make a distinction on the ground that this principle will apply as regards regulatory aspects of the development regulations, not in regard to the demand of Premium FSI chargesWe are unable to accept the contention simply because the demand on account of Premium FSI charges arises upon the grant of planning permission to avail of Premium FSI. The respondent, as the developer, is liable to pay the revised charges which are applicable post 1 April 2012 when planning permission has been granted. Learned counsel for the respondent also relied on the decision in Union of India v Mahajan Industries Ltd.(2005) 10 SCC 203 . The case is clearly distinguishable since the judgment of this Court adverted to the position which was laid down in a judgment of the Delhi High Court that the crucial date for calculating conversion charges has to be the date of the receipt of the application for conversion. Significantly, the counsel for the Union of India did not contest the correctness of the view of the High Court in that regard. The factual situation in the present case is clearly distinguishable. | 1 | 6,952 | 1,700 | ### Instruction:
Estimate the outcome of the case (positive (1) or negative (0) for the appellant) and then give a reasoned explanation by examining important sentences within the case documentation.
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Tamil Nadu v Hind Stone (1981) 2 SCC 205 , Justice O Chinnappa Reddy speaking for a Bench of two learned judges of this Court, while interpreting the provisions of Rule 2 (A) of the Mines and Minerals (Regulation and Development) Act 1957 observed : 13…While it is true that such applications should be dealt with within a reasonable time, it cannot on that account be said that the right to have an application disposed of in a reasonable time clothes an applicant for a lease with a right to have the application disposed of on the basis of the rules in force at the time of the making of the application. No one has a vested right to the grant or renewal of a lease and none can claim a vested right to have an application for the grant or renewal of a lease dealt with in a particular way, by applying particular provisions. In the absence of any vested rights in anyone, an application for a lease has necessarily to be dealt with according to the rules in force on the date of the disposal of the application despite the fact that there is a long delay since the making of the application. We are, therefore, unable to accept the submission of the learned counsel that applications for the grant of renewal of leases made long prior to the date of GOMs No. 1312 should be dealt with as if Rule 8-C did not exist. The same principle was followed by another two judge Bench of this Court in Howrah Municipal Corporation v Ganges Rope Co. Ltd.(2004) 1 SCC 663 . Justice D M Dharmadhikari speaking for the court held : 17…The statutory provisions regulating sanction for construction within the municipal area are intended to ensure proper administration of the area and provide proper civic amenities to it. The paramount considerations of regulatory provisions for construction activities are public interest and convenience. On the subject of seeking sanction for construction, no vested right can be claimed by any citizen divorced from public interest or public convenience. This Court held that the provisions contained in the Howrah Municipal Corporation Act 1980 contemplate an express sanction before a person can be allowed to construct or erect a building. Hence, in ordinary course, no vested right is created merely by the submission of an application for sanction to construct a building. Adverting to the decision in Usman Gani J. Khatri of Bombay v Cantonment Board (1992) 3 SCC 455 , the Court held thus: 30. This Court, thus, has taken a view that the Building Rules or Regulations prevailing at the time of sanction would govern the subject of sanction and not the Rules and Regulations existing on the date of application for sanction. In Commissioner of Municipal Corporation, Shimla v Prem Lata Sood (2007) 11 SCC 40 , Justice S B Sinha speaking for a two judge Bench observed thus: 30…even in the order of sanction passed in favour of the respondents by the State, a condition was imposed that before undertaking the development activities by way of erection of the building, the respondents would take the requisite sanction from the Municipal Corporation. Even if such a condition had not been imposed, the provisions of the Municipal Corporation Act, as noticed hereinbefore, would operate. 36. It is now well settled that where a statute provides for a right, but enforcement thereof is in several stages, unless and until the conditions precedent laid down therein are satisfied, no right can be said to have been vested in the person concerned. The law operating in this behalf, in our opinion is no longer res integra. The same view has been taken by a Bench of three judges of this Court in New Delhi Municipal Council v Tanvi Trading and Credit Private Limited (2008) 8 SCC 765. Justice J M Panchal speaking for the court held : 39. It is well settled that the law for approval of the building plan would be the date on which the approval is granted and not the date on which the plans are submitted. This is so in view of para 24 of the decision of this Court in Usman Gani J. Khatri v. Cantonment Board [(1992) 3 SCC 455] . It would not be out of place to mention that on 7-2-2007, the Master Plan, 2021 has been approved in which the LBZ guidelines have been incorporated and since the plan submitted by the respondents was not approved up to the date of coming into force of Master Plan of 2021, the LBZ guidelines will apply with full force to the plan submitted by the respondents and the plan which is contrary to the LBZ guidelines could not have been directed to be sanctioned. 26. Mr Rana Mukherjee, learned Senior Counsel appearing on behalf of the respondent sought to make a distinction on the ground that this principle will apply as regards regulatory aspects of the development regulations, not in regard to the demand of Premium FSI charges. We are unable to accept the contention simply because the demand on account of Premium FSI charges arises upon the grant of planning permission to avail of Premium FSI. The respondent, as the developer, is liable to pay the revised charges which are applicable post 1 April 2012 when planning permission has been granted. Learned counsel for the respondent also relied on the decision in Union of India v Mahajan Industries Ltd.(2005) 10 SCC 203 . The case is clearly distinguishable since the judgment of this Court adverted to the position which was laid down in a judgment of the Delhi High Court that the crucial date for calculating conversion charges has to be the date of the receipt of the application for conversion. Significantly, the counsel for the Union of India did not contest the correctness of the view of the High Court in that regard. The factual situation in the present case is clearly distinguishable.
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breached. However, it appears that the government took the view that an amendment to the rules was necessitated since the table specifying the minimum and maximum in Rule 4 was to be abrogated. It was for the above reason that the High Court came to the conclusion that a revised demand for I & A charges could not be enforced in the absence of an amendment to the Rules 2008. Section 63B requires that the minimum and maximum rates should be prescribed. This will have to be borne in mind by the government. Subordinate legislation has to be in conformity with parent legislation21 The High Court also adverted to the Internal Office Circular/Order dated 16 April 2012 of the appellant which specified that while the revised I & A charges were leviable with effect from the issuance of G.O.Ms. No. 86 on 28 March 2012:i.The revised rate of Infrastructure & Amenities charges are applicable for the Planning Permission Applications, where Development Charges advice was sent on or after 28.03.2012. In the case of Planning Permission Applications for which DC advice dated prior to 28.03.2012, the pre-revised rates only applicableIn terms of the above office order, cases where the Development Charges advice was sent prior to 28 March 2012 would be governed by the pre-revised rates. The government is bound by its own decision. Consequently, on this aspect of the matter, we are in agreement with the view of the High Court that the revised I & A charges were not lawfully demanded from the appellant to whom the development charges advice had been issued prior to 28 March 2012The levy of Premium FSI charges under Regulation 36 is incident to the planning authority allowing Premium FSI over and above the FSI which is normally allowable. In other words, it is upon and subject to the grant of Premium FSI that the authority can demand Premium FSI charges. If no Premium FSI is sanctioned, obviously there would be no occasion to demand a charge for Premium FSI. Similarly, if planning permission were to be refused, the deposit which is made by the developer would be refunded. This was categorically stated in the demand which was raised on the respondent on 27 March 201223. Planning permission is granted by the planning authority upon an application for permission which is made under Section 49 of the Planning Act 1971. In the present case, the planning permission was granted upon an interim order of the High Court, subject to the deposit of Rs. 10 Crores on 13 March 2013. Though the appellant received the approval of the Housing and Urban Development Department on 5 January 2012 following the recommendation of the Multi-storyed Building Panel, the grant of planning permission was still to be considered by the Planning Authority. The letter dated 5 January 2012 of the Housing and Urban Development Department contemplates that several steps were still to be taken including the transfer to the road widening portion to Chennai Metropolitan Development Authority, the issuance of an NOC by the Sewerage Board and the fulfillment of all requisite conditions under the development regulations. Moreover, even after compliance with those conditions, the appellant had to process the grant of planning permission. The letter of demand that was issued by the appellant on 27 March 2012 similarly required the fulfillment of several conditions precedent upon which the application for the grant of planning permission would be considered24. On 27 March 2012, while issuing a demand notice to the respondent, it was made clear by the appellant that the planning permission was still to be issued. The submission of the application for permission and the steps taken by the respondent to comply with the conditions and the deposit of the charges did not confer a vested right in the respondent for the grant of planning permission. The grant of planning permission would only ensue upon the appellant scrutinizing the application and determining that the permissions which were sought were in accordance with the development regulations and all other planning requirements holding the field. Before the planning permission was issued, the revised charges for Premium FSI came to be enforced. Once the revised charges came into force with effect from 1 April 2012, the respondent, as the applicant for planning permission, was bound to pay the revised charges. As on 1 April 2012, the respondent had no planning permission in its favour. The submission of the respondent that planning permission was issued in May 2012 evidently will not advance the case of the respondent. The grant of any permission post the revision of the Premium FSI charges would necessarily be subject to the revised charges. Hence, in raising the demand on the basis of the revised charges on 22 August 2012, the appellant was acting in accordance with law26. Mr Rana Mukherjee, learned Senior Counsel appearing on behalf of the respondent sought to make a distinction on the ground that this principle will apply as regards regulatory aspects of the development regulations, not in regard to the demand of Premium FSI chargesWe are unable to accept the contention simply because the demand on account of Premium FSI charges arises upon the grant of planning permission to avail of Premium FSI. The respondent, as the developer, is liable to pay the revised charges which are applicable post 1 April 2012 when planning permission has been granted. Learned counsel for the respondent also relied on the decision in Union of India v Mahajan Industries Ltd.(2005) 10 SCC 203 . The case is clearly distinguishable since the judgment of this Court adverted to the position which was laid down in a judgment of the Delhi High Court that the crucial date for calculating conversion charges has to be the date of the receipt of the application for conversion. Significantly, the counsel for the Union of India did not contest the correctness of the view of the High Court in that regard. The factual situation in the present case is clearly distinguishable.
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Hotel Horizon Private Limited Vs. Manish Sharma | produced any evidence nor any material in support of their claim that the goods supplied were of substandard quality, or that there was bona fide dispute about the amount due and payable and further that this court has already held that if the liability subsists on the date of filing of the petition, merely because it stands barred after filing and during the pendency of the petition, it would not result in cessation of the liability of the company nor it would debar the petitioner from pursuing with the petition for winding up of the company.4.Learned advocate appearing for the appellant submitted that the appellant is not pressing for the ground that the claim was barred by limitation during the pendency of the petition as the law in that regard is well settled. Hence the challenge is merely on the grounds that the goods supplied were of substandard quality and that there was bona fide dispute regarding the amount to be paid as the respondent had charged higher rates. In support of his contentions , apart from drawing our attention to the correspondence which was entered into between the parties since March 1994 onwards, no other material could be pointed out by the learned advocate which could reveal that pursuant to the supply of the goods, the appellant had raised any dispute regarding the quality of the goods supplied. There is no material which could reveal that the appellant has raised specific dispute regarding the rates of the goods which were supplied to the respondent. To the specific query by the court, as to whether the appellant had at any time offered the respondent to pay the price at any particular rate other than the rate at which it was claimed by the respondent, the learned advocate for the appellant could not point out any such offer having been made by the appellant at any point of time. Obviously the record nowhere discloses any bona fide dispute having been raised by the appellant regarding the rates of the goods supplied by the respondent. Merely claiming that higher rates were charged for the goods supplied does not amount to raising a bona fide dispute regarding the amount payable for the goods supplied. If there was any dispute regarding the goods supplied and the supplier had charged higher rates, it was the duty of the appellant to point out the correct rate and accordingly offer the price according to such rates. Once the appellant had not offered any such amount to the respondent, the appellant cannot contend that there was a bona fide dispute raised in respect of the rates for goods supplied.5.As regards the quality of the goods as already observed above there is no material to show that at any point of time the quality of the goods was shown to be of substandard nature or any dispute in that regard was raised by the appellant prior to 5th March 1994. The said date assumes relevancy because the goods were supplied during the period from July 1993 to October 1993 and the cheques for the amounts of Rs.5197.20, Rs.5000/-, Rs.10,285.05 and Rs.10,000/- issued on 9.9.93, 29.9.93, 5.10.93 and 30.9.93, respectively and all those cheques were dishonoured. It was only after the dishonour of the cheques, the appellant thought of raising the dispute regarding the quality of the goods supplied and the rates of the goods and that too without giving any details about the quality or the correct rates, if any, of the goods. In that regard it is worthwhile to reproduce the contents of the letter dated 5th March 1994 wherein the so called bona fide dispute was sought to be raised for the first time. The relevant portion of the letter reads thus:"- Your rates are found to be quite high compared to the prevailing market rates.- Your bills are not in agreement with the challans since they are found always altered/ tampered.- Often it has been found that the rates charged are higher than the contracted rates.- The quality supplied by you is inferior.- The supply was restarted with you and on an assurance given by you that the irregularities in your previous contract (Refer Nitin Trading Corporation) occurred would not continue any more."6.Plain reading of the above portion of the letter dated 5th March 1994 discloses that there were no particulars disclosed in any manner by the appellant as regards either the quality of the goods supplied or regarding the rates of the goods supplied to the appellant. A vague statement to the effect that he had charged higher rates in comparison to the prevailing market rates or that the goods supplied were of inferior quality by itself is not sufficient to say that there was a bona fide dispute raised regarding the goods supplied. It was necessary for the appellant to point out the difference between the prevailing market rates and the rates at which the goods were supplied and also in what manner the quality of the goods was inferior and to what extent. In the absence of any particulars in that regard, it cannot be said that there was any bona fide dispute regarding the quality or rates of the goods supplied.7.No other point has been raised in support of the challenge to the impugned order. There is no case made out for interference in the impugned order. The materials on record show that the goods were in fact supplied to the appellant by the respondent and in that regard the amount was required to be paid by the appellant to the respondent and the same was not paid. Even the four cheques issued by the appellant were dishonoured.8.Our attention was sought to be drawn to the fact that the criminal complaint filed by the respondent was dismissed. Perusal of the said order discloses that the dismissal was on account of the fact that the dispute between the parties was of a civil nature and therefore no criminal liability could have been fastened. | 0[ds]It was necessary for the appellant to point out the difference between the prevailing market rates and the rates at which the goods were supplied and also in what manner the quality of the goods was inferior and to what extent. In the absence of any particulars in that regard, it cannot be said that there was any bona fide dispute regarding the quality or rates of the goods supplied.7.No other point has been raised in support of the challenge to the impugned order. There is no case made out for interference in the impugned order. The materials on record show that the goods were in fact supplied to the appellant by the respondent and in that regard the amount was required to be paid by the appellant to the respondent and the same was not paid. Even the four cheques issued by the appellant were dishonoured.8.Our attention was sought to be drawn to the fact that the criminal complaint filed by the respondent was dismissed. Perusal of the said order discloses that the dismissal was on account of the fact that the dispute between the parties was of a civil nature and therefore no criminal liability could have been fastened. | 0 | 1,209 | 213 | ### Instruction:
Speculate on the likely judgment (yes (1) or no (0) to the appeal) and then delve into the case proceeding to elucidate your prediction, focusing on critical sentences.
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produced any evidence nor any material in support of their claim that the goods supplied were of substandard quality, or that there was bona fide dispute about the amount due and payable and further that this court has already held that if the liability subsists on the date of filing of the petition, merely because it stands barred after filing and during the pendency of the petition, it would not result in cessation of the liability of the company nor it would debar the petitioner from pursuing with the petition for winding up of the company.4.Learned advocate appearing for the appellant submitted that the appellant is not pressing for the ground that the claim was barred by limitation during the pendency of the petition as the law in that regard is well settled. Hence the challenge is merely on the grounds that the goods supplied were of substandard quality and that there was bona fide dispute regarding the amount to be paid as the respondent had charged higher rates. In support of his contentions , apart from drawing our attention to the correspondence which was entered into between the parties since March 1994 onwards, no other material could be pointed out by the learned advocate which could reveal that pursuant to the supply of the goods, the appellant had raised any dispute regarding the quality of the goods supplied. There is no material which could reveal that the appellant has raised specific dispute regarding the rates of the goods which were supplied to the respondent. To the specific query by the court, as to whether the appellant had at any time offered the respondent to pay the price at any particular rate other than the rate at which it was claimed by the respondent, the learned advocate for the appellant could not point out any such offer having been made by the appellant at any point of time. Obviously the record nowhere discloses any bona fide dispute having been raised by the appellant regarding the rates of the goods supplied by the respondent. Merely claiming that higher rates were charged for the goods supplied does not amount to raising a bona fide dispute regarding the amount payable for the goods supplied. If there was any dispute regarding the goods supplied and the supplier had charged higher rates, it was the duty of the appellant to point out the correct rate and accordingly offer the price according to such rates. Once the appellant had not offered any such amount to the respondent, the appellant cannot contend that there was a bona fide dispute raised in respect of the rates for goods supplied.5.As regards the quality of the goods as already observed above there is no material to show that at any point of time the quality of the goods was shown to be of substandard nature or any dispute in that regard was raised by the appellant prior to 5th March 1994. The said date assumes relevancy because the goods were supplied during the period from July 1993 to October 1993 and the cheques for the amounts of Rs.5197.20, Rs.5000/-, Rs.10,285.05 and Rs.10,000/- issued on 9.9.93, 29.9.93, 5.10.93 and 30.9.93, respectively and all those cheques were dishonoured. It was only after the dishonour of the cheques, the appellant thought of raising the dispute regarding the quality of the goods supplied and the rates of the goods and that too without giving any details about the quality or the correct rates, if any, of the goods. In that regard it is worthwhile to reproduce the contents of the letter dated 5th March 1994 wherein the so called bona fide dispute was sought to be raised for the first time. The relevant portion of the letter reads thus:"- Your rates are found to be quite high compared to the prevailing market rates.- Your bills are not in agreement with the challans since they are found always altered/ tampered.- Often it has been found that the rates charged are higher than the contracted rates.- The quality supplied by you is inferior.- The supply was restarted with you and on an assurance given by you that the irregularities in your previous contract (Refer Nitin Trading Corporation) occurred would not continue any more."6.Plain reading of the above portion of the letter dated 5th March 1994 discloses that there were no particulars disclosed in any manner by the appellant as regards either the quality of the goods supplied or regarding the rates of the goods supplied to the appellant. A vague statement to the effect that he had charged higher rates in comparison to the prevailing market rates or that the goods supplied were of inferior quality by itself is not sufficient to say that there was a bona fide dispute raised regarding the goods supplied. It was necessary for the appellant to point out the difference between the prevailing market rates and the rates at which the goods were supplied and also in what manner the quality of the goods was inferior and to what extent. In the absence of any particulars in that regard, it cannot be said that there was any bona fide dispute regarding the quality or rates of the goods supplied.7.No other point has been raised in support of the challenge to the impugned order. There is no case made out for interference in the impugned order. The materials on record show that the goods were in fact supplied to the appellant by the respondent and in that regard the amount was required to be paid by the appellant to the respondent and the same was not paid. Even the four cheques issued by the appellant were dishonoured.8.Our attention was sought to be drawn to the fact that the criminal complaint filed by the respondent was dismissed. Perusal of the said order discloses that the dismissal was on account of the fact that the dispute between the parties was of a civil nature and therefore no criminal liability could have been fastened.
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It was necessary for the appellant to point out the difference between the prevailing market rates and the rates at which the goods were supplied and also in what manner the quality of the goods was inferior and to what extent. In the absence of any particulars in that regard, it cannot be said that there was any bona fide dispute regarding the quality or rates of the goods supplied.7.No other point has been raised in support of the challenge to the impugned order. There is no case made out for interference in the impugned order. The materials on record show that the goods were in fact supplied to the appellant by the respondent and in that regard the amount was required to be paid by the appellant to the respondent and the same was not paid. Even the four cheques issued by the appellant were dishonoured.8.Our attention was sought to be drawn to the fact that the criminal complaint filed by the respondent was dismissed. Perusal of the said order discloses that the dismissal was on account of the fact that the dispute between the parties was of a civil nature and therefore no criminal liability could have been fastened.
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Bhushan Kumar Puri Vs. State of Punjab and Others | first place in the list of candidates selected by the Commission according to merit; the name of one Shamsher Singh figured second in the list. However, the appellant was not recommended by the Commission for appointment because he had not on the date of the interview passed the test in Punjabi. In the advertisement inviting applications for the post one of the conditions laid down was that the "candidates shall have to pass the test (of knowledge in Punjabi) held by the Commission before interview". Shamsher Singh was accordingly recommended by the Commission. The present appellant filed a writ petition in the Punjab & Haryana High Court challenging the Commissions decision recommending Shamsher Singh for appointment. It appears that Shamsher Singhs sister was married to the son of the Chairman of the Commission Giani Lal Singh who presided over the meeting held on November 20, 1975 for selection. By his judgment and order dated August 2, 1977 Harbans Lal, J. who heard the matter allowed the writ petition and set aside the decision of the Commission selecting shamsher Singh observing "... it cannot be said that respondent 3 as Chairman of the Commission could have possibly applied his mind dispassionately while making selection of respondent 4 (Shamsher Singh) to the post and rejecting the other candidates including the petitioner". The learned Judge added that the Commission would be "at liberty to make the selection afresh". No appeal was preferred from this judgment. The Commission met again sometime in September 1977 to select a candidate for the post. Giani Lal passed the test in Punjabi on July 5, 1976. The Commission examined the qualifications, experience and the record of performance of the candidates at the interview already held and prepared a list in order of merit which was as follows :1. Bhushan Kumar Puri (appellant) 2. K. Shamsher Singh 3. Gobinder Singh Randhawa (respondent 4) The appellant was recommended by the Commission for appointment. Respondent 4 challenged the selection of the appellant by a writ petition filed in the Punjab & Haryana High Court. The High Court by the impugned judgment set aside the selection of the appellant for the post on the ground that "the fresh selection has not been made in accordance with the principles of natural justice" and directed the Commission to "hold the selection afresh after giving an opportunity to all the candidates of being heard at personal interviews". The Commission was further asked to take up to the date of the interview" to be held. The priority of this order is challenged by the appellant in the present appeal. 3. The Commission filed an affidavit in the High Court answering the allegations made in the writ petition filed by the fourth respondent. The affidavit states inter alia : While... quashing the selection of Sh. K. Shamsher Singh as Export Promotion Officer, the Honble High Court left it open to the Commission to make the selection afresh keeping in view the observations made by them in the judgment. Accordingly, the whole case was reviewed by the Commission without Giani Lal Singh who had in the meantime retired. Respondent 4 (in the writ petition : the present appellant) was not earlier selected by the Commission as he had failed to qualify in the Punjabi test held by the Commission.... By the time the Honble High Court gave its judgment on August 2, 1977, respondent 4 had passed the Punjabi Parbodh Examination held by the Language Department on July 5, 1976. This fact was taken into account by the Commission while considering the entire case afresh in the light of the judgment of the High Court... the Commission did not consider it necessary to readvertise the post and call the candidates again for interview. The Commission in their meeting held on September 1, 1977 went through the qualifications, experience and record of the performance of the candidates at the interview already held, and prepared the merit list for the post... 4. It appears from the affidavit that the Commission did not consider it necessary to readvertise the post or to call the candidates again for interview. There is also no direction either in the judgment of Harbans Lal, J. or in the judgment appeared from for readvertising the post. None of the parties who appeared before us also questioned the propriety of the decision taken by the Commission to confine the selection to among the candidates who had applied in response to the advertisement issued on September 10, 1975. It is therefore clear that the fresh selection had to be made in accordance with the conditions appearing in the said advertisement, one of which was that the candidates must pass the test in Punjabi before interview. If the Commission proposed to make the selection on the basis of the performance of the candidates at the last interview, the appellant was clearly not eligible for selection as he had not passed the test then. And if the Commission took note of the fact that the appellant had passed the test since then, it is only just that they should also take into consideration any qualification acquired by the other candidates in the meantime. It is to be remembered that the selection was being made about two years after the original selection had been set aside. If in these circumstances it is held, as the High Court has done, that the candidates should be interviewed again before the selection was made, we find no valid reason to interfere with that decision. We do not however think as the High Court does that the Commission has violated any principle of natural justice and we affirm the order of the high Court on the grounds mentioned above. We realise that it is a little hard on the appellant to have to compete again for the post for which he was twice preferred by the Commission on merit, but for the reasons we have already stated it is not possible to uphold the selection. | 0[ds]4. It appears from the affidavit that the Commission did not consider it necessary to readvertise the post or to call the candidates again for interview. There is also no direction either in the judgment of Harbans Lal, J. or in the judgment appeared from for readvertising the post. None of the parties who appeared before us also questioned the propriety of the decision taken by the Commission to confine the selection to among the candidates who had applied in response to the advertisement issued on September 10, 1975. It is therefore clear that the fresh selection had to be made in accordance with the conditions appearing in the said advertisement, one of which was that the candidates must pass the test in Punjabi before interview. If the Commission proposed to make the selection on the basis of the performance of the candidates at the last interview, the appellant was clearly not eligible for selection as he had not passed the test then. And if the Commission took note of the fact that the appellant had passed the test since then, it is only just that they should also take into consideration any qualification acquired by the other candidates in the meantime. It is to be remembered that the selection was being made about two years after the original selection had been set aside. If in these circumstances it is held, as the High Court has done, that the candidates should be interviewed again before the selection was made, we find no valid reason to interfere with that decision. We do not however think as the High Court does that the Commission has violated any principle of natural justice and we affirm the order of the high Court on the grounds mentioned above. We realise that it is a little hard on the appellant to have to compete again for the post for which he was twice preferred by the Commission on merit, but for the reasons we have already stated it is not possible to uphold the selection. | 0 | 1,242 | 363 | ### Instruction:
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first place in the list of candidates selected by the Commission according to merit; the name of one Shamsher Singh figured second in the list. However, the appellant was not recommended by the Commission for appointment because he had not on the date of the interview passed the test in Punjabi. In the advertisement inviting applications for the post one of the conditions laid down was that the "candidates shall have to pass the test (of knowledge in Punjabi) held by the Commission before interview". Shamsher Singh was accordingly recommended by the Commission. The present appellant filed a writ petition in the Punjab & Haryana High Court challenging the Commissions decision recommending Shamsher Singh for appointment. It appears that Shamsher Singhs sister was married to the son of the Chairman of the Commission Giani Lal Singh who presided over the meeting held on November 20, 1975 for selection. By his judgment and order dated August 2, 1977 Harbans Lal, J. who heard the matter allowed the writ petition and set aside the decision of the Commission selecting shamsher Singh observing "... it cannot be said that respondent 3 as Chairman of the Commission could have possibly applied his mind dispassionately while making selection of respondent 4 (Shamsher Singh) to the post and rejecting the other candidates including the petitioner". The learned Judge added that the Commission would be "at liberty to make the selection afresh". No appeal was preferred from this judgment. The Commission met again sometime in September 1977 to select a candidate for the post. Giani Lal passed the test in Punjabi on July 5, 1976. The Commission examined the qualifications, experience and the record of performance of the candidates at the interview already held and prepared a list in order of merit which was as follows :1. Bhushan Kumar Puri (appellant) 2. K. Shamsher Singh 3. Gobinder Singh Randhawa (respondent 4) The appellant was recommended by the Commission for appointment. Respondent 4 challenged the selection of the appellant by a writ petition filed in the Punjab & Haryana High Court. The High Court by the impugned judgment set aside the selection of the appellant for the post on the ground that "the fresh selection has not been made in accordance with the principles of natural justice" and directed the Commission to "hold the selection afresh after giving an opportunity to all the candidates of being heard at personal interviews". The Commission was further asked to take up to the date of the interview" to be held. The priority of this order is challenged by the appellant in the present appeal. 3. The Commission filed an affidavit in the High Court answering the allegations made in the writ petition filed by the fourth respondent. The affidavit states inter alia : While... quashing the selection of Sh. K. Shamsher Singh as Export Promotion Officer, the Honble High Court left it open to the Commission to make the selection afresh keeping in view the observations made by them in the judgment. Accordingly, the whole case was reviewed by the Commission without Giani Lal Singh who had in the meantime retired. Respondent 4 (in the writ petition : the present appellant) was not earlier selected by the Commission as he had failed to qualify in the Punjabi test held by the Commission.... By the time the Honble High Court gave its judgment on August 2, 1977, respondent 4 had passed the Punjabi Parbodh Examination held by the Language Department on July 5, 1976. This fact was taken into account by the Commission while considering the entire case afresh in the light of the judgment of the High Court... the Commission did not consider it necessary to readvertise the post and call the candidates again for interview. The Commission in their meeting held on September 1, 1977 went through the qualifications, experience and record of the performance of the candidates at the interview already held, and prepared the merit list for the post... 4. It appears from the affidavit that the Commission did not consider it necessary to readvertise the post or to call the candidates again for interview. There is also no direction either in the judgment of Harbans Lal, J. or in the judgment appeared from for readvertising the post. None of the parties who appeared before us also questioned the propriety of the decision taken by the Commission to confine the selection to among the candidates who had applied in response to the advertisement issued on September 10, 1975. It is therefore clear that the fresh selection had to be made in accordance with the conditions appearing in the said advertisement, one of which was that the candidates must pass the test in Punjabi before interview. If the Commission proposed to make the selection on the basis of the performance of the candidates at the last interview, the appellant was clearly not eligible for selection as he had not passed the test then. And if the Commission took note of the fact that the appellant had passed the test since then, it is only just that they should also take into consideration any qualification acquired by the other candidates in the meantime. It is to be remembered that the selection was being made about two years after the original selection had been set aside. If in these circumstances it is held, as the High Court has done, that the candidates should be interviewed again before the selection was made, we find no valid reason to interfere with that decision. We do not however think as the High Court does that the Commission has violated any principle of natural justice and we affirm the order of the high Court on the grounds mentioned above. We realise that it is a little hard on the appellant to have to compete again for the post for which he was twice preferred by the Commission on merit, but for the reasons we have already stated it is not possible to uphold the selection.
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4. It appears from the affidavit that the Commission did not consider it necessary to readvertise the post or to call the candidates again for interview. There is also no direction either in the judgment of Harbans Lal, J. or in the judgment appeared from for readvertising the post. None of the parties who appeared before us also questioned the propriety of the decision taken by the Commission to confine the selection to among the candidates who had applied in response to the advertisement issued on September 10, 1975. It is therefore clear that the fresh selection had to be made in accordance with the conditions appearing in the said advertisement, one of which was that the candidates must pass the test in Punjabi before interview. If the Commission proposed to make the selection on the basis of the performance of the candidates at the last interview, the appellant was clearly not eligible for selection as he had not passed the test then. And if the Commission took note of the fact that the appellant had passed the test since then, it is only just that they should also take into consideration any qualification acquired by the other candidates in the meantime. It is to be remembered that the selection was being made about two years after the original selection had been set aside. If in these circumstances it is held, as the High Court has done, that the candidates should be interviewed again before the selection was made, we find no valid reason to interfere with that decision. We do not however think as the High Court does that the Commission has violated any principle of natural justice and we affirm the order of the high Court on the grounds mentioned above. We realise that it is a little hard on the appellant to have to compete again for the post for which he was twice preferred by the Commission on merit, but for the reasons we have already stated it is not possible to uphold the selection.
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Md. Mounuddin & Others Vs. Commnr. Of Co-op. and Regr. & Co-op. Soc. & Others | the Registrar has disclosed that as many as 34 members who sought such membership after 25-9-1996, have invested sums ranging from Rs.1500/- to Rs.2,40,000/-, in all a sum of Rs.17,48,569/-. For the said sum the break-up of the expenses has also been disclosed in the annexure. De hors the question whether such investments made and the expenses incurred is to be scrutinized and the veracity of such expenses incurred by the society are to be accepted or not the fact emerges that the founder members, as well as those who subsequently came to be admitted as members, have invested large sums by way of deposits into the society. The question for consideration, therefore, is how to treat those sums, once it was brought into the funds of the society.35. In this context, Bye-Law No.17 assumes significance. It will have to be stated that whatever maybe the intention of the members of the society, while making various deposits into the accounts of the society, since, the funds of the society can be regulated only as per the Bye-Laws of the society whatever sum invested by the members of the society, can be either towards the share capital, which cannot exceed 5000 shares of Rs.100 each or by way of deposits by the members as provided under Bye-Law No.17. Since, the membership has been confirmed based on the shares acquired by each of the individuals, whatever other sum brought into the accounts of the society, can only be taken as the deposits of the members. Therefore, the amount deposited by the individual members of the society can be utilized only to meet the cost of the land originally purchased nearly 1 acre and 14 guntas in Survey No.233 of Thokatta Village or for any future investment to be made in any other lands to be purchased or to be used for advancing any loan for the purpose of construction of building by the members. In other words, the individual members cannot seek to claim that because the purchase of land in Survey No.233 was from and out of the amount advanced by them to the society, the land so purchased should be held to exclusively belong to those members. Such a claim of individual members cannot be accepted. In fact, such a claim would run counter to the cooperative principles, which is the object of the society when it came to be formed.36. Once the land in Survey No.233 in an extent of 1 acre and 14 guntas in Thokatta Village was purchased by the society, the property vests in the society. Therefore, it is for the society to consider how to deal with the said land in accordance with the cooperative principles and the objects with which the society was formed as mentioned in the Bye-Laws. It is not for the individual members to claim in what manner the land should be dealt with for the purpose of distribution amongst its members. At the risk of repetition, it will have to be stated that the members, who contributed their funds to the society, have no exclusive right to claim any share in the property on the ground that they made the investments for the purchase of the land. The said claim of the members both founder members and those who came to be subsequently admitted in the society, therefore, stands rejected.37. Therefore, to put it in clear and unambiguous terms, all those investments made either by the founder members or by the subsequent members other than those relating to the share capital, can only be taken as their deposits forming part of the funds of the society. The society is, therefore, bound to account for such deposits made by the members from the relevant dates and whatever prevailing interest in the market should accrue to such deposits and depending upon the volition of the member, it is for the society to take a decision either for refund of the sum so deposited after a fixed period or for using the same to meet the cost of the land in the event of its ultimate distribution to its various members. 38. In this context, it will be appropriate to note the order of the learned Single Judge dated 14-12-2006, passed in W.P. No.701 of 2003, wherein the learned Judge held as under: “It is an admitted fact that the resolution was passed without there being an approved layout, as required under the byelaws. If that be so, there was no necessity for convening the Meeting and passing a resolution allotting certain plots in favour of the petitioners herein. In view of this, the question as to whether there was a valid committee or not for passing the resolution need not be gone into. Therefore, I am of the considered opinion that the appellate tribunal has not committed any error in passing the impugned orders warranting interference of this Court under Article 226 of the Constitution of India.The Writ Petition is devoid of merits and it is accordingly dismissed.However, this order will not preclude the general body, after the layout is sanctioned from considering the allotments of plots in favour of the members of the society by taking into consideration their seniority as per the bye–laws concerning allotment of plots.” (Underlining is ours) 39. We find that such a conclusion and direction made by the learned Single Judge in the said order in Writ Petition No.701 of 2003, is not only the only course but the appropriate course to be followed by the society. In our considered view, any other attempt to deal with the land already purchased by the society, will not only run counter to the cooperative principles but will only create further complications and result in utter chaos and confusion. Therefore, neither the founder members nor those who were subsequently inducted/admitted as members, can claim any preference or right of allotment in any particular manner, other than the manner in which the learned Judge has directed in the said order. | 1[ds]25. While the purchase of the land came to be made, as above, by the society and the process of providing housing facility was being examined and was pending till the year 1996, the issue relating to the admission of 37 persons as members of the society cropped up. Therefore, before arriving at any definite conclusion as to how the housing facility in respect of the land already purchased, namely, 1 acre and 14 guntas in Thokatta Village is to be dealt with, we will have to steer clear of the membership of the society, in particular about the claim of the 37 persons as having become members of the society, who also claim their right to have a share in the land already purchased by the society for distribution in the form of housing accommodation.26. Insofar as the said claim of the 37 members is concerned, the first document is the letter dated 25-9-1996 of the Deputy Registrar of Cooperative Society, addressed to the society by which the society was requested to admit them as members and intimate the same to the Deputy Registrar. Pursuant to the said letter, the minutes of the Executive Committee Meeting of the Society dated 3-10-1996, disclose that as per the agenda dated 18-9-1996, the matter relating to admission of 37 applicants was thoroughly discussed and unanimously decided to admit them as members. The minutes of the said Meeting, however, stated that their claim for a share in the land already purchased, cannot be considered as such a claim would be considered in a different venture. Confirming the admission of those 37 members, a communication was also sent to the Deputy Registrar by the society on 4-10-1996. That apart, there was a General Body Meeting held on 4-4-1997, which discloses that the admission of the 37 members to the society was also ratified by the General Body, though their claim in respect to the land purchased in the Thokatta Village was not acceded to in the General Body.27. From the above proceedings, it must be stated that the admission of the 37 members to the society was a concluded issue as on the date of the General Body, namely, 4-4-1997. However, the offices of the Cooperative Department took a sudden u-turn in the year 1998, when the Deputy Registrar issued a communication to the society on 1-12-1998, stating that the instructions issued by it in its letter dated 25-9-1996 was to be treated as withdrawn based on the proceedings of the Registrar of Cooperative Societies dated 17-4-1997. It will have to be stated that the said stand of the Deputy Registrar Cooperative Societies is not permissible in law and we do not find any support for such a stand either based on any Statutory Provision or any other rule or regulation. That apart, when based on the said communication dated 1-12-1998, the society wanted to withdraw the membership of the 37 persons, the issue went before the High Court by way of Writ Petition No.3720 of 1999, which was rejected by the learned Singh Judge in Writ Appeal No.1056 of 1999, the proceedings of the society dated 20-7-1999, withdrawing the membership, was set aside with the observation that it is open to the society to decide one way or the other with respect to the membership of one of the 37 members. The said conclusion was followed in respect of 25 other persons among the 37 members when their Writ Petition in W.P. No.18294 of 1999 was decided by order dated 1-9-1999, wherein the conclusion in Writ Appeal No.1056 of 1999 was followed.28. Though, the society wanted to initiate proceedings by issuing show cause notice on 6-10-1999, the fact remains that the said show cause notice was not pursued. On the other hand, in Writ Petition No.11268 of 2011 by order dated 18-11-2000, the High Court virtually declared that the 37 members, including the writ petitioners, had become valid members as on the date of the order as society not having divested of such membership in any formal proceedings in due conformity with the law. It was stated in the said order that any alleged deficiencies in the electoral roll cannot be a relevant ground to interdict the democratic process of elections to a cooperative society and the contention that the 37 new members cannot form part of the Electoral College was rejected. It must be pointed out that the said order of the learned Single Judge dated 18-11-2000 passed in W.P. No.11268 of 2011 was not varied at any point of time in any subsequent proceedings, either in an appeal or by any other valid order passed by the society. In fact, subsequently, while dealing with an issue relating to the prosecution of the members for alleged misappropriation when the State Government passed an order on 29-3-2004, it was innocuously stated that the disputed membership of 37 persons cannot be accepted, as their membership was not valid. The said order was challenged in a separate writ petition in W.P. No.7794 of 2004 and the said part of the order was also set aside by the High Court in the order dated 15-12-2006. Here again it must be stated that the said order in W.P. No.7794 of 2004 has become final and conclusive as the same was not challenged in the manner known to law. The said writ petition was filed by the society itself. The net result was that by virtue of the orders passed in W.P. No.11268 of 2000 dated 18-11-2000 and the order dated 15-12-2006 in W.P. No.7794 of 2004, the validity of membership of these 37 persons was beyond the pale of controversy.29. One other factor which has also to be noted is that belatedly, an attempt was made by the department in a proceeding dated 2-4-2004, to deal with the validity of membership of these 37 person by directing one of its officers, namely, the Sub-Divisional Cooperative Officer to call for a General Body Meeting of the society and decide the issue relating to the membership. Pursuant to the said proceeding, though a General Body Meeting was called for by the said officer and a date was also fixed as 22-5-2005, the said Meeting was not convened, since the proceedings of the Deputy Registrar dated 04.06.2005 made it clear the that the Sub-Divisional Cooperative Officer who convened the General Body Meeting, explained to the members on 22.05.2005 and made it clear that there would not be any discussion on the agenda, namely, about the validity of the admission of the 37 members and that there was no General Body Meeting as proposed to be convened. Therefore, as pointed out by us earlier, the admission of the 37 members based on the Meeting dated 03.10.1996, can no longer be in controversy as it was a concluded issue.30. Even while holding so, it must be noted that if at all the membership of the 37 persons were to be cancelled, the same could have been done by applying any of the relevant provisions in the Bye-Law, namely, on the ground of eligibility as provided under By-Law No.5 or by way of disqualification as provided under Bye-Law No.8 or by withdrawal of share capital as provided under Bye-Law No.12 or by way of an expulsion as stipulated in Bye-Law No.16. As far as the eligibility criteria is concerned, it was not pointed out before us that any of the 37 members lacked such eligibility as stipulated in Bye-Law No.5. It was also not pointed out before us in the form of any acceptable material that any of the 37 members suffered disqualification as provided under Bye-Law No.8. As far as application of Bye-Law No.12 is concerned, it must be stated that out of 37 members, 10 have accepted their refund of share capital and as on date, only 27 out of the 37 remain, who returned the cheques issued by the society during the year 1999, along with proceeding dated 20-7-1999.Keeping the above factors in mind, relating to the 37 members, now 27, the only other question which remains to be considered is as to the entitlement of the members of the society for a housing accommodation in the land admeasuring 1 acre 14 guntas in Survey No. 233 of Thokatta Village. When we consider the said issue, the claim of the so-called 11 founder members is that the entire value of the land was borne by them and, therefore, they are exclusively entitled to the distribution of the land amongst themselves. Such a claim was distinctly mentioned in the General Body Meeting of the society held on 4-4-1997. In fact, there was a serious deliberation and discussion in the said Meeting relating to the said issue and the minutes of the General Body Meeting states aswas explained that since new members did not join in the venture, the then existing 11 members, who have decided to continue in the venture, contributed all the extra amounts to refund the amounts to the members, who resigned from the land advance on their own accord. Thus the following 11 (eleven)1. V. Sivarama Krishna2. M. Balakrishnan3. K. Sivarama Raju4. P.S. Sastry5. K. Bhaktavatsalam6. N. Suryaprakash Rao7. T.N. Shankar8. T.S. Banerjee9. C. Viswam10. U. Talapathi11. K.G.K. Murthyare the only members who have right to the existing land venture in S. No.233 of Thokatta village and it is not possible to admit any further members after lapse of so many years in the existing venture. However, the chair expressed that interested members can explore the possibility of any new venture and all assistance will be given for the same.Though, such a stand was expressed by the Chair in the General Body Meeting, no definite conclusion to that effect was arrived at in the General Body Meeting. Besides such a claim made by the so called 11 founder members, it must be stated that such a claim will have to be tested on the anvil of the provisions contained in the Bye-Laws. For this purpose, when we examine the provisions in the Bye-Laws, the object clause in Bye-Law No.2 states that the object of the society is to carry on for the benefit of its members, the trade of building and of buying, selling, hiring, letting and developing land in accordance with the cooperative principles, apart from giving loans to members for construction of new dwelling houses. Therefore, the object is very explicit to the effect that it is for the benefit of the members and it should be in accordance with the cooperative principles. Bye-Law No.4 prescribes the total share capital to be made up to 5000 shares of Rs.100 each, the other source of fund can be as prescribed in Bye-Law No.17. Bye-Law No.17 under the headstates that the society will ordinarily obtain funds from 10 sources, namely, share capital from the members, loan from the Government, deposits from members, entrance and other fees, AP Cooperative HousingFederation Ltd., Scheduled and Nationalised Banks, BDA, LIC, Hadco and Voltas Ltd. There is no information as to whether any fund was gathered from any other source, except the share capital from the members and the funds invested by such of those members who initially formed the society and by those members who subsequently joined the society. In fact, pursuant to a direction of this Court in the order dated 4-9-2012, to one of the queries, which was directed to be answered by the Registrar, it has come to light that the contribution for the sale deed was Rs.48,000/- though as per cash book the consideration paid was shown as Rs.2,60,000/-. That apart, a list was annexed along with the answer to another query by way of Annexure 2, which disclose that the contribution in a sum of Rs.3,06,795/- came to be made by 34 members of the society, on different dates between 24.08.1982 and 30-4-1982.34. To yet another query made by this Court by way of Annexure 4, it is disclosed that contributions were also made after 30-4-1982, i.e. between 11-10-1982 and 30-11-1989, in different sums ranging from Rs.5000/- to Rs.39,000/-, though many of the members got back their investments by way of refund, while some of the members continue to retain such investments. To yet another query by way of Annexure 6, the Registrar has disclosed that as many as 34 members who sought such membership after 25-9-1996, have invested sums ranging from Rs.1500/- to Rs.2,40,000/-, in all a sum of Rs.17,48,569/-. For the said sum the break-up of the expenses has also been disclosed in the annexure. De hors the question whether such investments made and the expenses incurred is to be scrutinized and the veracity of such expenses incurred by the society are to be accepted or not the fact emerges that the founder members, as well as those who subsequently came to be admitted as members, have invested large sums by way of deposits into the society. The question for consideration, therefore, is how to treat those sums, once it was brought into the funds of the society.35. In this context, Bye-Law No.17 assumes significance. It will have to be stated that whatever maybe the intention of the members of the society, while making various deposits into the accounts of the society, since, the funds of the society can be regulated only as per the Bye-Laws of the society whatever sum invested by the members of the society, can be either towards the share capital, which cannot exceed 5000 shares of Rs.100 each or by way of deposits by the members as provided under Bye-Law No.17. Since, the membership has been confirmed based on the shares acquired by each of the individuals, whatever other sum brought into the accounts of the society, can only be taken as the deposits of the members. Therefore, the amount deposited by the individual members of the society can be utilized only to meet the cost of the land originally purchased nearly 1 acre and 14 guntas in Survey No.233 of Thokatta Village or for any future investment to be made in any other lands to be purchased or to be used for advancing any loan for the purpose of construction of building by the members. In other words, the individual members cannot seek to claim that because the purchase of land in Survey No.233 was from and out of the amount advanced by them to the society, the land so purchased should be held to exclusively belong to those members. Such a claim of individual members cannot be accepted. In fact, such a claim would run counter to the cooperative principles, which is the object of the society when it came to be formed.36. Once the land in Survey No.233 in an extent of 1 acre and 14 guntas in Thokatta Village was purchased by the society, the property vests in the society. Therefore, it is for the society to consider how to deal with the said land in accordance with the cooperative principles and the objects with which the society was formed as mentioned in the Bye-Laws. It is not for the individual members to claim in what manner the land should be dealt with for the purpose of distribution amongst its members. At the risk of repetition, it will have to be stated that the members, who contributed their funds to the society, have no exclusive right to claim any share in the property on the ground that they made the investments for the purchase of the land. The said claim of the members both founder members and those who came to be subsequently admitted in the society, therefore, stands rejected.37. Therefore, to put it in clear and unambiguous terms, all those investments made either by the founder members or by the subsequent members other than those relating to the share capital, can only be taken as their deposits forming part of the funds of the society. The society is, therefore, bound to account for such deposits made by the members from the relevant dates and whatever prevailing interest in the market should accrue to such deposits and depending upon the volition of the member, it is for the society to take a decision either for refund of the sum so deposited after a fixed period or for using the same to meet the cost of the land in the event of its ultimate distribution to its various members.We find that such a conclusion and direction made by the learned Single Judge in the said order in Writ Petition No.701 of 2003, is not only the only course but the appropriate course to be followed by the society. In our considered view, any other attempt to deal with the land already purchased by the society, will not only run counter to the cooperative principles but will only create further complications and result in utter chaos and confusion. Therefore, neither the founder members nor those who were subsequently inducted/admitted as members, can claim any preference or right of allotment in any particular manner, other than the manner in which the learned Judge has directed in the said | 1 | 8,051 | 3,106 | ### Instruction:
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the Registrar has disclosed that as many as 34 members who sought such membership after 25-9-1996, have invested sums ranging from Rs.1500/- to Rs.2,40,000/-, in all a sum of Rs.17,48,569/-. For the said sum the break-up of the expenses has also been disclosed in the annexure. De hors the question whether such investments made and the expenses incurred is to be scrutinized and the veracity of such expenses incurred by the society are to be accepted or not the fact emerges that the founder members, as well as those who subsequently came to be admitted as members, have invested large sums by way of deposits into the society. The question for consideration, therefore, is how to treat those sums, once it was brought into the funds of the society.35. In this context, Bye-Law No.17 assumes significance. It will have to be stated that whatever maybe the intention of the members of the society, while making various deposits into the accounts of the society, since, the funds of the society can be regulated only as per the Bye-Laws of the society whatever sum invested by the members of the society, can be either towards the share capital, which cannot exceed 5000 shares of Rs.100 each or by way of deposits by the members as provided under Bye-Law No.17. Since, the membership has been confirmed based on the shares acquired by each of the individuals, whatever other sum brought into the accounts of the society, can only be taken as the deposits of the members. Therefore, the amount deposited by the individual members of the society can be utilized only to meet the cost of the land originally purchased nearly 1 acre and 14 guntas in Survey No.233 of Thokatta Village or for any future investment to be made in any other lands to be purchased or to be used for advancing any loan for the purpose of construction of building by the members. In other words, the individual members cannot seek to claim that because the purchase of land in Survey No.233 was from and out of the amount advanced by them to the society, the land so purchased should be held to exclusively belong to those members. Such a claim of individual members cannot be accepted. In fact, such a claim would run counter to the cooperative principles, which is the object of the society when it came to be formed.36. Once the land in Survey No.233 in an extent of 1 acre and 14 guntas in Thokatta Village was purchased by the society, the property vests in the society. Therefore, it is for the society to consider how to deal with the said land in accordance with the cooperative principles and the objects with which the society was formed as mentioned in the Bye-Laws. It is not for the individual members to claim in what manner the land should be dealt with for the purpose of distribution amongst its members. At the risk of repetition, it will have to be stated that the members, who contributed their funds to the society, have no exclusive right to claim any share in the property on the ground that they made the investments for the purchase of the land. The said claim of the members both founder members and those who came to be subsequently admitted in the society, therefore, stands rejected.37. Therefore, to put it in clear and unambiguous terms, all those investments made either by the founder members or by the subsequent members other than those relating to the share capital, can only be taken as their deposits forming part of the funds of the society. The society is, therefore, bound to account for such deposits made by the members from the relevant dates and whatever prevailing interest in the market should accrue to such deposits and depending upon the volition of the member, it is for the society to take a decision either for refund of the sum so deposited after a fixed period or for using the same to meet the cost of the land in the event of its ultimate distribution to its various members. 38. In this context, it will be appropriate to note the order of the learned Single Judge dated 14-12-2006, passed in W.P. No.701 of 2003, wherein the learned Judge held as under: “It is an admitted fact that the resolution was passed without there being an approved layout, as required under the byelaws. If that be so, there was no necessity for convening the Meeting and passing a resolution allotting certain plots in favour of the petitioners herein. In view of this, the question as to whether there was a valid committee or not for passing the resolution need not be gone into. Therefore, I am of the considered opinion that the appellate tribunal has not committed any error in passing the impugned orders warranting interference of this Court under Article 226 of the Constitution of India.The Writ Petition is devoid of merits and it is accordingly dismissed.However, this order will not preclude the general body, after the layout is sanctioned from considering the allotments of plots in favour of the members of the society by taking into consideration their seniority as per the bye–laws concerning allotment of plots.” (Underlining is ours) 39. We find that such a conclusion and direction made by the learned Single Judge in the said order in Writ Petition No.701 of 2003, is not only the only course but the appropriate course to be followed by the society. In our considered view, any other attempt to deal with the land already purchased by the society, will not only run counter to the cooperative principles but will only create further complications and result in utter chaos and confusion. Therefore, neither the founder members nor those who were subsequently inducted/admitted as members, can claim any preference or right of allotment in any particular manner, other than the manner in which the learned Judge has directed in the said order.
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share capital from the members and the funds invested by such of those members who initially formed the society and by those members who subsequently joined the society. In fact, pursuant to a direction of this Court in the order dated 4-9-2012, to one of the queries, which was directed to be answered by the Registrar, it has come to light that the contribution for the sale deed was Rs.48,000/- though as per cash book the consideration paid was shown as Rs.2,60,000/-. That apart, a list was annexed along with the answer to another query by way of Annexure 2, which disclose that the contribution in a sum of Rs.3,06,795/- came to be made by 34 members of the society, on different dates between 24.08.1982 and 30-4-1982.34. To yet another query made by this Court by way of Annexure 4, it is disclosed that contributions were also made after 30-4-1982, i.e. between 11-10-1982 and 30-11-1989, in different sums ranging from Rs.5000/- to Rs.39,000/-, though many of the members got back their investments by way of refund, while some of the members continue to retain such investments. To yet another query by way of Annexure 6, the Registrar has disclosed that as many as 34 members who sought such membership after 25-9-1996, have invested sums ranging from Rs.1500/- to Rs.2,40,000/-, in all a sum of Rs.17,48,569/-. For the said sum the break-up of the expenses has also been disclosed in the annexure. De hors the question whether such investments made and the expenses incurred is to be scrutinized and the veracity of such expenses incurred by the society are to be accepted or not the fact emerges that the founder members, as well as those who subsequently came to be admitted as members, have invested large sums by way of deposits into the society. The question for consideration, therefore, is how to treat those sums, once it was brought into the funds of the society.35. In this context, Bye-Law No.17 assumes significance. It will have to be stated that whatever maybe the intention of the members of the society, while making various deposits into the accounts of the society, since, the funds of the society can be regulated only as per the Bye-Laws of the society whatever sum invested by the members of the society, can be either towards the share capital, which cannot exceed 5000 shares of Rs.100 each or by way of deposits by the members as provided under Bye-Law No.17. Since, the membership has been confirmed based on the shares acquired by each of the individuals, whatever other sum brought into the accounts of the society, can only be taken as the deposits of the members. Therefore, the amount deposited by the individual members of the society can be utilized only to meet the cost of the land originally purchased nearly 1 acre and 14 guntas in Survey No.233 of Thokatta Village or for any future investment to be made in any other lands to be purchased or to be used for advancing any loan for the purpose of construction of building by the members. In other words, the individual members cannot seek to claim that because the purchase of land in Survey No.233 was from and out of the amount advanced by them to the society, the land so purchased should be held to exclusively belong to those members. Such a claim of individual members cannot be accepted. In fact, such a claim would run counter to the cooperative principles, which is the object of the society when it came to be formed.36. Once the land in Survey No.233 in an extent of 1 acre and 14 guntas in Thokatta Village was purchased by the society, the property vests in the society. Therefore, it is for the society to consider how to deal with the said land in accordance with the cooperative principles and the objects with which the society was formed as mentioned in the Bye-Laws. It is not for the individual members to claim in what manner the land should be dealt with for the purpose of distribution amongst its members. At the risk of repetition, it will have to be stated that the members, who contributed their funds to the society, have no exclusive right to claim any share in the property on the ground that they made the investments for the purchase of the land. The said claim of the members both founder members and those who came to be subsequently admitted in the society, therefore, stands rejected.37. Therefore, to put it in clear and unambiguous terms, all those investments made either by the founder members or by the subsequent members other than those relating to the share capital, can only be taken as their deposits forming part of the funds of the society. The society is, therefore, bound to account for such deposits made by the members from the relevant dates and whatever prevailing interest in the market should accrue to such deposits and depending upon the volition of the member, it is for the society to take a decision either for refund of the sum so deposited after a fixed period or for using the same to meet the cost of the land in the event of its ultimate distribution to its various members.We find that such a conclusion and direction made by the learned Single Judge in the said order in Writ Petition No.701 of 2003, is not only the only course but the appropriate course to be followed by the society. In our considered view, any other attempt to deal with the land already purchased by the society, will not only run counter to the cooperative principles but will only create further complications and result in utter chaos and confusion. Therefore, neither the founder members nor those who were subsequently inducted/admitted as members, can claim any preference or right of allotment in any particular manner, other than the manner in which the learned Judge has directed in the said
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A.Jayaram & Another Etc Vs. State of Andhra Pradesh Byc.B.I | that on the relevant dates no delivery of fertiliser at the destination had taken place. Unless by unimpeachable and convincing evidence, the factum of non delivery of such fertilisers with reference to actual stock position on the relevant date can be clearly established, in our view, it becomes very difficult to proceed on the footing that the concerned government officials issued false certificate about receipt of the goods on the dates in question. There is force in the contention of the learned counsel for the appellants that it was not unlikely that some fertilisers had in fact been delivered to the government officials at the destination. On the basis of such delivery, the certificates had been issued by them. It 0is not the case of the prosecution that the quality of the fertilisers was required to be examined by the officers at the receiving end and they had proper infrastructure to make such exercise. It has been rightly contended that it was not established that the fertilisers was not available anywhere in the locality so that it was not possible to replace the quantity of fertiliser after selling the original consignment. Simply on the basis of evidence given by lorry owners that their lorries did not carry the fertiliser or such lorries had gone to different places and some fertilisers were sold by the dealers to other persons, non delivery of fertiliser a t the destination by other means can not be fully ruled out. The circumstances are undoubtedly very intriguing and raise considerable doubt but in the absence of unimpeachable direct evidence about the actual stock position at the receiving end, the indirect circumstantial evidences, in our view do not establish the prosecution case beyond all reasonable doubts. It is true that there is no absolute standard of proof in a criminal trial and the court should not nurture fanciful doubts by exaggerated devotion to the rule of benefit of doubt but in a case of circumstantial evidence all the links in the chain of events from which irresistible conclusion about the guilt of the accused for the offence alleged can be drawn, must be established beyond the pale of reasonable doubt. The court has to be watchful and avoid the danger of allowing suspicion to take the place of legal proof. Conviction can not be based on circumstances indicating that the prosecution case is quite likely to be true. For basing the conviction in a case governed by circumstantial evidence, the facts established must rule out any likelihood of innocence of the accused. The exact stock position on the alleged date of delivery of fertiliser which would have repelled any other possibility is unfortunately not forthcoming. It does not appear that any attempt to establish the actual stock position of fertiliser in the godown in question on the relevant date or soon thereafter with reference to register of stock or any other contemporaneous document h as been made. It is only through negative and indirect evidence the prosecution is attempting to establish that the fertiliser had not been delivered.Such evidence would have been very convincing to corroporate the direct evidence about the stock position in the event the correctness of such stock position was challenged. So long the possibility of some other conclusion cannot be fully ruled out, the prosecution case remains in the realm of probability. 19. In the facts of the case, we are of the view that the government officials who are appellants in some of these appeals cannot be held to be guilty with all certainty and they are entitled to get the benefit of doubt. The appeals, preferred by the government officials therefore, should be allowed by setting aside the conviction of sentence passed against them by the High Court. It appears to us that although the High Court reversed the orders of acquittal in convicting the government officials, the High Court perhaps felt that some convincing evidences we re lacking and it is not unlikely that for the said reasons, although the High Court convicted the government officials for serious offences charged against them only a token sentence of fine of Rs.100/- and detention till the rising of the Court had been passed which sentence normally should not have been passed. 20. So far as the appeals preferred by the dealers of the fertilisers are concerned, it appears to us that direct and positive evidences have been led by the prosecution to show that the fertilisers were not transported by the dealers in the manner alleged by them. If the dealers had transported the fertilisers by a different route or by any other transport and if they had sold different fertilisers, such facts were within their special knowledge and in the facts of the case, the dealers ought to have satisfied the court that the fertilisers had in fact been transported by other transports and in a manner different from what was mentioned in the bills. The evidence adduced by the prosecution by examining lorry owners, clerks of such owners, officers of the check posts on the usual routes convincingly point out that the fertiliser was not transported in the way it appeared in the bills since certified by the government officials at the destination. If some fertilisers of equal quantity had been handed over at the destination, it was not unlikely that the government officials having taken delivery of such fertilisers without appreciating the fraud and with reference to the record of loading of the fertiliser at port, would be justified in issuing certificate about transportation at reasonable rate by the shortest route. As the possiblity of delivering fertiliser of similar quantity which may not be qualitatively same, by procuring them locally, when non availability of fertiliser in the region had not been established by the prosecution, cannot be fully ruled out, the government officers, in our view, were entitled to benefit of doubt. But in the facts of the case, such benefit will not be available to t he dealers. | 0[ds]In cases depending largely upon circumstantial evidene there is always a danger that conjecture or suspicion may take the place of legal proof. The Court must satisfy itself that various circumstanced in the chain of evidence should be established clearly and that th e completed chain must be such as to rule out a reasonable likelihood of the innocence of the accused. When the main link goes, the chain of circumstances gets snapped and other circumstances cannot in any manner establish the guilt of the accused beyond all reasonable doubts. It is at this juncture the court has to be watchful and avoid the danger of allowing the suspicion to take the place of legal proof for sometimes unconsci ously it may happen to be a short step between moral certainty and legal proof. At times it can be a case of `may be true. But there is a long mental distance between `may be true and `must be true and the same divides conjectures from sure conclusions.It has been contended that there is no convincing and unimpeachable evidence which unerringly points out to the guilt of the accused and in the facts of the case, no conclusion other than complicity of the accused for the offence charged, is possible. Hence, conviction of the appellant on proobability, surmise or conjecture was notgiving our anxious consideration to the facts and circumstances of the case and considering the judgments by both the courts and evidences adduced in the case through which we have been taken by the learned counsel for the parties, it appears to us that a large scale fraud had been committed in the matter of transportation of fertilisers from the ports of arrival to various destinations in the State of Andhra Pradesh. Such fertilisers had been brought at a point of time when the State was in dire need of good quality of fertilisers for cultivation. It is the case of the prosecution that large scale fraud had been committed by a large number of government officials in conspiracy with the dealers in fertilisers who were entrusted to take the fertilisers from the port to various government godowns. The prosecution case is because there was a conspiracy involving reasonable government officials, the fraud could not be detected earlier. Thereafter, when the State Police was entrusted with the enquiry, for some inexplicable reasons, the enquiry appeared to be tardy. In the meantime, uproar was made in the State Assembly and the newspapers published the news of large scale scandal relating to transportation of fertilisers. The embarrassed State Government thereafter entrusted the C.B.I. to make enquiries. The C.B.I. made enquiries and charge sheets were filed. There is no manner of doubt that by that time it was quite late and the C.B.I. was handicapped in causing more effective enquiry. Despite such fact, it appears to us that the C.B.I. has done excellent job by examining the lorry owners, the clerks of the lorry owners, the officials of different check posts and also the purchasers of fertilisers at different places for the purpose of showing that the fertilisers lifted from the port and stated to have been transported at different destinations had in fact not been transported in the manner alleged but on the basis of false entries made by the government officials and also by issuing false certificate of such transportation payments had been made.Unfortunately, no evidence has been led whether fertilisers in fact had not been delivered on the relevant date at the destination by proving the stock register at the relevant time. It is really unfortunate that in a case of such magnitude senior officials of the concerned department were not examined. No witness from the locality of the godown was also examined to show that on the relevant dates no delivery of fertiliser at the destination had taken place. Unless by unimpeachable and convincing evidence, the factum of non delivery of such fertilisers with reference to actual stock position on the relevant date can be clearly established, in our view, it becomes very difficult to proceed on the footing that the concerned government officials issued false certificate about receipt of the goods on the dates in question. There is force in the contention of the learned counsel for the appellants that it was not unlikely that some fertilisers had in fact been delivered to the government officials at the destination. On the basis of such delivery, the certificates had been issued by them. It 0is not the case of the prosecution that the quality of the fertilisers was required to be examined by the officers at the receiving end and they had proper infrastructure to make such exercise. It has been rightly contended that it was not established that the fertilisers was not available anywhere in the locality so that it was not possible to replace the quantity of fertiliser after selling the original consignment. Simply on the basis of evidence given by lorry owners that their lorries did not carry the fertiliser or such lorries had gone to different places and some fertilisers were sold by the dealers to other persons, non delivery of fertiliser a t the destination by other means can not be fully ruled out. The circumstances are undoubtedly very intriguing and raise considerable doubt but in the absence of unimpeachable direct evidence about the actual stock position at the receiving end, the indirect circumstantial evidences, in our view do not establish the prosecution case beyond all reasonable doubts. It is true that there is no absolute standard of proof in a criminal trial and the court should not nurture fanciful doubts by exaggerated devotion to the rule of benefit of doubt but in a case of circumstantial evidence all the links in the chain of events from which irresistible conclusion about the guilt of the accused for the offence alleged can be drawn, must be established beyond the pale of reasonable doubt. The court has to be watchful and avoid the danger of allowing suspicion to take the place of legal proof. Conviction can not be based on circumstances indicating that the prosecution case is quite likely to be true. For basing the conviction in a case governed by circumstantial evidence, the facts established must rule out any likelihood of innocence of the accused. The exact stock position on the alleged date of delivery of fertiliser which would have repelled any other possibility is unfortunately not forthcoming. It does not appear that any attempt to establish the actual stock position of fertiliser in the godown in question on the relevant date or soon thereafter with reference to register of stock or any other contemporaneous document h as been made. It is only through negative and indirect evidence the prosecution is attempting to establish that the fertiliser had not been delivered.Such evidence would have been very convincing to corroporate the direct evidence about the stock position in the event the correctness of such stock position was challenged. So long the possibility of some other conclusion cannot be fully ruled out, the prosecution case remains in the realm ofthe facts of the case, we are of the view that the government officials who are appellants in some of these appeals cannot be held to be guilty with all certainty and they are entitled to get the benefit of doubt. The appeals, preferred by the government officials therefore, should be allowed by setting aside the conviction of sentence passed against them by the High Court. It appears to us that although the High Court reversed the orders of acquittal in convicting the government officials, the High Court perhaps felt that some convincing evidences we re lacking and it is not unlikely that for the said reasons, although the High Court convicted the government officials for serious offences charged against them only a token sentence of fine of Rs.100/- and detention till the rising of the Court had been passed which sentence normally should not have beenfar as the appeals preferred by the dealers of the fertilisers are concerned, it appears to us that direct and positive evidences have been led by the prosecution to show that the fertilisers were not transported by the dealers in the manner alleged by them. If the dealers had transported the fertilisers by a different route or by any other transport and if they had sold different fertilisers, such facts were within their special knowledge and in the facts of the case, the dealers ought to have satisfied the court that the fertilisers had in fact been transported by other transports and in a manner different from what was mentioned in the bills. The evidence adduced by the prosecution by examining lorry owners, clerks of such owners, officers of the check posts on the usual routes convincingly point out that the fertiliser was not transported in the way it appeared in the bills since certified by the government officials at the destination. If some fertilisers of equal quantity had been handed over at the destination, it was not unlikely that the government officials having taken delivery of such fertilisers without appreciating the fraud and with reference to the record of loading of the fertiliser at port, would be justified in issuing certificate about transportation at reasonable rate by the shortest route. As the possiblity of delivering fertiliser of similar quantity which may not be qualitatively same, by procuring them locally, when non availability of fertiliser in the region had not been established by the prosecution, cannot be fully ruled out, the government officers, in our view, were entitled to benefit of doubt. But in the facts of the case, such benefit will not be available to t he dealers. | 0 | 9,468 | 1,717 | ### 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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that on the relevant dates no delivery of fertiliser at the destination had taken place. Unless by unimpeachable and convincing evidence, the factum of non delivery of such fertilisers with reference to actual stock position on the relevant date can be clearly established, in our view, it becomes very difficult to proceed on the footing that the concerned government officials issued false certificate about receipt of the goods on the dates in question. There is force in the contention of the learned counsel for the appellants that it was not unlikely that some fertilisers had in fact been delivered to the government officials at the destination. On the basis of such delivery, the certificates had been issued by them. It 0is not the case of the prosecution that the quality of the fertilisers was required to be examined by the officers at the receiving end and they had proper infrastructure to make such exercise. It has been rightly contended that it was not established that the fertilisers was not available anywhere in the locality so that it was not possible to replace the quantity of fertiliser after selling the original consignment. Simply on the basis of evidence given by lorry owners that their lorries did not carry the fertiliser or such lorries had gone to different places and some fertilisers were sold by the dealers to other persons, non delivery of fertiliser a t the destination by other means can not be fully ruled out. The circumstances are undoubtedly very intriguing and raise considerable doubt but in the absence of unimpeachable direct evidence about the actual stock position at the receiving end, the indirect circumstantial evidences, in our view do not establish the prosecution case beyond all reasonable doubts. It is true that there is no absolute standard of proof in a criminal trial and the court should not nurture fanciful doubts by exaggerated devotion to the rule of benefit of doubt but in a case of circumstantial evidence all the links in the chain of events from which irresistible conclusion about the guilt of the accused for the offence alleged can be drawn, must be established beyond the pale of reasonable doubt. The court has to be watchful and avoid the danger of allowing suspicion to take the place of legal proof. Conviction can not be based on circumstances indicating that the prosecution case is quite likely to be true. For basing the conviction in a case governed by circumstantial evidence, the facts established must rule out any likelihood of innocence of the accused. The exact stock position on the alleged date of delivery of fertiliser which would have repelled any other possibility is unfortunately not forthcoming. It does not appear that any attempt to establish the actual stock position of fertiliser in the godown in question on the relevant date or soon thereafter with reference to register of stock or any other contemporaneous document h as been made. It is only through negative and indirect evidence the prosecution is attempting to establish that the fertiliser had not been delivered.Such evidence would have been very convincing to corroporate the direct evidence about the stock position in the event the correctness of such stock position was challenged. So long the possibility of some other conclusion cannot be fully ruled out, the prosecution case remains in the realm of probability. 19. In the facts of the case, we are of the view that the government officials who are appellants in some of these appeals cannot be held to be guilty with all certainty and they are entitled to get the benefit of doubt. The appeals, preferred by the government officials therefore, should be allowed by setting aside the conviction of sentence passed against them by the High Court. It appears to us that although the High Court reversed the orders of acquittal in convicting the government officials, the High Court perhaps felt that some convincing evidences we re lacking and it is not unlikely that for the said reasons, although the High Court convicted the government officials for serious offences charged against them only a token sentence of fine of Rs.100/- and detention till the rising of the Court had been passed which sentence normally should not have been passed. 20. So far as the appeals preferred by the dealers of the fertilisers are concerned, it appears to us that direct and positive evidences have been led by the prosecution to show that the fertilisers were not transported by the dealers in the manner alleged by them. If the dealers had transported the fertilisers by a different route or by any other transport and if they had sold different fertilisers, such facts were within their special knowledge and in the facts of the case, the dealers ought to have satisfied the court that the fertilisers had in fact been transported by other transports and in a manner different from what was mentioned in the bills. The evidence adduced by the prosecution by examining lorry owners, clerks of such owners, officers of the check posts on the usual routes convincingly point out that the fertiliser was not transported in the way it appeared in the bills since certified by the government officials at the destination. If some fertilisers of equal quantity had been handed over at the destination, it was not unlikely that the government officials having taken delivery of such fertilisers without appreciating the fraud and with reference to the record of loading of the fertiliser at port, would be justified in issuing certificate about transportation at reasonable rate by the shortest route. As the possiblity of delivering fertiliser of similar quantity which may not be qualitatively same, by procuring them locally, when non availability of fertiliser in the region had not been established by the prosecution, cannot be fully ruled out, the government officers, in our view, were entitled to benefit of doubt. But in the facts of the case, such benefit will not be available to t he dealers.
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of the godown was also examined to show that on the relevant dates no delivery of fertiliser at the destination had taken place. Unless by unimpeachable and convincing evidence, the factum of non delivery of such fertilisers with reference to actual stock position on the relevant date can be clearly established, in our view, it becomes very difficult to proceed on the footing that the concerned government officials issued false certificate about receipt of the goods on the dates in question. There is force in the contention of the learned counsel for the appellants that it was not unlikely that some fertilisers had in fact been delivered to the government officials at the destination. On the basis of such delivery, the certificates had been issued by them. It 0is not the case of the prosecution that the quality of the fertilisers was required to be examined by the officers at the receiving end and they had proper infrastructure to make such exercise. It has been rightly contended that it was not established that the fertilisers was not available anywhere in the locality so that it was not possible to replace the quantity of fertiliser after selling the original consignment. Simply on the basis of evidence given by lorry owners that their lorries did not carry the fertiliser or such lorries had gone to different places and some fertilisers were sold by the dealers to other persons, non delivery of fertiliser a t the destination by other means can not be fully ruled out. The circumstances are undoubtedly very intriguing and raise considerable doubt but in the absence of unimpeachable direct evidence about the actual stock position at the receiving end, the indirect circumstantial evidences, in our view do not establish the prosecution case beyond all reasonable doubts. It is true that there is no absolute standard of proof in a criminal trial and the court should not nurture fanciful doubts by exaggerated devotion to the rule of benefit of doubt but in a case of circumstantial evidence all the links in the chain of events from which irresistible conclusion about the guilt of the accused for the offence alleged can be drawn, must be established beyond the pale of reasonable doubt. The court has to be watchful and avoid the danger of allowing suspicion to take the place of legal proof. Conviction can not be based on circumstances indicating that the prosecution case is quite likely to be true. For basing the conviction in a case governed by circumstantial evidence, the facts established must rule out any likelihood of innocence of the accused. The exact stock position on the alleged date of delivery of fertiliser which would have repelled any other possibility is unfortunately not forthcoming. It does not appear that any attempt to establish the actual stock position of fertiliser in the godown in question on the relevant date or soon thereafter with reference to register of stock or any other contemporaneous document h as been made. It is only through negative and indirect evidence the prosecution is attempting to establish that the fertiliser had not been delivered.Such evidence would have been very convincing to corroporate the direct evidence about the stock position in the event the correctness of such stock position was challenged. So long the possibility of some other conclusion cannot be fully ruled out, the prosecution case remains in the realm ofthe facts of the case, we are of the view that the government officials who are appellants in some of these appeals cannot be held to be guilty with all certainty and they are entitled to get the benefit of doubt. The appeals, preferred by the government officials therefore, should be allowed by setting aside the conviction of sentence passed against them by the High Court. It appears to us that although the High Court reversed the orders of acquittal in convicting the government officials, the High Court perhaps felt that some convincing evidences we re lacking and it is not unlikely that for the said reasons, although the High Court convicted the government officials for serious offences charged against them only a token sentence of fine of Rs.100/- and detention till the rising of the Court had been passed which sentence normally should not have beenfar as the appeals preferred by the dealers of the fertilisers are concerned, it appears to us that direct and positive evidences have been led by the prosecution to show that the fertilisers were not transported by the dealers in the manner alleged by them. If the dealers had transported the fertilisers by a different route or by any other transport and if they had sold different fertilisers, such facts were within their special knowledge and in the facts of the case, the dealers ought to have satisfied the court that the fertilisers had in fact been transported by other transports and in a manner different from what was mentioned in the bills. The evidence adduced by the prosecution by examining lorry owners, clerks of such owners, officers of the check posts on the usual routes convincingly point out that the fertiliser was not transported in the way it appeared in the bills since certified by the government officials at the destination. If some fertilisers of equal quantity had been handed over at the destination, it was not unlikely that the government officials having taken delivery of such fertilisers without appreciating the fraud and with reference to the record of loading of the fertiliser at port, would be justified in issuing certificate about transportation at reasonable rate by the shortest route. As the possiblity of delivering fertiliser of similar quantity which may not be qualitatively same, by procuring them locally, when non availability of fertiliser in the region had not been established by the prosecution, cannot be fully ruled out, the government officers, in our view, were entitled to benefit of doubt. But in the facts of the case, such benefit will not be available to t he dealers.
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K. L. Rathee Vs. Union Of India & Ors | "5(1) Any claim to pension or family pension shall be regulated by the provisions of these rules in force at the time when a Government servant retired or is retired or is discharged or is allowed to resign from service or dies, as the case may be." 7. The average of the last ten months emoluments must form the basis for calculation of pension. That means those who were actually drawing larger emoluments in the last ten months of their service will get larger amounts of pension. Nakaras case does not lay down that the same amount of pension must be paid to all persons retiring from Government service irrespective of the date of retirement. The contention of the petitioner that there is only one class of Government employees for the purpose of calculation of pension cannot be disputed. The Constitution Bench in Nakaras case has clearly laid down that there cannot be any mini-classification of Government servants for calculating the amount of pension payable. That means the same method should be adopted for calculating pension for all Government servants. But the question is what should be the quantum of pension payable to a Government servant ? Even if pension is calculated on the basis of the same formula, the basis of calculation has to be the average of the last ten months emoluments. This principle of adopting last ten months emoluments as the basis for calculation of pension must be uniformly applied to all persons drawing pension from the Central Government. This was all that was laid down in Nakaras case. It, however, did not lay down that the quantum of emoluments drawn during the last ten months of service of each Government employee must be taken to be the same for this purpose. 8. This aspect of the question was examined in the case of Indian Ex- Services League and others etc. v. Union of India and others, etc.,, 1991(1) SCR 158 : 1991(1) SCT 468 (SC). The case was argued on behalf of Armed Forces personnel retiring from commissioned ranks as well as Armed Forces personnel retiring from below the commissioned rank who were represented by Shri K.L. Rathee. J.S. Verma, J. (As His Lordship, then was) speaking for the Constitution Bench which heard the matter observed that the contention of the writ petitioners on the basis of Nakara decision was untenable. On behalf of the petitioners, it had been contended that all retirees who held the same ranks irrespective of their date of retirement must be given the same amount of pension. In effect, what was urged was that there must be "one rank one pension" for all the retirees irrespective of their date of retirement. This contention of the petitioners was rejected by the Constitution Bench by holding that Nakaras decision was of limited application. There was no scope for enlarging the ambit of that decision to cover all claims made by the petitioners for identical amount of pension to every retired person from the same rank irrespective of the date of retirement, even though the reckonable emoluments for the purpose of computation of pension were different. 9. In fact, the principle laid down in the case of Indian Ex-services League and others (supra) negates the case of the petitioner in the instant case. Nakaras case does not lay down that the last ten months emoluments must be deemed to be the same for all the employees at the time of their retirement. The emoluments have to be calculated according to the Government rules in force at the time of retirement of the employees. But, if the principle of average of last ten months emoluments has been adopted for some employees, then that principle must be extended to all the employees who have retired before them. Nakaras case did not lay down that the reckonable emoluments for the purpose of calculation of pension must be the same for a person occupying the same post. 10. It is also to be noted that the case of Krishena Kumar v. Union of India and others, AIR 1990 SC 1782 , another Constitution Bench examined the question whether on the strength of Nakaras case, petitioners were entitled to the same Provident Fund benefits as were given to those who retired subsequent to 31st March, 1979. It was argued on behalf of the petitioner that States obligation towards pensioners was the same as that towards persons who were to be paid Provident Fund benefits. This Court held that that was not the ratio of Nakaras case. On retirement of an employee, legal obligation under the Provident Fund account ended on payment of the Provident Fund dues of the employee. The Rules governing Provident Fund and contribution to such Fund were entirely different from the rules governing pension. 11. It was also held in the case of Union of India v. All India Services Pensioners Association and another, AIR 1988 SC 501 , that the principles laid down in Nakaras case could not be extended to the case of payment of gratuity. 12. It clearly appears from all these cases that Nakaras case is not a case of universal application irrespective of the facts and circumstances of the case. When the Government decided that pension was to be calculated on the basis of average salary drawn over a period of last ten months, it was held in Nakara, that this principle has to be applied even to those persons who had retired before the notified date. That, however, does not mean that the emoluments of the persons who were retiring after the notified date and those who have retired before the notified date holding the same status must be treated to be the same. This argument was specifically negatived by the Constitution Bench in the case of All India Services Pensioners Association (supra). What the petitioner is claiming in this case is more or less the same relief as was denied to him in the above case. 13. In vie | 0[ds]6. We are unable to uphold this contention. Nakaras case (supra) dealt with the manner of calculation of pension on the basis of average emoluments of a retired Government employee. Prior to the liberalisation of the formula for computation of pension made by the memorandum dated 25th May, 1979, average emoluments of the last thirty months of service of the employee provided the basis for calculation of pension. The 1979 memorandum provided that average emoluments must be calculated on the basis of the emoluments received by a Government servant during the last ten months of the service. That apart, a new slab system for computation of pension was introduced and the ceiling on pension was raised. As a result of these changes, the pensioners who retired prior to the specified date suffered triple jeopardy, viz., lower average emoluments, absence of slab system and the lowerview of the aforesaid, this writ petition must fail and is dismissed with no order as to costs. | 0 | 2,136 | 183 | ### Instruction:
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"5(1) Any claim to pension or family pension shall be regulated by the provisions of these rules in force at the time when a Government servant retired or is retired or is discharged or is allowed to resign from service or dies, as the case may be." 7. The average of the last ten months emoluments must form the basis for calculation of pension. That means those who were actually drawing larger emoluments in the last ten months of their service will get larger amounts of pension. Nakaras case does not lay down that the same amount of pension must be paid to all persons retiring from Government service irrespective of the date of retirement. The contention of the petitioner that there is only one class of Government employees for the purpose of calculation of pension cannot be disputed. The Constitution Bench in Nakaras case has clearly laid down that there cannot be any mini-classification of Government servants for calculating the amount of pension payable. That means the same method should be adopted for calculating pension for all Government servants. But the question is what should be the quantum of pension payable to a Government servant ? Even if pension is calculated on the basis of the same formula, the basis of calculation has to be the average of the last ten months emoluments. This principle of adopting last ten months emoluments as the basis for calculation of pension must be uniformly applied to all persons drawing pension from the Central Government. This was all that was laid down in Nakaras case. It, however, did not lay down that the quantum of emoluments drawn during the last ten months of service of each Government employee must be taken to be the same for this purpose. 8. This aspect of the question was examined in the case of Indian Ex- Services League and others etc. v. Union of India and others, etc.,, 1991(1) SCR 158 : 1991(1) SCT 468 (SC). The case was argued on behalf of Armed Forces personnel retiring from commissioned ranks as well as Armed Forces personnel retiring from below the commissioned rank who were represented by Shri K.L. Rathee. J.S. Verma, J. (As His Lordship, then was) speaking for the Constitution Bench which heard the matter observed that the contention of the writ petitioners on the basis of Nakara decision was untenable. On behalf of the petitioners, it had been contended that all retirees who held the same ranks irrespective of their date of retirement must be given the same amount of pension. In effect, what was urged was that there must be "one rank one pension" for all the retirees irrespective of their date of retirement. This contention of the petitioners was rejected by the Constitution Bench by holding that Nakaras decision was of limited application. There was no scope for enlarging the ambit of that decision to cover all claims made by the petitioners for identical amount of pension to every retired person from the same rank irrespective of the date of retirement, even though the reckonable emoluments for the purpose of computation of pension were different. 9. In fact, the principle laid down in the case of Indian Ex-services League and others (supra) negates the case of the petitioner in the instant case. Nakaras case does not lay down that the last ten months emoluments must be deemed to be the same for all the employees at the time of their retirement. The emoluments have to be calculated according to the Government rules in force at the time of retirement of the employees. But, if the principle of average of last ten months emoluments has been adopted for some employees, then that principle must be extended to all the employees who have retired before them. Nakaras case did not lay down that the reckonable emoluments for the purpose of calculation of pension must be the same for a person occupying the same post. 10. It is also to be noted that the case of Krishena Kumar v. Union of India and others, AIR 1990 SC 1782 , another Constitution Bench examined the question whether on the strength of Nakaras case, petitioners were entitled to the same Provident Fund benefits as were given to those who retired subsequent to 31st March, 1979. It was argued on behalf of the petitioner that States obligation towards pensioners was the same as that towards persons who were to be paid Provident Fund benefits. This Court held that that was not the ratio of Nakaras case. On retirement of an employee, legal obligation under the Provident Fund account ended on payment of the Provident Fund dues of the employee. The Rules governing Provident Fund and contribution to such Fund were entirely different from the rules governing pension. 11. It was also held in the case of Union of India v. All India Services Pensioners Association and another, AIR 1988 SC 501 , that the principles laid down in Nakaras case could not be extended to the case of payment of gratuity. 12. It clearly appears from all these cases that Nakaras case is not a case of universal application irrespective of the facts and circumstances of the case. When the Government decided that pension was to be calculated on the basis of average salary drawn over a period of last ten months, it was held in Nakara, that this principle has to be applied even to those persons who had retired before the notified date. That, however, does not mean that the emoluments of the persons who were retiring after the notified date and those who have retired before the notified date holding the same status must be treated to be the same. This argument was specifically negatived by the Constitution Bench in the case of All India Services Pensioners Association (supra). What the petitioner is claiming in this case is more or less the same relief as was denied to him in the above case. 13. In vie
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6. We are unable to uphold this contention. Nakaras case (supra) dealt with the manner of calculation of pension on the basis of average emoluments of a retired Government employee. Prior to the liberalisation of the formula for computation of pension made by the memorandum dated 25th May, 1979, average emoluments of the last thirty months of service of the employee provided the basis for calculation of pension. The 1979 memorandum provided that average emoluments must be calculated on the basis of the emoluments received by a Government servant during the last ten months of the service. That apart, a new slab system for computation of pension was introduced and the ceiling on pension was raised. As a result of these changes, the pensioners who retired prior to the specified date suffered triple jeopardy, viz., lower average emoluments, absence of slab system and the lowerview of the aforesaid, this writ petition must fail and is dismissed with no order as to costs.
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Godrej & Boyce Manufacturing Company Limited Vs. Ravindra Shanta Sharma | was not possible to hold an enquiry and that the termination was justified, lay on the management. It was for the management to prove that the employees conduct was tantamount to misconduct. In the present case the management sought an opportunity to lead evidence in the Tribunal. This cannot in my view be faulted in view of the decision in Firestone (supra) and DCM (supra). It was not necessary for the management in the instant case to show that it was not possible to conduct an enquiry since in the Labour Court evidence had in fact been led. This decision is therefore of no assistance to Mr. Singhvi.29. In Punjab Land Development (supra) reliance has been placed on paragraph 77 in support of the respondents plea that the termination amounts to retrenchment without following due process. However this aspect need not be gone into as it is beyond the scope of the present petition. In Chowgule & Co. (supra) this Court observed that if evidence had been led by the company and had been taken into consideration, the company had material on record to show that the workman was responsible for the purpose of acts of calling illegal strike and / or intimidating the workman for following their dictates, it was imperative for the company to have examined at least one workman to show that he was intimidated or to bring any other material on record to substantiate its allegation. Mr. Singhvi relies on this judgment on the aspect of the allegation that the respondent had prevented other workman from attending their duties. I am in agreement with Mr. Singhvi on this aspect since the petitioner in my view had not led evidence before the Tribunal.30. In Deepali Gundu Surwase (supra) reliance was placed on the proposition set out by the Supreme Court in the case of Rudhan Singh and Uday Narain Pande that on termination reinstatement and back wages is the normal rule and while taking a decision in that behalf the authority concerned would take into consideration certain criteria such as nature of misconduct, financial condition of the employee etc. and once employee showed that he was unemployed the onus on the employer to prove that he was gainfully employed and was getting substantially similar emoluments This principle can be usefully applied to the facts of the present case where the court was satisfied that the evidence on record established the respondent was not gainfully employed after the termination of his services and that the petitioner had not led any evidence to the contrary.31. On behalf of the petitioners, Mr. Cama, learned Senior counsel has contended that the finding of the Labour Court in paragraph 24 and 25 of the impugned judgment to the effect that the petitioner shall not engage in unfair labour practices by way of victimisation and that by issuing discharge order which was penal in nature and without conducting any domestic enquiry and without bonafide reason resulted in unfair labour practices under items 1(a), (b) an d(f) of Schedule IV of the said Act. He submitted that there was no basis for arriving at such a finding, the Labour Court in my view was justified in reaching its conclusion on issues (3) to (6) with consequences to follow. As far as the order in revision is concerned the Revisional Court has upheld the order of the Labour Court. The respondent continued to attend work between 3rd November, 2010 and 18th November, 2010 when he was eventually discharged. If the conduct of the respondent had been so grave and serious, then there was no reason why the petitioner company allowed him to attend to work for 15 days during which period the presence of the employee was not found detrimental to the interests of the company. Thus, the revisional Court found in favour of the respondent. Furthermore, although retrenchment compensation was said to have been paid by way of abundant caution provisions of Chapter V-B and Section 25N of the Industrial Disputes Act, 1947 had not been followed32. The Revisional Court has observed that the incident took place at the end of the first shift and there was no question to preventing other employees from attending to their duties who were the very employees who had come and gone along with the respondent to the Time Office. In my view the contention that the incident took place in the Time Office outside the operational area of the plant is also an indicator of the fact that there was probably no disruption of work. The two witnesses who on behalf of the company have not deposed to any disruption having been caused. In the affidavit in reply filed on behalf of the respondent, the respondent has taken up the contention that termination simplicitor did not amount to retrenchment, in law seems illegal. The allegations are made of the tactics of the union to which the petitioner took allegiance by victimising the workman joining the respondent union MNKS. According to the respondent, the petitioner was targeting the respondent by issuing a show cause notice and framing false charges. According to him the company has made identical allegations against the respondent and Mr. Fernandes. Mr. Singhvi had invited my attention to the comparative table of allegations in paragraph 14 of the affidavit in reply. Whereas statements attributed to the respondent were in english those attributed to Mr. Fernandes were in marathi. I find it difficult to believe that both persons made almost identical statements.33. Furthermore it was contended that if there had been a real attempt at outraging the modesty of the lady, it was only expected under Vishakha guidelines to institute an inquiry against the respondent. The impugned judgment of the Labour court also records that if there were a series of altercations and slogan shouting, the security guards would have immediately arrived on the spot. This is one more reason according to the Courts below as to why deposition of Mr. Borkar could not be believed. | 1[ds]12. I have heard the learned counsel at length and perused the impugned order. The complaint filed under section 28 and 30(2) of the Act proceeds on the basis that there are 4500 permanent workman employed in the petitioner company all of whom owe allegiance to three unions. The Godrej & Boyce Shramik Sangh is a recognised union but is supportive of the management for many years. It is contended that the said union has ignored the cause of workers and deliberately failed to take up their cause on several occasions. In the affidavit in reply the respondent contended that initially the the petitioners transferred staff committee members including the respondent to various other locations. Thus a background is laid by the respondent. It is contended that the company had issued show cause notice to the respondent in the past and for remaining away from work on one occasion. According to the complainant for the yearbonus was paid @ 16000/to all workers other than to member workers of the second union and the union supported by the respondent.13. The complainant has narrated that on 3rd November, 2010 he along with the said Mr. Fernandes had lodged a complaint at the Vikhroli Police station against the company. According to the complainant he was unemployed since termination of his services and does not have an alternative source of employment. He therefore sought interim relief on the basis that his services were abruptly terminated and thereby the petitioners have committed unfair labour practices under Item 1(a), (b), (c), (d), (f) and (g) of Schedule IV of the said Act. But the respondent contended that the petitioner had filed a false complaint before Vikhroli Police Station and the services of the respondent has been terminated with undue haste, disregarding principles of natural justice by not conducting a departmental enquiry. No opportunity was given for filing his say. The punishment meted out to the respondent was disproportionate. He therefore sought reinstatement with continuity of service and dismissal of the petition.14. The case of the company in its reply filed before the Labour Court indicates that said complaint disclosed no cause of action. It reiterates the incident and narrates how retrenchment compensation has been paid by the way of abundant caution. The affidavit in lieu of examination in chief filed before the Industrial Court proceeds on the basis of the same averment.15. Mr. Borkar in charge of the plant at the material time was also examined on oath. He narrated the incident including the complainants conduct in charging at Mrs. Handa, Senior Manager Personnel. Mr. Borkar was cross examined and during the cross examination he deposed that bonus was not given to each and every workman and he could not say how many workmen were given bonus. He admitted that bonus was not offered to the respondent and his colleague Mr. Fernandes. He admitted that he had not given a written complaint to Mrs. Handa that the respondent workman were shouting slogans. According to him there was no reason to record the incident in writing and after the incident he lodged an FIR in Vikhroli police station. He deposed that the security personnel had also attended the police station. The witness admitted that the respondent was discharged without conducting any inquiry in respect of the complaint. No show cause notice was issued by the complainant or the other workman and the witness was not authorised to issue such a complaint. That the appropriate disciplinary authority was the manufacturing head of the petitioner who had also not authorised any disciplinary action. Furthermore it was disclosed in the deposition that between 3rd November, 2010 and 18th November, 2010, the respondent was on duty and there is no allegation of the respondent having behaved in an untoward manner. The witness Mr. Borkar had not called the security personnel and the other witness examined was Mrs. Handa. She was not aware whether the respondent was working in the company during 3rd October, 2010 to 18th October, 2010. No written complaint or incident was made to any Senior Officer in the company. That only Mr. Borkar and she had made a written complaint of the incident. The conversation which is now set out in the affidavit and the discharge letter is not part of the FIR. The witness admitted that the respondent was not given show cause notice stating that his services was liable to be terminated on account of procedure provided in the Standing Orders.The second witness Mr Umesh Raghunath Kale was also examined and cross examined The impugned order proceeds to hold that the petitioner had engaged in unfair labour practices under item 1(a) (b) and (f) of schedule IV. The complainant was directed to be reinstated after adjusting the amounts paid to him as wages and retrenchment compensation. The impugned order dated 27th August, 2015 passed in Revision Application No. (ULP) 83 of 2015 whereby the impugned order passed by the Labour Court was upheld. The Labour Court after evaluating the evidence held that the impugned order records that the discharge order did not reveal the impracticality of holding department inquiry, even though it observed that the acts of complaint was so grave and serious act of indiscipline amounts to misconduct as per Certified Standing Orders No.22. The Court found that the Government authority had contemplated the need for leading evidence, but the discharge order mentioned that the company reserved its rights to adduce evidence to justify its action before the appropriate forum if and when the respondent chose to raise a dispute. The Court therefore inferred that the petitioner was keen to terminate the services of the respondent, thus amounting to colourable exercise of employers rights lacking in good faith and in undue haste.On a reading of Standing Order 21, 22 and 23 dealing with procedure for termination, acts of misconduct and the result of misconduct leading to enquiries to procedure and punishment are all to be read together. In the instant case it is not possible to accept the petitioners contention that the discharge order pursuant to Standing Order 21 need not contain any reasons. If this plea is accepted this would grant unbridled power to deal with the work force which is impermissible and not contemplated in the scheme of the Act. The Labour Court found that the plea of loss of confidence is also not established. Mr. Cama had contended that the finding of the Labour Court to the effect that the petitioners witness Mr. Borkar had admitted in his cross examination that no employee had complained in writing that they were restrained by the respondent or Mr. Fernandes from doing their work was perverse. According to Mr. Cama the witnesses had not so deposed. I however find this submission incorrect because the witness has in his cross examination in paragraph 2 answer to the second question has stated as follows: No employee had given in writing. Thus there is no merit in the contention that the impugned order is perverse because as it attributes a statement to a witness which the witness had not made. In appreciating the evidence of Mr. Borkar, the Court has disbelieved his version of the alleged incident.20. Furthermore, the Court observed that Mrs. Handa, Senior Manager – Personnel had admitted to the presence of one Mr. Lekhwar in the office of Mr. Borkar but even Mr. Lekhwar had not reported of the alleged incident. On the other hand, the said Mr. Fernandes has separately lodged a complaint against Mr. Borkar and Mrs. Handa. The impugned judgment of the Labour Court records that the incident is said to have taken place on 3rd November, 2010 and thereafter no further investigation has been carried out in the alleged offences under section 504 and 506 of the IPC since there were cross allegations between respondent and Mrs. Handa regarding the incident. Although the complaint against the respondent included charges of attempt to outrage the modesty of women. No such offence of outraging the modesty of women was recorded against respondent or his colleagues in his group. The Court concluded that the complaint filed on behalf of the company by Mrs. Handa was by the respondent witness probably was a counter blast and was disbelieved. The impugned order has recorded that both witnesses on behalf of the company had made written complaints. However, no other persons are stated to have witnessed the incident. In view of this position and the fact that there were cross complaints filed in the police station, it was concluded that the version of the companys witness could not be believed.21. In TELCO Ltd (supra) the Supreme Court while considering the powers of the Industrial Tribunal upon discharge and dismissal of workmen and whether rules of natural justice have been violated rendering the discharge / dismissal malafide, observed that the company had two alternatives, either to act under the Standing Order or hold a domestic enquiry. Opting for a domestic enquiry would mean that an enquiry would be going on parallel to that before the committing magistrate. The company preferred to invoke the Standing Order. The Tribunal held that the domestic enquiry which had meanwhile been commenced against other employees had been vitiated. Considering extraneous matter it was held that the Tribunal could notthe finding and decide for itself that the orders of dismissal were unjustified and no question of victimisation or bias against the workman could arise once it is held that the finding of misconduct alleged against the employees was properly arrived at and the domestic inquiry would in no way be vitiated. I do not see how TELCO Ltd. (supra) is of any assistance to the petitioner in the present case. The impugned order has evaluated the evidence led and come to a conclusion on appreciation of evidence after the company opted the Standing Order route.22. In Kamal Kishore Lakshman (supra) the Court observed that loss of confidence by the employer in the employee is a feature which certainly affects the character or reputation of the employee and that an allegation of loss of confidence amounted to a stigma. Further it was held that if a domestic enquiry had not been held before the disciplinary action was taken, it is open to the employer to ask an opportunity during the course of adjudication and in the facts of that case, the order of separation based on loss of confidence was justified before the Labour Court. In the present case the petitioner seems to have adopted but the course of its choice and had tried to established its case before the Labour Court and thereafter in revision before the Industrial Court. These Courts have given their finding which are in my view, fair and reasonable. Kamal Kishore Lakshman (supra) merely contemplates a course of action namely seeking to establish a case of misconduct at the time of adjudication. This judgment is of no assistance to the petitioner in the facts of the present case.23. Firestone (supra) lays down in no uncertain terms that even if no enquiry was held, the parties could adduce evidence before the Industrial Tribunal and in that case the Industrial Tribunal had to decide whether misconduct had been established. It was held that the Industrial Court had no power to straightaway order reinstatement if the enquiry is held to be improper or no enquiry was held provided the employer sought opportunity to lead evidence. If the misconduct was established either in the enquiry or in evidence before the Industrial Tribunal, the punishment cannot be interfered with, except when it is so harsh as to suggest victimisation and that if a dismissal order was set aside it was within the discretion of the Industrial Tribunal whether or not to reinstate the workmen. Firestone (supra) further held that the provisions of welfare legislation suggests that as per the Industrial Disputes Act Courts should adopt a beneficent rule of construction. In my view Firestone (supra) does not come to the assistance of the petitioners. No doubt the company may have been justified in leading evidence before the Labour Court, rather than conducting a domestic inquiry. However the question that arises is, having adopted such course of action and a failed challenge, whether the impugned order called for any interference. In this respect the decision in Firestone (supra) is of no avail.24. In Shankar Chakravarti(supra) the Supreme Court after relying on various decisions in Firestone (supra) the Court observed that even if no enquiry has been held by an employer or if the enquiry held was found to be defective, the Tribunal in order to satisfy itself about the legality and validity of the orders, has to give an opportunity to the employer and employee to lead evidence. The Tribunal has jurisdiction to consider evidence before it for the first time only, if no enquiry is conducted or the enquiry held was found to be defective. The law did not recognise the Tribunal reinstating the dismissed employee merely on finding that no domestic inquiry is held or if the inquiry was found to be defective. In the instant case the management has adopted this route. Shankar Chakravarti(supra) therefore reiterates Firestone (supra) holding that the management itself must seek an opportunity to lead evidence. In that case the High Court had corrected the Tribunal in appeal. It was incumbent on the Industrial Court to give an opportunity to the employee to lead evidence to prove charges alleged. The Court found that there was no pleading seeking additional evidence nor was a request made before the Tribunal when the proceeding was going on till the award was made. The Supreme Court held that the Calcutta High Court was in error in granting an opportunity which had not even been sought. In the case at hand the petitioner sought opportunity to lead evidence before the Tribunal which was granted and availed of. I do not see how Shankar Chakravarti (supra) is of any assistance to the petitioner in the instant case.25. Furthermore in Delhi Cloth & General Mills Co. (supra) it was held that where no enquiry had been held, the employer or employee has a right to adduce evidence before the Tribunal. This was recognised in Firestone wherein it was reiterated that while the right to take disciplinary action and the quantum of punishment is a managerial function, but if the dispute is referred to the Tribunal, the Tribunal had the power to see whether the termination of service of a workman is justified and to give appropriate relief. The employer is expected to conduct a proper enquiry according to provisions of Standing Orders and principles of natural justice, to ensure that the enquiry was not an empty formality and the interference with the decision of the employer would be justified only when the findings were found to be perverse and if the management had victimised the workman. Even if no enquiry was held the Tribunal was required to satisfy itself of the validity of the order and offer an even opportunity to parties to lead evidence before it. The one who seeks to avail such an opportunity, should ask for it at the appropriate stage and if so asked, the Tribunal has no power to refuse the same.As far as judgments referred to on behalf of respondent are concerned in Davinder Singh and Others (supra) the Supreme Court while dealing with an order of termination for indiscipline at a Railway Station found that the order invoking discharge passed based on compendium of instructions on Home Guards and Rules were not exercised upon the guards concerned on the basis of rule providing for discharge of any member by the authority which had appointed him when his services are no longer required. The Court held that the ground of indiscipline would amount to an act of misconduct and due procedure under Rule 27 had to be followed which provided that no order of dismissal would be passed without giving a reasonable opportunity of showing cause against action proposed to be taken. The Court quoted that the expression discharge was interpreted by the State of Kerala vs. Mother Anasthasia, Superior General [5 (1997) 10 SCC 79 ] and wherein it was held that discharge should be read ejusdem generis which in that case would indicate abolition of post or course of study etc. except for discharge due to misconduct.28. In Amar Chakravarty and Others vs. Maruti Suzuki India Limited (supra) the Supreme Court reached a conclusion that if no enquiry is held, the onus of proving that it was not possible to hold an enquiry and that the termination was justified, lay on the management. It was for the management to prove that the employees conduct was tantamount to misconduct. In the present case the management sought an opportunity to lead evidence in the Tribunal. This cannot in my view be faulted in view of the decision in Firestone (supra) and DCM (supra). It was not necessary for the management in the instant case to show that it was not possible to conduct an enquiry since in the Labour Court evidence had in fact been led. This decision is therefore of no assistance to Mr. Singhvi.29. In Punjab Land Development (supra) reliance has been placed on paragraph 77 in support of the respondents plea that the termination amounts to retrenchment without following due process. However this aspect need not be gone into as it is beyond the scope of the present petition. In Chowgule & Co. (supra) this Court observed that if evidence had been led by the company and had been taken into consideration, the company had material on record to show that the workman was responsible for the purpose of acts of calling illegal strike and / or intimidating the workman for following their dictates, it was imperative for the company to have examined at least one workman to show that he was intimidated or to bring any other material on record to substantiate its allegation. Mr. Singhvi relies on this judgment on the aspect of the allegation that the respondent had prevented other workman from attending their duties. I am in agreement with Mr. Singhvi on this aspect since the petitioner in my view had not led evidence before the Tribunal.30. In Deepali Gundu Surwase (supra) reliance was placed on the proposition set out by the Supreme Court in the case of Rudhan Singh and Uday Narain Pande that on termination reinstatement and back wages is the normal rule and while taking a decision in that behalf the authority concerned would take into consideration certain criteria such as nature of misconduct, financial condition of the employee etc. and once employee showed that he was unemployed the onus on the employer to prove that he was gainfully employed and was getting substantially similar emoluments This principle can be usefully applied to the facts of the present case where the court was satisfied that the evidence on record established the respondent was not gainfully employed after the termination of his services and that the petitioner had not led any evidence to the contrary.The Revisional Court has observed that the incident took place at the end of the first shift and there was no question to preventing other employees from attending to their duties who were the very employees who had come and gone along with the respondent to the Time Office. In my view the contention that the incident took place in the Time Office outside the operational area of the plant is also an indicator of the fact that there was probably no disruption of work. The two witnesses who on behalf of the company have not deposed to any disruption having been caused. In the affidavit in reply filed on behalf of the respondent, the respondent has taken up the contention that termination simplicitor did not amount to retrenchment, in law seems illegal. The allegations are made of the tactics of the union to which the petitioner took allegiance by victimising the workman joining the respondent union MNKS. According to the respondent, the petitioner was targeting the respondent by issuing a show cause notice and framing false charges. According to him the company has made identical allegations against the respondent and Mr. Fernandes. Mr. Singhvi had invited my attention to the comparative table of allegations in paragraph 14 of the affidavit in reply. Whereas statements attributed to the respondent were in english those attributed to Mr. Fernandes were in marathi. I find it difficult to believe that both persons made almost identical statements.33. Furthermore it was contended that if there had been a real attempt at outraging the modesty of the lady, it was only expected under Vishakha guidelines to institute an inquiry against the respondent. The impugned judgment of the Labour court also records that if there were a series of altercations and slogan shouting, the security guards would have immediately arrived on the spot. This is one more reason according to the Courts below as to why deposition of Mr. Borkar could not be believed. | 1 | 6,747 | 3,770 | ### 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:
was not possible to hold an enquiry and that the termination was justified, lay on the management. It was for the management to prove that the employees conduct was tantamount to misconduct. In the present case the management sought an opportunity to lead evidence in the Tribunal. This cannot in my view be faulted in view of the decision in Firestone (supra) and DCM (supra). It was not necessary for the management in the instant case to show that it was not possible to conduct an enquiry since in the Labour Court evidence had in fact been led. This decision is therefore of no assistance to Mr. Singhvi.29. In Punjab Land Development (supra) reliance has been placed on paragraph 77 in support of the respondents plea that the termination amounts to retrenchment without following due process. However this aspect need not be gone into as it is beyond the scope of the present petition. In Chowgule & Co. (supra) this Court observed that if evidence had been led by the company and had been taken into consideration, the company had material on record to show that the workman was responsible for the purpose of acts of calling illegal strike and / or intimidating the workman for following their dictates, it was imperative for the company to have examined at least one workman to show that he was intimidated or to bring any other material on record to substantiate its allegation. Mr. Singhvi relies on this judgment on the aspect of the allegation that the respondent had prevented other workman from attending their duties. I am in agreement with Mr. Singhvi on this aspect since the petitioner in my view had not led evidence before the Tribunal.30. In Deepali Gundu Surwase (supra) reliance was placed on the proposition set out by the Supreme Court in the case of Rudhan Singh and Uday Narain Pande that on termination reinstatement and back wages is the normal rule and while taking a decision in that behalf the authority concerned would take into consideration certain criteria such as nature of misconduct, financial condition of the employee etc. and once employee showed that he was unemployed the onus on the employer to prove that he was gainfully employed and was getting substantially similar emoluments This principle can be usefully applied to the facts of the present case where the court was satisfied that the evidence on record established the respondent was not gainfully employed after the termination of his services and that the petitioner had not led any evidence to the contrary.31. On behalf of the petitioners, Mr. Cama, learned Senior counsel has contended that the finding of the Labour Court in paragraph 24 and 25 of the impugned judgment to the effect that the petitioner shall not engage in unfair labour practices by way of victimisation and that by issuing discharge order which was penal in nature and without conducting any domestic enquiry and without bonafide reason resulted in unfair labour practices under items 1(a), (b) an d(f) of Schedule IV of the said Act. He submitted that there was no basis for arriving at such a finding, the Labour Court in my view was justified in reaching its conclusion on issues (3) to (6) with consequences to follow. As far as the order in revision is concerned the Revisional Court has upheld the order of the Labour Court. The respondent continued to attend work between 3rd November, 2010 and 18th November, 2010 when he was eventually discharged. If the conduct of the respondent had been so grave and serious, then there was no reason why the petitioner company allowed him to attend to work for 15 days during which period the presence of the employee was not found detrimental to the interests of the company. Thus, the revisional Court found in favour of the respondent. Furthermore, although retrenchment compensation was said to have been paid by way of abundant caution provisions of Chapter V-B and Section 25N of the Industrial Disputes Act, 1947 had not been followed32. The Revisional Court has observed that the incident took place at the end of the first shift and there was no question to preventing other employees from attending to their duties who were the very employees who had come and gone along with the respondent to the Time Office. In my view the contention that the incident took place in the Time Office outside the operational area of the plant is also an indicator of the fact that there was probably no disruption of work. The two witnesses who on behalf of the company have not deposed to any disruption having been caused. In the affidavit in reply filed on behalf of the respondent, the respondent has taken up the contention that termination simplicitor did not amount to retrenchment, in law seems illegal. The allegations are made of the tactics of the union to which the petitioner took allegiance by victimising the workman joining the respondent union MNKS. According to the respondent, the petitioner was targeting the respondent by issuing a show cause notice and framing false charges. According to him the company has made identical allegations against the respondent and Mr. Fernandes. Mr. Singhvi had invited my attention to the comparative table of allegations in paragraph 14 of the affidavit in reply. Whereas statements attributed to the respondent were in english those attributed to Mr. Fernandes were in marathi. I find it difficult to believe that both persons made almost identical statements.33. Furthermore it was contended that if there had been a real attempt at outraging the modesty of the lady, it was only expected under Vishakha guidelines to institute an inquiry against the respondent. The impugned judgment of the Labour court also records that if there were a series of altercations and slogan shouting, the security guards would have immediately arrived on the spot. This is one more reason according to the Courts below as to why deposition of Mr. Borkar could not be believed.
### Response:
1
### Explanation:
The one who seeks to avail such an opportunity, should ask for it at the appropriate stage and if so asked, the Tribunal has no power to refuse the same.As far as judgments referred to on behalf of respondent are concerned in Davinder Singh and Others (supra) the Supreme Court while dealing with an order of termination for indiscipline at a Railway Station found that the order invoking discharge passed based on compendium of instructions on Home Guards and Rules were not exercised upon the guards concerned on the basis of rule providing for discharge of any member by the authority which had appointed him when his services are no longer required. The Court held that the ground of indiscipline would amount to an act of misconduct and due procedure under Rule 27 had to be followed which provided that no order of dismissal would be passed without giving a reasonable opportunity of showing cause against action proposed to be taken. The Court quoted that the expression discharge was interpreted by the State of Kerala vs. Mother Anasthasia, Superior General [5 (1997) 10 SCC 79 ] and wherein it was held that discharge should be read ejusdem generis which in that case would indicate abolition of post or course of study etc. except for discharge due to misconduct.28. In Amar Chakravarty and Others vs. Maruti Suzuki India Limited (supra) the Supreme Court reached a conclusion that if no enquiry is held, the onus of proving that it was not possible to hold an enquiry and that the termination was justified, lay on the management. It was for the management to prove that the employees conduct was tantamount to misconduct. In the present case the management sought an opportunity to lead evidence in the Tribunal. This cannot in my view be faulted in view of the decision in Firestone (supra) and DCM (supra). It was not necessary for the management in the instant case to show that it was not possible to conduct an enquiry since in the Labour Court evidence had in fact been led. This decision is therefore of no assistance to Mr. Singhvi.29. In Punjab Land Development (supra) reliance has been placed on paragraph 77 in support of the respondents plea that the termination amounts to retrenchment without following due process. However this aspect need not be gone into as it is beyond the scope of the present petition. In Chowgule & Co. (supra) this Court observed that if evidence had been led by the company and had been taken into consideration, the company had material on record to show that the workman was responsible for the purpose of acts of calling illegal strike and / or intimidating the workman for following their dictates, it was imperative for the company to have examined at least one workman to show that he was intimidated or to bring any other material on record to substantiate its allegation. Mr. Singhvi relies on this judgment on the aspect of the allegation that the respondent had prevented other workman from attending their duties. I am in agreement with Mr. Singhvi on this aspect since the petitioner in my view had not led evidence before the Tribunal.30. In Deepali Gundu Surwase (supra) reliance was placed on the proposition set out by the Supreme Court in the case of Rudhan Singh and Uday Narain Pande that on termination reinstatement and back wages is the normal rule and while taking a decision in that behalf the authority concerned would take into consideration certain criteria such as nature of misconduct, financial condition of the employee etc. and once employee showed that he was unemployed the onus on the employer to prove that he was gainfully employed and was getting substantially similar emoluments This principle can be usefully applied to the facts of the present case where the court was satisfied that the evidence on record established the respondent was not gainfully employed after the termination of his services and that the petitioner had not led any evidence to the contrary.The Revisional Court has observed that the incident took place at the end of the first shift and there was no question to preventing other employees from attending to their duties who were the very employees who had come and gone along with the respondent to the Time Office. In my view the contention that the incident took place in the Time Office outside the operational area of the plant is also an indicator of the fact that there was probably no disruption of work. The two witnesses who on behalf of the company have not deposed to any disruption having been caused. In the affidavit in reply filed on behalf of the respondent, the respondent has taken up the contention that termination simplicitor did not amount to retrenchment, in law seems illegal. The allegations are made of the tactics of the union to which the petitioner took allegiance by victimising the workman joining the respondent union MNKS. According to the respondent, the petitioner was targeting the respondent by issuing a show cause notice and framing false charges. According to him the company has made identical allegations against the respondent and Mr. Fernandes. Mr. Singhvi had invited my attention to the comparative table of allegations in paragraph 14 of the affidavit in reply. Whereas statements attributed to the respondent were in english those attributed to Mr. Fernandes were in marathi. I find it difficult to believe that both persons made almost identical statements.33. Furthermore it was contended that if there had been a real attempt at outraging the modesty of the lady, it was only expected under Vishakha guidelines to institute an inquiry against the respondent. The impugned judgment of the Labour court also records that if there were a series of altercations and slogan shouting, the security guards would have immediately arrived on the spot. This is one more reason according to the Courts below as to why deposition of Mr. Borkar could not be believed.
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Ganesh Prasad Dixit Vs. Commissioner Of Sales Tax, Madhya Pradesh | selling and supplying the same commodity. Mere buying for personal consumption, i. e., without a profit motive will not make a person dealer within the meaning of the Act, but a person who consumes a commodity bought by him in the course of his trade, or use in manufacturing another commodity for sale, would be regarded as a dealer. The Legislature has not made sale of the very article bought by a person a condition for treating him as a dealer; the definition merely requires that the buying of the commodity mentioned in Rule 5 (2) must be in the course of business, i. e., must be for sale or use with a view to make profit out of the integrated activity of buying and disposal. The commodity may itself be converted into another saleable commodity, or it may be used as an ingredient or in aid of a manufacturing process leading to the production of such saleable commodity."This Court agreed with the view expressed in L. M. S. Sadak Thamby and Co. v. The State of Madras, (1963) 14 STC 753 (Mad) in which a similar question was decided by the High Court of Madras. In that case the assessee had purchased tanning bark and had consumed it in tanning raw hides. The Madras High Court held that the buying of goods was in the course of business since it was associated with the business of tanning of hides carried on with a profit-making motive. These decisions support the contention of the State that price paid for goods bought for consumption in manufacturing an article for sale is exigible to purchase-tax even if the goods purchased are either destroyed or transformed into another species of goods.7. Counsel for the appellants urged that in the cases of H. Abdul Bakshi and Bros., 15 STC 644 = (AIR 1965 SC 531 ) and L. M. S. Sadak Thamby and Company, (1963) 14 STC 753 (Mad) the assessees were carrying on the business of selling goods manufactured by them and for the purpose of manufacturing those goods certain other goods were purchased and consumed in the process of manufacture, but here the goods are not consumed in producing another commodity for sale and on that account the two cases are distinguishable. The answer to that argument must be sought in the terms of Section 7. The phraseology used in that Section is somewhat involved, but the meaning of the Section is fairly plain. Where no sales tax is payable under Section 6 on the sale, price of the goods, purchase-tax is payable by a dealer who buys taxable goods in the course of his business, and (1) either consumes such goods in the manufacture of other goods for sale, or (2) consumes such goods otherwise; or (3) disposes of such goods in any manner other than by way of sale in the State, or (4) despatches them to a place outside the State except as a direct result of sale or purchase in the course of inter-State trade or commerce. The assessees are registered as dealers and they have purchased building materials in the course of their business: the building materials are taxable under the Act, and the appellants have consumed the materials otherwise than in the manufacture of goods for sale and for a profit motive. On the plain words of Sec. the purchase price is taxable.8. Mr. Chagla for the appellants urged that the expression "or otherwise" is intended to denote a conjunctive introducing a specific alternative to the words "for sale" immediately preceding. The clause in which it occurs means, says Mr. Chagla, that by S. 7 the price paid for buying goods consumed in the manufacture of other goods intended to be sold or otherwise disposed of, alone is taxable.We do not think that that is a reasonable interpretation of the expression "either consumes such goods in the manufacture of other goods for sale or other wise". It is intended by the Legislature that consumption of goods renders the price paid for their purchase taxable, if the goods are used in the manufacture of other goods for sale or if the goods are consumed otherwise.9. The decision in Versova Koli Sahakari Vahatuk Sangh Ltd. v. The State of Maharashtra, (1968) 22 STC 116 (Bom) on which reliance was placed by Mr. Chagla has, in our judgment, no application. In that case a society registered under the Bombay Co-operative Societies Act, 1925, carried on the business of transporting fish belonging to its members from fishing centres to the markets and vice versa. For preserving fish in the course of transport, the society used to purchase ice, and the members, whose fish was transported, were charged for the quantity of ice required in respect of their baskets of fish. The difference between the price paid by the society for ice purchased and the charge made by the society for ice supplied was brought to tax by the Sales Tax Officer under the Bombay Sales Tax Act, 1959. The High Court of Bombay held that the society was not supplying ice with the intention of carrying on business in ice, and on that account the society was not a "dealer" within the definition of that term in Section 2 (11) of the Act in regard to the supply of ice by it to its members. In that case the taxing authority did not seek to impose purchase-tax: he sought to bring to tax the difference between the price paid by the society for purchasing ice and the charges which it made from its members for supplying ice, and the High Court held that in supplying ice the society was not carrying on business in ice, and on that account was not a "dealer."Whether in a particular set of circumstances a person may be said to be carrying on business in a commodity must depend upon the facts of that case and no general test may be applied for determining that question. | 0[ds]3. Rule 33 of the Madhya Pradesh General Sales Tax Rules, 1959, provides that a notice of assessment under Section 18 (5) shall be in Form XVI, and ordinarily it shall give not less than 15 days from the date of the service to the assessee to show cause why he should not be assessed or reassessed to tax and/or to pay penalty.The notices served upon the appellants did not give them a clear period of 15 days to show cause. But we are unable to hold on that account that the notices and the assessments were invalid. We agree with the High Court that the rule is not intended to be "either invariable or rigid", and unless prejudice has resulted to the tax-payer the proceedings are not liable to be set aside".It is not even suggested that because of the insufficiency of time the appellants were unable to submit their explanation for failure to make their returns ofBut the terms of Rule 33 of the Madhya Pradesh General Sales Tax Rules are plainly not mandatory. The answer given by the High Court on the first question must bedo not think that that is a reasonable interpretation of the expression "either consumes such goods in the manufacture of other goods for sale or other wise". It is intended by the Legislature that consumption of goods renders the price paid for their purchase taxable, if the goods are used in the manufacture of other goods for sale or if the goods are consumed otherwise. | 0 | 2,707 | 276 | ### 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:
selling and supplying the same commodity. Mere buying for personal consumption, i. e., without a profit motive will not make a person dealer within the meaning of the Act, but a person who consumes a commodity bought by him in the course of his trade, or use in manufacturing another commodity for sale, would be regarded as a dealer. The Legislature has not made sale of the very article bought by a person a condition for treating him as a dealer; the definition merely requires that the buying of the commodity mentioned in Rule 5 (2) must be in the course of business, i. e., must be for sale or use with a view to make profit out of the integrated activity of buying and disposal. The commodity may itself be converted into another saleable commodity, or it may be used as an ingredient or in aid of a manufacturing process leading to the production of such saleable commodity."This Court agreed with the view expressed in L. M. S. Sadak Thamby and Co. v. The State of Madras, (1963) 14 STC 753 (Mad) in which a similar question was decided by the High Court of Madras. In that case the assessee had purchased tanning bark and had consumed it in tanning raw hides. The Madras High Court held that the buying of goods was in the course of business since it was associated with the business of tanning of hides carried on with a profit-making motive. These decisions support the contention of the State that price paid for goods bought for consumption in manufacturing an article for sale is exigible to purchase-tax even if the goods purchased are either destroyed or transformed into another species of goods.7. Counsel for the appellants urged that in the cases of H. Abdul Bakshi and Bros., 15 STC 644 = (AIR 1965 SC 531 ) and L. M. S. Sadak Thamby and Company, (1963) 14 STC 753 (Mad) the assessees were carrying on the business of selling goods manufactured by them and for the purpose of manufacturing those goods certain other goods were purchased and consumed in the process of manufacture, but here the goods are not consumed in producing another commodity for sale and on that account the two cases are distinguishable. The answer to that argument must be sought in the terms of Section 7. The phraseology used in that Section is somewhat involved, but the meaning of the Section is fairly plain. Where no sales tax is payable under Section 6 on the sale, price of the goods, purchase-tax is payable by a dealer who buys taxable goods in the course of his business, and (1) either consumes such goods in the manufacture of other goods for sale, or (2) consumes such goods otherwise; or (3) disposes of such goods in any manner other than by way of sale in the State, or (4) despatches them to a place outside the State except as a direct result of sale or purchase in the course of inter-State trade or commerce. The assessees are registered as dealers and they have purchased building materials in the course of their business: the building materials are taxable under the Act, and the appellants have consumed the materials otherwise than in the manufacture of goods for sale and for a profit motive. On the plain words of Sec. the purchase price is taxable.8. Mr. Chagla for the appellants urged that the expression "or otherwise" is intended to denote a conjunctive introducing a specific alternative to the words "for sale" immediately preceding. The clause in which it occurs means, says Mr. Chagla, that by S. 7 the price paid for buying goods consumed in the manufacture of other goods intended to be sold or otherwise disposed of, alone is taxable.We do not think that that is a reasonable interpretation of the expression "either consumes such goods in the manufacture of other goods for sale or other wise". It is intended by the Legislature that consumption of goods renders the price paid for their purchase taxable, if the goods are used in the manufacture of other goods for sale or if the goods are consumed otherwise.9. The decision in Versova Koli Sahakari Vahatuk Sangh Ltd. v. The State of Maharashtra, (1968) 22 STC 116 (Bom) on which reliance was placed by Mr. Chagla has, in our judgment, no application. In that case a society registered under the Bombay Co-operative Societies Act, 1925, carried on the business of transporting fish belonging to its members from fishing centres to the markets and vice versa. For preserving fish in the course of transport, the society used to purchase ice, and the members, whose fish was transported, were charged for the quantity of ice required in respect of their baskets of fish. The difference between the price paid by the society for ice purchased and the charge made by the society for ice supplied was brought to tax by the Sales Tax Officer under the Bombay Sales Tax Act, 1959. The High Court of Bombay held that the society was not supplying ice with the intention of carrying on business in ice, and on that account the society was not a "dealer" within the definition of that term in Section 2 (11) of the Act in regard to the supply of ice by it to its members. In that case the taxing authority did not seek to impose purchase-tax: he sought to bring to tax the difference between the price paid by the society for purchasing ice and the charges which it made from its members for supplying ice, and the High Court held that in supplying ice the society was not carrying on business in ice, and on that account was not a "dealer."Whether in a particular set of circumstances a person may be said to be carrying on business in a commodity must depend upon the facts of that case and no general test may be applied for determining that question.
### Response:
0
### Explanation:
3. Rule 33 of the Madhya Pradesh General Sales Tax Rules, 1959, provides that a notice of assessment under Section 18 (5) shall be in Form XVI, and ordinarily it shall give not less than 15 days from the date of the service to the assessee to show cause why he should not be assessed or reassessed to tax and/or to pay penalty.The notices served upon the appellants did not give them a clear period of 15 days to show cause. But we are unable to hold on that account that the notices and the assessments were invalid. We agree with the High Court that the rule is not intended to be "either invariable or rigid", and unless prejudice has resulted to the tax-payer the proceedings are not liable to be set aside".It is not even suggested that because of the insufficiency of time the appellants were unable to submit their explanation for failure to make their returns ofBut the terms of Rule 33 of the Madhya Pradesh General Sales Tax Rules are plainly not mandatory. The answer given by the High Court on the first question must bedo not think that that is a reasonable interpretation of the expression "either consumes such goods in the manufacture of other goods for sale or other wise". It is intended by the Legislature that consumption of goods renders the price paid for their purchase taxable, if the goods are used in the manufacture of other goods for sale or if the goods are consumed otherwise.
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SUMAN DEVI & ORS Vs. STATE OF UTTARAKHAND AND ORS | of the State of Uttarakhand. It was only in 2016, after the advertisement for the concerned recruitment was published, that the rules were changed; the changed new rules relieved the requirement of having to qualify the Intermediate level with science subjects, for the period 2010-2013 and thereafter, after July 2016. For all other periods, the basic educational qualification of intermediate or equivalent pass with a mandatory science stream qualification, remained an essential condition. Therefore, the argument that the state was bound by the standards it specified (in the advertisement which had omitted any mention as to the educational qualification of intermediate with science) did not relieve the state from the obligation of enforcing statutory rules. It is too late in the day to assert that any kind of estoppel can operate against the state to compel it to give effect to a promise contrary to law or prevailing rules that have statutory force. All arguments to this effect on the part of the appellants are therefore rejected. Furthermore, it is useful to recollect that the eligibility of a candidate or applicant for a public post or service, is to be adjudged as on the last date of receipt of applications for such post or service, in terms of the relevant advertisement, and the prevailing service rules. This position is recognized by settled authority; in Ashok Kumar Sharma v. Chander Shekhar (1997) 4 SCC 18 a three-judge bench of this court ruled, in this context that: 6. The proposition that where applications are called for prescribing a particular date as the last date for filing the applications, the eligibility of the candidates shall have to be judged with reference to that date and that date alone, is a well-established one. A person who acquires the prescribed qualification subsequent to such prescribed date cannot be considered at all. An advertisement or notification issued/published calling for applications constitutes a representation to the public and the authority issuing it is bound by such representation. It cannot act contrary to it. 30. In regard to the argument that the statutory rules framed by the erstwhile State of UP as applicable to the State of Uttarakhand, were contrary to the provisions of the INC Act, this court holds the submission to be insubstantial and unmerited. The objective of the INC Act - as indeed its provisions testify - are to set up a central council, i.e. the Nursing Council, committed to evolving uniform standards for nursing education in the country, and to provide for recognition of degrees and qualifications of institutions and courses that cater to nursing. In the discharge of its functions, the INC has prescribed a mandatory ANM course with a minimum training requirement. It is undisputed that all the appellants did undergo, at various points in time, education and training from such recognized institutions. However, that is not the end of the matter. The state in its legitimate role as a public employer, is empowered by virtue of the proviso to Article 309 of the Constitution of India, to frame appropriate rules. These rules can prescribe conditions of service for various posts, classes of posts, and services under the state. The conditions may include a minimum educational qualification which the state deems appropriate for a candidate to possess before he or she can compete for a particular post at the stage of recruitment. That the INC Act allows the council to prescribe standards for education, which it legitimately exercises for the purposes of recognizing nursing courses, in no way detracts or undermines the authority of the state to prescribe other eligibility conditions which candidates can and should possess as a condition precedent for recruitment purposes, in the exercise of its power under the proviso to Article 309 of the Constitution. As held in Sanjay Kumar Manjul v. UPSC (2006) 8 SCC 42. 25. The statutory authority is entitled to frame the statutory rules laying down the terms and conditions of service as also the qualifications essential for holding a particular post. It is only the authority concerned which can take ultimate decision therefore. **** **** **** **** 26. The jurisdiction of the superior courts, it is a trite law, would be to interpret the rule and not to supplant or supplement the same. 31. Therefore, this court perceives no conflict between the provisions of the INC Act and the recruitment rules which were in force in the state of Uttarakhand from the time of its creation in 2000, till 2016 when the rules were changed after the advertisement in question for the recruitments was issued, which this court is now called upon to adjudicate. 32. Turning to the appellants argument regarding their right to be appointed according to batch wise seniority, it is noticeable that by Rule 5 of the old 1997 Rules, as amended, as well as in the 2016 Rules, there is no automatic recruitment; the post of Health Worker/ANM is to be filled by direct recruitment; the selection procedure is as contemplated by Rule 15 (as was the case under the old rules), whereby a three member selection committee would recommend for selection, having due regard to the year-wise allocation of vacancies, persons eligible for appointment, having regard to the qualifications held by them, by batch-wise seniority (in the concerned ANM course with the dates on which training is completed). This mode of selection does not eliminate the requirement of the rule prescribing essential qualifications; nor does it relieve any candidate from the obligation to apply for the post and face the scrutiny of the committee, for her candidature. In the present case, 440 vacancies were advertised; they were to be considered together; obviously, in respect of older vacancies which arose for previous years, the qualifications applicable for the vacancy years were applicable. None of the appellants disputed that they were ineligible in terms of the old rules, as they did not hold the requisite intermediate qualifications in the science stream. The appellants contention, in this regard too, consequently fails. | 0[ds]26. From the above factual narration, it is evident that in the present case, before the formation of the state of Uttarakhand, rules which governed recruitment and other conditions of service in relation to health workers and ANMs had been framed by the erstwhile state of Uttar Pradesh. Those rules were amended in 1998; the result of the amendment to the existing rules was that minimum qualifications of intermediate or equivalent (10+2 from a recognized board) in the science stream were essential for recruitment and appointment to the cadre of Female Health Workers and ANMs. Every candidate of course should have completed the ANM course with the mandatory training; nevertheless, the educational qualification of having completed intermediate, in science, was essential. This court finds no merit in the submission of the appellants that the requirement of an intermediate in science stream did not exist, since the adaptation order under the Reorganization Act omitted to mention the rules framed by the erstwhile state of UP.28. A comprehensive reading of the provisions of the Reorganization Act would show that the laws in force in the erstwhile state of UP continued to remain operative upon the creation of the new state of Uttarakhand. Section 87 only had the effect of obliging the state and the courts to thereafter enforce the existing laws, to the extent they were modified within a period of 2 years from the date of commencement of the Reorganization Act. If the appellants are correct, the mere omission of a law or regulation in the adaptation order, would have the disastrous effect of creating a vacuum in regard to existing laws that are not specifically mentioned. In other words, the power to adapt only meant that such laws which required some modifications or adaptations, could be so modified or adapted within the period defined, i.e., 2 years. In the absence of any such exercise of adaptation or modification, all the laws, rules, regulations and statutory orders that were in force in the state of UP applied without any change.29. This court holds to be unmerited, the arguments of the appellant that the state was bound by the criteria specified in the advertisement issued by it in March 2016, even though Clause 7 of that notification clearly specified that the recruitments for ANMs would be in accordance with the statutory rules. The omission to mention the relevant qualifications (i.e. intermediate or equivalent qualification with the science stream) did not relieve the state from its obligation to follow existing rules. It has not been disputed that the 1997 Rules, after amendment in 1998, mandated that candidates desirous of being recruited as ANM or Health Workers had to possess educational qualifications including Intermediate pass (or its equivalent) with the science stream, apart from the necessary ANM certificate course. That condition remained unchanged even after the creation of the State of Uttarakhand. It was only in 2016, after the advertisement for the concerned recruitment was published, that the rules were changed; the changed new rules relieved the requirement of having to qualify the Intermediate level with science subjects, for the period 2010-2013 and thereafter, after July 2016. For all other periods, the basic educational qualification of intermediate or equivalent pass with a mandatory science stream qualification, remained an essential condition. Therefore, the argument that the state was bound by the standards it specified (in the advertisement which had omitted any mention as to the educational qualification of intermediate with science) did not relieve the state from the obligation of enforcing statutory rules. It is too late in the day to assert that any kind of estoppel can operate against the state to compel it to give effect to a promise contrary to law or prevailing rules that have statutory force. All arguments to this effect on the part of the appellants are therefore rejected. Furthermore, it is useful to recollect that the eligibility of a candidate or applicant for a public post or service, is to be adjudged as on the last date of receipt of applications for such post or service, in terms of the relevant advertisement, and the prevailing service rules. This position is recognized by settled authority; in Ashok Kumar Sharma v. Chander Shekhar (1997) 4 SCC 18 a three-judge bench of this court ruled, in this context that:6. The proposition that where applications are called for prescribing a particular date as the last date for filing the applications, the eligibility of the candidates shall have to be judged with reference to that date and that date alone, is a well-established one. A person who acquires the prescribed qualification subsequent to such prescribed date cannot be considered at all. An advertisement or notification issued/published calling for applications constitutes a representation to the public and the authority issuing it is bound by such representation. It cannot act contrary to it.30. In regard to the argument that the statutory rules framed by the erstwhile State of UP as applicable to the State of Uttarakhand, were contrary to the provisions of the INC Act, this court holds the submission to be insubstantial and unmerited. The objective of the INC Act - as indeed its provisions testify - are to set up a central council, i.e. the Nursing Council, committed to evolving uniform standards for nursing education in the country, and to provide for recognition of degrees and qualifications of institutions and courses that cater to nursing. In the discharge of its functions, the INC has prescribed a mandatory ANM course with a minimum training requirement. It is undisputed that all the appellants did undergo, at various points in time, education and training from such recognized institutions. However, that is not the end of the matter. The state in its legitimate role as a public employer, is empowered by virtue of the proviso to Article 309 of the Constitution of India, to frame appropriate rules. These rules can prescribe conditions of service for various posts, classes of posts, and services under the state. The conditions may include a minimum educational qualification which the state deems appropriate for a candidate to possess before he or she can compete for a particular post at the stage of recruitment. That the INC Act allows the council to prescribe standards for education, which it legitimately exercises for the purposes of recognizing nursing courses, in no way detracts or undermines the authority of the state to prescribe other eligibility conditions which candidates can and should possess as a condition precedent for recruitment purposes, in the exercise of its power under the proviso to Article 309 of the Constitution. As held in Sanjay Kumar Manjul v. UPSC (2006) 8 SCC 42. 25. The statutory authority is entitled to frame the statutory rules laying down the terms and conditions of service as also the qualifications essential for holding a particular post. It is only the authority concerned which can take ultimate decision therefore.**** **** **** ****26. The jurisdiction of the superior courts, it is a trite law, would be to interpret the rule and not to supplant or supplement the same.31. Therefore, this court perceives no conflict between the provisions of the INC Act and the recruitment rules which were in force in the state of Uttarakhand from the time of its creation in 2000, till 2016 when the rules were changed after the advertisement in question for the recruitments was issued, which this court is now called upon to adjudicate.32. Turning to the appellants argument regarding their right to be appointed according to batch wise seniority, it is noticeable that by Rule 5 of the old 1997 Rules, as amended, as well as in the 2016 Rules, there is no automatic recruitment; the post of Health Worker/ANM is to be filled by direct recruitment; the selection procedure is as contemplated by Rule 15 (as was the case under the old rules), whereby a three member selection committee would recommend for selection, having due regard to the year-wise allocation of vacancies, persons eligible for appointment, having regard to the qualifications held by them, by batch-wise seniority (in the concerned ANM course with the dates on which training is completed). This mode of selection does not eliminate the requirement of the rule prescribing essential qualifications; nor does it relieve any candidate from the obligation to apply for the post and face the scrutiny of the committee, for her candidature. In the present case, 440 vacancies were advertised; they were to be considered together; obviously, in respect of older vacancies which arose for previous years, the qualifications applicable for the vacancy years were applicable. None of the appellants disputed that they were ineligible in terms of the old rules, as they did not hold the requisite intermediate qualifications in the science stream. The appellants contention, in this regard too, consequently fails. | 0 | 5,838 | 1,633 | ### Instruction:
Forecast the likely verdict of the case (granting (1) or denying (0) the appeal) and then rationalize your prediction by pinpointing and explaining pivotal sentences in the case document.
### Input:
of the State of Uttarakhand. It was only in 2016, after the advertisement for the concerned recruitment was published, that the rules were changed; the changed new rules relieved the requirement of having to qualify the Intermediate level with science subjects, for the period 2010-2013 and thereafter, after July 2016. For all other periods, the basic educational qualification of intermediate or equivalent pass with a mandatory science stream qualification, remained an essential condition. Therefore, the argument that the state was bound by the standards it specified (in the advertisement which had omitted any mention as to the educational qualification of intermediate with science) did not relieve the state from the obligation of enforcing statutory rules. It is too late in the day to assert that any kind of estoppel can operate against the state to compel it to give effect to a promise contrary to law or prevailing rules that have statutory force. All arguments to this effect on the part of the appellants are therefore rejected. Furthermore, it is useful to recollect that the eligibility of a candidate or applicant for a public post or service, is to be adjudged as on the last date of receipt of applications for such post or service, in terms of the relevant advertisement, and the prevailing service rules. This position is recognized by settled authority; in Ashok Kumar Sharma v. Chander Shekhar (1997) 4 SCC 18 a three-judge bench of this court ruled, in this context that: 6. The proposition that where applications are called for prescribing a particular date as the last date for filing the applications, the eligibility of the candidates shall have to be judged with reference to that date and that date alone, is a well-established one. A person who acquires the prescribed qualification subsequent to such prescribed date cannot be considered at all. An advertisement or notification issued/published calling for applications constitutes a representation to the public and the authority issuing it is bound by such representation. It cannot act contrary to it. 30. In regard to the argument that the statutory rules framed by the erstwhile State of UP as applicable to the State of Uttarakhand, were contrary to the provisions of the INC Act, this court holds the submission to be insubstantial and unmerited. The objective of the INC Act - as indeed its provisions testify - are to set up a central council, i.e. the Nursing Council, committed to evolving uniform standards for nursing education in the country, and to provide for recognition of degrees and qualifications of institutions and courses that cater to nursing. In the discharge of its functions, the INC has prescribed a mandatory ANM course with a minimum training requirement. It is undisputed that all the appellants did undergo, at various points in time, education and training from such recognized institutions. However, that is not the end of the matter. The state in its legitimate role as a public employer, is empowered by virtue of the proviso to Article 309 of the Constitution of India, to frame appropriate rules. These rules can prescribe conditions of service for various posts, classes of posts, and services under the state. The conditions may include a minimum educational qualification which the state deems appropriate for a candidate to possess before he or she can compete for a particular post at the stage of recruitment. That the INC Act allows the council to prescribe standards for education, which it legitimately exercises for the purposes of recognizing nursing courses, in no way detracts or undermines the authority of the state to prescribe other eligibility conditions which candidates can and should possess as a condition precedent for recruitment purposes, in the exercise of its power under the proviso to Article 309 of the Constitution. As held in Sanjay Kumar Manjul v. UPSC (2006) 8 SCC 42. 25. The statutory authority is entitled to frame the statutory rules laying down the terms and conditions of service as also the qualifications essential for holding a particular post. It is only the authority concerned which can take ultimate decision therefore. **** **** **** **** 26. The jurisdiction of the superior courts, it is a trite law, would be to interpret the rule and not to supplant or supplement the same. 31. Therefore, this court perceives no conflict between the provisions of the INC Act and the recruitment rules which were in force in the state of Uttarakhand from the time of its creation in 2000, till 2016 when the rules were changed after the advertisement in question for the recruitments was issued, which this court is now called upon to adjudicate. 32. Turning to the appellants argument regarding their right to be appointed according to batch wise seniority, it is noticeable that by Rule 5 of the old 1997 Rules, as amended, as well as in the 2016 Rules, there is no automatic recruitment; the post of Health Worker/ANM is to be filled by direct recruitment; the selection procedure is as contemplated by Rule 15 (as was the case under the old rules), whereby a three member selection committee would recommend for selection, having due regard to the year-wise allocation of vacancies, persons eligible for appointment, having regard to the qualifications held by them, by batch-wise seniority (in the concerned ANM course with the dates on which training is completed). This mode of selection does not eliminate the requirement of the rule prescribing essential qualifications; nor does it relieve any candidate from the obligation to apply for the post and face the scrutiny of the committee, for her candidature. In the present case, 440 vacancies were advertised; they were to be considered together; obviously, in respect of older vacancies which arose for previous years, the qualifications applicable for the vacancy years were applicable. None of the appellants disputed that they were ineligible in terms of the old rules, as they did not hold the requisite intermediate qualifications in the science stream. The appellants contention, in this regard too, consequently fails.
### Response:
0
### Explanation:
even after the creation of the State of Uttarakhand. It was only in 2016, after the advertisement for the concerned recruitment was published, that the rules were changed; the changed new rules relieved the requirement of having to qualify the Intermediate level with science subjects, for the period 2010-2013 and thereafter, after July 2016. For all other periods, the basic educational qualification of intermediate or equivalent pass with a mandatory science stream qualification, remained an essential condition. Therefore, the argument that the state was bound by the standards it specified (in the advertisement which had omitted any mention as to the educational qualification of intermediate with science) did not relieve the state from the obligation of enforcing statutory rules. It is too late in the day to assert that any kind of estoppel can operate against the state to compel it to give effect to a promise contrary to law or prevailing rules that have statutory force. All arguments to this effect on the part of the appellants are therefore rejected. Furthermore, it is useful to recollect that the eligibility of a candidate or applicant for a public post or service, is to be adjudged as on the last date of receipt of applications for such post or service, in terms of the relevant advertisement, and the prevailing service rules. This position is recognized by settled authority; in Ashok Kumar Sharma v. Chander Shekhar (1997) 4 SCC 18 a three-judge bench of this court ruled, in this context that:6. The proposition that where applications are called for prescribing a particular date as the last date for filing the applications, the eligibility of the candidates shall have to be judged with reference to that date and that date alone, is a well-established one. A person who acquires the prescribed qualification subsequent to such prescribed date cannot be considered at all. An advertisement or notification issued/published calling for applications constitutes a representation to the public and the authority issuing it is bound by such representation. It cannot act contrary to it.30. In regard to the argument that the statutory rules framed by the erstwhile State of UP as applicable to the State of Uttarakhand, were contrary to the provisions of the INC Act, this court holds the submission to be insubstantial and unmerited. The objective of the INC Act - as indeed its provisions testify - are to set up a central council, i.e. the Nursing Council, committed to evolving uniform standards for nursing education in the country, and to provide for recognition of degrees and qualifications of institutions and courses that cater to nursing. In the discharge of its functions, the INC has prescribed a mandatory ANM course with a minimum training requirement. It is undisputed that all the appellants did undergo, at various points in time, education and training from such recognized institutions. However, that is not the end of the matter. The state in its legitimate role as a public employer, is empowered by virtue of the proviso to Article 309 of the Constitution of India, to frame appropriate rules. These rules can prescribe conditions of service for various posts, classes of posts, and services under the state. The conditions may include a minimum educational qualification which the state deems appropriate for a candidate to possess before he or she can compete for a particular post at the stage of recruitment. That the INC Act allows the council to prescribe standards for education, which it legitimately exercises for the purposes of recognizing nursing courses, in no way detracts or undermines the authority of the state to prescribe other eligibility conditions which candidates can and should possess as a condition precedent for recruitment purposes, in the exercise of its power under the proviso to Article 309 of the Constitution. As held in Sanjay Kumar Manjul v. UPSC (2006) 8 SCC 42. 25. The statutory authority is entitled to frame the statutory rules laying down the terms and conditions of service as also the qualifications essential for holding a particular post. It is only the authority concerned which can take ultimate decision therefore.**** **** **** ****26. The jurisdiction of the superior courts, it is a trite law, would be to interpret the rule and not to supplant or supplement the same.31. Therefore, this court perceives no conflict between the provisions of the INC Act and the recruitment rules which were in force in the state of Uttarakhand from the time of its creation in 2000, till 2016 when the rules were changed after the advertisement in question for the recruitments was issued, which this court is now called upon to adjudicate.32. Turning to the appellants argument regarding their right to be appointed according to batch wise seniority, it is noticeable that by Rule 5 of the old 1997 Rules, as amended, as well as in the 2016 Rules, there is no automatic recruitment; the post of Health Worker/ANM is to be filled by direct recruitment; the selection procedure is as contemplated by Rule 15 (as was the case under the old rules), whereby a three member selection committee would recommend for selection, having due regard to the year-wise allocation of vacancies, persons eligible for appointment, having regard to the qualifications held by them, by batch-wise seniority (in the concerned ANM course with the dates on which training is completed). This mode of selection does not eliminate the requirement of the rule prescribing essential qualifications; nor does it relieve any candidate from the obligation to apply for the post and face the scrutiny of the committee, for her candidature. In the present case, 440 vacancies were advertised; they were to be considered together; obviously, in respect of older vacancies which arose for previous years, the qualifications applicable for the vacancy years were applicable. None of the appellants disputed that they were ineligible in terms of the old rules, as they did not hold the requisite intermediate qualifications in the science stream. The appellants contention, in this regard too, consequently fails.
|
Seth Loon Karan Sethiya Vs. Ivan E. John | equitable assignment of the amount due under the decree or so much of that amount as is necessary for discharging the debts due to it. That rule is recognised in Watson v. Duke of Wellington, (1880) 39 ER 231. Therein the plaintiff, executors of Mr. Sims, had advanced a large sum of money to Marquis of Hastings on the joint bond of the Marquis and a surety. The sum due on the bond exceeded 9,000. Towards the end of 1825, the Marquis having returned from India to England, the plaintiffs made repeated applications to him for payment of the debt. The Marquis represented that he was about to receive a large share of the Deccan prize-money; promised that their demand should be paid out of that fund; and begged that, in the meantime, no proceedings might be taken against him or the assets of his surety. On February 6, 1826, Mr. Allen, the solicitor of the plaintiff, again waited on the Marquis, who then stated that he had directed Col. Francis Doyle, whom he had empowered to receive his share of the prize-money, to pay the debt and costs due to the executors of Mr. Sims; and at the same time the Marquis wrote and delivered to Mr. Allen a letter addressed to Col. Doyle directing him that the executors of Mr. Sims were claimants on that fund for a bond debt with interest. From these facts the Court of Chancery came to the conclusion that there was an equitable assignment in favour of the executors of Mr. Sims of a portion of the prize-money sufficient to meet the debts due to the estate of Mr. Sims by the Duke of Wellington. To the same effect is the decision in Burn v. Carvalho, (1839) 41 ER 265. Therein the Court of Chancery held that in equity, an order given by a debtor to his creditor upon a third person having the assets of the debtor to pay the creditor out of such fund is a binding equitable assignment of so much of the fund.8. The courts in India, which administer both law as well as equity, have followed the rule laid down in the above decisions. In this connection reference may be made to the decision of the Bombay High Court in Jagabhai Lallubhai v. Rustamji Nasarwanji, (1885) ILR 9 Bom 311, and of the Patna High Court in Prahlad Pd. Modi v. Tikaitni Faldani Kumari, AIR 1956 Pat 233 . In the latter case, the Patna High Court held that a transaction similar to the one we are concerned in this case, in substance amounted to allocation of fund to be appropriated towards the debt and therefore it is an equitable assignment. No decision taking a contrary view has been brought to our notice. We think that the rule laid down in the above decisions is a sound rule as it advances the interest of justice. We accordingly adopt that rule.9. There was great deal of controversy as to whether on the strength of the equitable assignment in its favour, the Bank could execute the decree, even when the decree-holder (appellant) does not want that it should be executed.Shri Chagla argued that an executing court cannot go behind the decree; it has to execute the decree as it stands; so far as that court is concerned, the only person who can execute the decree is he whose name is shown in the decree as the judgment-creditor; unless the decree has been transferred, and the transfer in question recognised under Order 21, Rule 16 of the Code of Civil Procedure, the court has no power to execute the decree when the judgment creditor does not want it to be executed. He urged that as the decree was not transferred to the Bank either in writing or by operation of law, nor was there any recognition by court of such a transfer, the Bank was incompetent to execute the decree in its own right. He was emphatic that the only method by which an assignee of a decree can execute the decree is by having recourse to Order 21, Rule 16. As the Bank cannot avail of that provision the execution cannot be proceeded with. In support of those contentions Shri Chagla invited our attention to various decisions. It is not necessary for us to go into those controversies in view of the decision of this Court in Jugulkishore Saraf, (1955) 1 SCR 1369 = (AIR 1955 SC 376 ). Therein this Court held that an equitable assignee of a decree who cannot have the benefit of Order 21, Rule 16 can still execute the decree under S. 146 of the Code of Civil Procedure. Shri Chagla contested the correctness of that decision and desired that the question of law should be reconsidered by a larger Bench. We are bound by that decision and no compelling circumstances were made out for its reconsideration.10. It is true that the execution application shows that the applicant is the appellant and the Bank is merely acting as his agent. In other words, the Bank did not purport to execute the decree in its own name or in exercise of its own right. When the execution application was filed, there was no dispute between the appellant and the Bank. Hence the Bank levied execution of the decree in the name of the appellant as provided in the power of attorney. The controversy between the parties arose during the pendency of the execution. It is only thereafter that it became necessary for the Bank to assert its own right. It serves no useful purpose to direct the present application to be closed merely because it was made in the name of the appellant. In view of our earlier conclusions it will be still open to the Bank to levy fresh execution of the decree. It will be in the interest of the appellant as well as the Bank to allow the present application to go on. | 0[ds]We are unable to spell out the meaning of these observations. It is seen from the grounds of appeal filed before the High Court that the appellant had contendedthere being no transfer or assignment of the decree in its (Banks) favour, the Bank of Jaipur Limited, had no legal right or locus standi to execute the decree and the executing court had no jurisdiction to entertain the execution application and to continue the executionhad also contended that the execution court cannot go behind the decree, and the execution case must proceed according to the provisions in the Code of Civil Procedure. Obviously the contention of the appellant was that as the decree stood in his name, his agent cannot proceed with its execution as he desired to take into his own hands the execution proceedings. The above contentions of the appellant were purely legal contentions; if they are valid, they go to the root of the matter and therefore the High Court was not right in brushing aside those contentions on the ground that those contentions had not been taken in the pleadings or urged before the executingof the questions presented for decision are not free from difficulty. But it is not necessary for us to pronounce on those questions as we are of the opinion that the power of attorney in question is a power coupled with interest, and hence the same is not revocable. Further, the transaction entered into under that document amounts to an equitable assignment of the decree in favour of the Bank to the extent necessary to discharge appellants debts to the Bank and on the basis of the rule laid down by this Court in Jugulkishore Saraf v. Raw Cotton Co. Ltd., (1955) 1 SCR 1369 = (AIR 1955 SC 376 ), it is open to the Bank to execute the decree in its own right. Lastly, we attach no importance to the form of the execution, which form was necessitated because of the terms of the power of attorney, looking to the substance of the matter and not being unduly weighed down by the form, we are of opinion that the Bank has been executing the decree in its own right. We shall elaborate our reasons in support of these conclusions presently. In view of our above conclusion we have not thought it necessary to go into the other questions of law raised at the hearing.5. There is hardly any doubt that the given by the appellant in favour of the Bank is a power coupled with interest. That is clear both from the tenor of the document as well as from its terms. S. 202 of the Contract Act provides that where the agent has himself an interest in the property which forms theof the agency the agency Cannot, in the absence of an express contract, be terminated to the prejudice of such interest. It is settled law that where the agency is created for valuable consideration and authority is given to effectuate a security or to secure interest of the agent, the authority cannot be revoked. The document itself says that the power given to the Bank is irrevocable. It must be said in fairness to Shri Chagla that he did not contest the finding of the High Court that the power in question wasthose terms it is not possible to come to the conclusion that there was any transfer of the interest of the appellant in the decree to the Bank. In that document there are no words of transfer. The document specifically says that the Bank should execute the decree on behalf of the appellant. As per the terms of the document the appellant continues to be the owner of the amount due under the decree, the Bank was merely authorised to act as his agent; and therefore it is not possible to hold that in law the Bank was an assignee of the decree, The interest of the appellant under the decree cannot be said to have been transferred to the Bank either in writing or by operation ofthe power of it attorney it is clear that the amount under the decree was specifically earmarked for discharge of the debts due to the Bank. It was constituted as a special fund for the said purpose. The power to realise that fund was made over to the Bank with the further authority to set off the amount realised towards the debts due to it. In other words, the power of attorney is an engagement to pay out of the particular fund the debt due to the Bank and hence the same constitutes an equitable assignment of the amount due under the decree or so much of that amount as is necessary for discharging the debts due to it.8. The courts in India, which administer both law as well as equity, have followed the rule laid down in the above decisions. In this connection reference may be made to the decision of the Bombay High Court in Jagabhai Lallubhai v. Rustamji Nasarwanji, (1885) ILR 9 Bom 311, and of the Patna High Court in Prahlad Pd. Modi v. Tikaitni Faldani Kumari, AIR 1956 Pat 233 . In the latter case, the Patna High Court held that a transaction similar to the one we are concerned in this case, in substance amounted to allocation of fund to be appropriated towards the debt and therefore it is an equitable assignment. No decision taking a contrary view has been brought to our notice. We think that the rule laid down in the above decisions is a sound rule as it advances the interest of justice. We accordingly adopt thatsupport of those contentions Shri Chagla invited our attention to various decisions.It is not necessary for us to go into those controversies in view of the decision of this Court in Jugulkishore Saraf, (1955) 1 SCR 1369 = (AIR 1955 SC 376 ). Therein this Court held that an equitable assignee of a decree who cannot have the benefit of Order 21, Rule 16 can still execute the decree under S. 146 of the Code of Civil Procedure. Shri Chagla contested the correctness of that decision and desired that the question of law should be reconsidered by a larger Bench. We are bound by that decision and no compelling circumstances were made out for its reconsideration.10. It is true that the execution application shows that the applicant is the appellant and the Bank is merely acting as his agent. In other words, the Bank did not purport to execute the decree in its own name or in exercise of its own right. When the execution application was filed, there was no dispute between the appellant and the Bank. Hence the Bank levied execution of the decree in the name of the appellant as provided in the power of attorney. The controversy between the parties arose during the pendency of the execution. It is only thereafter that it became necessary for the Bank to assert its own right. It serves no useful purpose to direct the present application to be closed merely because it was made in the name of the appellant. In view of our earlier conclusions it will be still open to the Bank to levy fresh execution of the decree. It will be in the interest of the appellant as well as the Bank to allow the present application to go on. | 0 | 3,146 | 1,330 | ### 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:
equitable assignment of the amount due under the decree or so much of that amount as is necessary for discharging the debts due to it. That rule is recognised in Watson v. Duke of Wellington, (1880) 39 ER 231. Therein the plaintiff, executors of Mr. Sims, had advanced a large sum of money to Marquis of Hastings on the joint bond of the Marquis and a surety. The sum due on the bond exceeded 9,000. Towards the end of 1825, the Marquis having returned from India to England, the plaintiffs made repeated applications to him for payment of the debt. The Marquis represented that he was about to receive a large share of the Deccan prize-money; promised that their demand should be paid out of that fund; and begged that, in the meantime, no proceedings might be taken against him or the assets of his surety. On February 6, 1826, Mr. Allen, the solicitor of the plaintiff, again waited on the Marquis, who then stated that he had directed Col. Francis Doyle, whom he had empowered to receive his share of the prize-money, to pay the debt and costs due to the executors of Mr. Sims; and at the same time the Marquis wrote and delivered to Mr. Allen a letter addressed to Col. Doyle directing him that the executors of Mr. Sims were claimants on that fund for a bond debt with interest. From these facts the Court of Chancery came to the conclusion that there was an equitable assignment in favour of the executors of Mr. Sims of a portion of the prize-money sufficient to meet the debts due to the estate of Mr. Sims by the Duke of Wellington. To the same effect is the decision in Burn v. Carvalho, (1839) 41 ER 265. Therein the Court of Chancery held that in equity, an order given by a debtor to his creditor upon a third person having the assets of the debtor to pay the creditor out of such fund is a binding equitable assignment of so much of the fund.8. The courts in India, which administer both law as well as equity, have followed the rule laid down in the above decisions. In this connection reference may be made to the decision of the Bombay High Court in Jagabhai Lallubhai v. Rustamji Nasarwanji, (1885) ILR 9 Bom 311, and of the Patna High Court in Prahlad Pd. Modi v. Tikaitni Faldani Kumari, AIR 1956 Pat 233 . In the latter case, the Patna High Court held that a transaction similar to the one we are concerned in this case, in substance amounted to allocation of fund to be appropriated towards the debt and therefore it is an equitable assignment. No decision taking a contrary view has been brought to our notice. We think that the rule laid down in the above decisions is a sound rule as it advances the interest of justice. We accordingly adopt that rule.9. There was great deal of controversy as to whether on the strength of the equitable assignment in its favour, the Bank could execute the decree, even when the decree-holder (appellant) does not want that it should be executed.Shri Chagla argued that an executing court cannot go behind the decree; it has to execute the decree as it stands; so far as that court is concerned, the only person who can execute the decree is he whose name is shown in the decree as the judgment-creditor; unless the decree has been transferred, and the transfer in question recognised under Order 21, Rule 16 of the Code of Civil Procedure, the court has no power to execute the decree when the judgment creditor does not want it to be executed. He urged that as the decree was not transferred to the Bank either in writing or by operation of law, nor was there any recognition by court of such a transfer, the Bank was incompetent to execute the decree in its own right. He was emphatic that the only method by which an assignee of a decree can execute the decree is by having recourse to Order 21, Rule 16. As the Bank cannot avail of that provision the execution cannot be proceeded with. In support of those contentions Shri Chagla invited our attention to various decisions. It is not necessary for us to go into those controversies in view of the decision of this Court in Jugulkishore Saraf, (1955) 1 SCR 1369 = (AIR 1955 SC 376 ). Therein this Court held that an equitable assignee of a decree who cannot have the benefit of Order 21, Rule 16 can still execute the decree under S. 146 of the Code of Civil Procedure. Shri Chagla contested the correctness of that decision and desired that the question of law should be reconsidered by a larger Bench. We are bound by that decision and no compelling circumstances were made out for its reconsideration.10. It is true that the execution application shows that the applicant is the appellant and the Bank is merely acting as his agent. In other words, the Bank did not purport to execute the decree in its own name or in exercise of its own right. When the execution application was filed, there was no dispute between the appellant and the Bank. Hence the Bank levied execution of the decree in the name of the appellant as provided in the power of attorney. The controversy between the parties arose during the pendency of the execution. It is only thereafter that it became necessary for the Bank to assert its own right. It serves no useful purpose to direct the present application to be closed merely because it was made in the name of the appellant. In view of our earlier conclusions it will be still open to the Bank to levy fresh execution of the decree. It will be in the interest of the appellant as well as the Bank to allow the present application to go on.
### Response:
0
### Explanation:
decree in favour of the Bank to the extent necessary to discharge appellants debts to the Bank and on the basis of the rule laid down by this Court in Jugulkishore Saraf v. Raw Cotton Co. Ltd., (1955) 1 SCR 1369 = (AIR 1955 SC 376 ), it is open to the Bank to execute the decree in its own right. Lastly, we attach no importance to the form of the execution, which form was necessitated because of the terms of the power of attorney, looking to the substance of the matter and not being unduly weighed down by the form, we are of opinion that the Bank has been executing the decree in its own right. We shall elaborate our reasons in support of these conclusions presently. In view of our above conclusion we have not thought it necessary to go into the other questions of law raised at the hearing.5. There is hardly any doubt that the given by the appellant in favour of the Bank is a power coupled with interest. That is clear both from the tenor of the document as well as from its terms. S. 202 of the Contract Act provides that where the agent has himself an interest in the property which forms theof the agency the agency Cannot, in the absence of an express contract, be terminated to the prejudice of such interest. It is settled law that where the agency is created for valuable consideration and authority is given to effectuate a security or to secure interest of the agent, the authority cannot be revoked. The document itself says that the power given to the Bank is irrevocable. It must be said in fairness to Shri Chagla that he did not contest the finding of the High Court that the power in question wasthose terms it is not possible to come to the conclusion that there was any transfer of the interest of the appellant in the decree to the Bank. In that document there are no words of transfer. The document specifically says that the Bank should execute the decree on behalf of the appellant. As per the terms of the document the appellant continues to be the owner of the amount due under the decree, the Bank was merely authorised to act as his agent; and therefore it is not possible to hold that in law the Bank was an assignee of the decree, The interest of the appellant under the decree cannot be said to have been transferred to the Bank either in writing or by operation ofthe power of it attorney it is clear that the amount under the decree was specifically earmarked for discharge of the debts due to the Bank. It was constituted as a special fund for the said purpose. The power to realise that fund was made over to the Bank with the further authority to set off the amount realised towards the debts due to it. In other words, the power of attorney is an engagement to pay out of the particular fund the debt due to the Bank and hence the same constitutes an equitable assignment of the amount due under the decree or so much of that amount as is necessary for discharging the debts due to it.8. The courts in India, which administer both law as well as equity, have followed the rule laid down in the above decisions. In this connection reference may be made to the decision of the Bombay High Court in Jagabhai Lallubhai v. Rustamji Nasarwanji, (1885) ILR 9 Bom 311, and of the Patna High Court in Prahlad Pd. Modi v. Tikaitni Faldani Kumari, AIR 1956 Pat 233 . In the latter case, the Patna High Court held that a transaction similar to the one we are concerned in this case, in substance amounted to allocation of fund to be appropriated towards the debt and therefore it is an equitable assignment. No decision taking a contrary view has been brought to our notice. We think that the rule laid down in the above decisions is a sound rule as it advances the interest of justice. We accordingly adopt thatsupport of those contentions Shri Chagla invited our attention to various decisions.It is not necessary for us to go into those controversies in view of the decision of this Court in Jugulkishore Saraf, (1955) 1 SCR 1369 = (AIR 1955 SC 376 ). Therein this Court held that an equitable assignee of a decree who cannot have the benefit of Order 21, Rule 16 can still execute the decree under S. 146 of the Code of Civil Procedure. Shri Chagla contested the correctness of that decision and desired that the question of law should be reconsidered by a larger Bench. We are bound by that decision and no compelling circumstances were made out for its reconsideration.10. It is true that the execution application shows that the applicant is the appellant and the Bank is merely acting as his agent. In other words, the Bank did not purport to execute the decree in its own name or in exercise of its own right. When the execution application was filed, there was no dispute between the appellant and the Bank. Hence the Bank levied execution of the decree in the name of the appellant as provided in the power of attorney. The controversy between the parties arose during the pendency of the execution. It is only thereafter that it became necessary for the Bank to assert its own right. It serves no useful purpose to direct the present application to be closed merely because it was made in the name of the appellant. In view of our earlier conclusions it will be still open to the Bank to levy fresh execution of the decree. It will be in the interest of the appellant as well as the Bank to allow the present application to go on.
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Sanjay @ Kaka etc. etc Vs. The State | India was engraved, one lady set of silver, 8 wrist watches, 4 cameras, 1 electric shaver, 5 sarees, 20 suit-pieces, 6 gents suit-pieces, stitched shirt, two big bags of leather and one small bag. She has again stated that after the recovery of the property from the accused persons she identified the articles and found them to be belonging to her mother, which were stolen on the day of her murder. We do not agree with the Counsel for the appellants that the recovery of the articles had preceded the making of the disclosure statements.29. Learned Counsel appearing for the appellants Sanjay and Nawabuddin then submitted that even if the disclosure statements and, the recoveries are admitted, their clients can at the most be convicted for the commission of offence under Section 411, IPC. We do not agree with this submission as well in view of the fact that the murder and robbery in the instant case were part of the same transaction and the accused from whom the recoveries were made, consequent upon their disclosure statements, did not offer any explanation regarding their possession of the stolen properties. Drawing a presumption under Section 114 of the Evidence Act it can safely be held that the aforesaid two accused persons were atleast guilty of the offence of robbery punishable under Section 392, IPC on the assumption that they were not armed with any deadly weapon and not aware of Vinod appellant being armed with dagger. The Trial Court was, therefore, justified in holding that "the circumstances enumerated above together complete the chain of circumstances to prove the guilt of the accused persons insofar as the offence of robbery is concerned. In fact the disclosure statements of the accused persons and huge recoveries from them at their instance by itself is a sufficient circumstance on the very next day of the incident which clearly goes to show that the accused persons had joined hands to commit the offence of robbery". The Court also rightly held that, "Recent and unexplained possession of stolen properties will be taken to be presumptive evidence of the charge of murder as well. (See Baijurv.State of Madhya Pradesh ,AIR 1978 SC Page 522). Also see Eara Bhadrappas case (supra). In the case of the GulabChandv. State of Madhya Pradesh,1975 SCC page 574, quoted its earlier decision in Tulsi Rams case with approval that the presumption permitted to be drawn under Illustration 114(a) of the Evidence Act has to be read along with "important time factor. If the ornaments in possession of the deceased are round in possession of the person soon after the murder, a presumption of killing maybe permitted. In the said case before the Supreme Court ornaments belonging to the deceased had been sold by accused Gulab Chand of that case and within 3-4 days the recovery of the stolen articles was made from his house at the instance of the accused. The Court held that, such close proximity of the recovery which has been indicated by the Court as ‘important time factor’ should not be lost sight of". On the basis of the evidence led in the case and keeping in view the whole conspectus of the case the Trial Court rightly concluded that accused Vinod in the process of committing robbery used deadly weapon, namely, dagger and killing Smt. Sheela while the other three accused persons have participated in the commission of crime of robbery and actually removed huge articles including jewellery from the house of the deceased.30. Mr. Ramsubramaniam, Advocate, appearing as Amicus Curiae for accused Vinod submitted that as the prosecution has failed to prove the origin of blood found on the pant and shirt of Vinod appellant, he could not be held guilty of the offence of murder. Repelling such contention this Court in State of Rajasthan v.Teja Ram & Ors.., JT 1992 (2) SC 279, held : "Failure of the Serologist to detect the origin of the blood due to disintegration of the serum in the meanwhile does not mean that the blood stuck on the axe would not have been human blood at all. Sometimes it happens, either because the stain is too insufficient or due to haematological changes and plasmatic coagulation that a serologist might fail to detect the origin of the blood. Will it then mean that the blood would be of some other origin? Such guesswork that blood on the other axe would have been animal blood is unrealistic and far-fetched in the broad spectrum of this case. The effort of the criminal Court should not be to prowl for imaginative doubts. Unless the doubt is of a reasonable dimension which a judicially conscientious mind entertains with some objectivity, no benefit can be claimed by the accused." 31. Following Teja Rams case this Court again, in Gura Singhv. State of Rajasthan, JT 2000 (Supp.) 3 SC 528=VIII (2000) SLT 656, held : "We do not find any substance in the submissions of the learned Counsel for the appellant that in the absence of the report regarding the origin of the blood, the Trial Court could not have convicted the accused. The Serologist and Chemical Examiner has found it that the Chadar (sheet) seized in consequence of the disclosure statement made by the appellant was stained with human blood. As with the lapse of time the classification of the blood could not be determined, no bonus is conferred upon the accused to claim any benefit on the strength of such a belated and stale argument. The Trial Court as well as the High Court were/ therefore, justified in holding this circumstance as proved beyond doubt against the appellant." 32.By producing positive evidence, the prosecution established that appellant Vinod was in possession of a fire arm and cartridges in a notified area of Delhi vide notification No. F. 25{3) 87-HP dated 20.10.1987 and thus guilty of the offence punishable under Section 5 of the TADA (P) Act besides the offence of murder punishable under Section 302, IPC | 0[ds]28. A faint attempt was made by the Counsel for the appellants to persuade us to hold that the recoveries were doubtful because according to them prosecution had failed to ascertain the details of the stolen property and get it identified only after the recovery. Mrs. Ranu Moley, PW 17 who is the daughter of the deceased has deposed in the Court that she was called in the police station on 21st June, 1990 and enquired about the articles missing from her house. After checking she found missing 8 gold bangles, 6 other gold bangles, 6 pairs of ear-rings of gold, 6 pairs of tops, three pairs of ear-jhumkas, one Mangalsutra, one ginni, two golden rings, two idols of Lord Ganesha and Goddess Lakshmi made of silver, the plates of silver on which Air India was engraved, one lady set of silver, 8 wrist watches, 4 cameras, 1 electric shaver, 5 sarees, 20 suit-pieces, 6 gents suit-pieces, stitched shirt, two big bags of leather and one small bag. She has again stated that after the recovery of the property from the accused persons she identified the articles and found them to be belonging to her mother, which were stolen on the day of her murder. We do not agree with the Counsel for the appellants that the recovery of the articles had preceded the making of the disclosure statements.29.Learned Counsel appearing for the appellants Sanjay and Nawabuddin then submitted that even if the disclosure statements and, the recoveries are admitted, their clients can at the most be convicted for the commission of offence under Section 411, IPC.We do not agree with this submission as well in view of the fact that the murder and robbery in the instant case were part of the same transaction and the accused from whom the recoveries were made, consequent upon their disclosure statements, did not offer any explanation regarding their possession of the stolen properties. Drawing a presumption under Section 114 of the Evidence Act it can safely be held that the aforesaid two accused persons were atleast guilty of the offence of robbery punishable under Section 392, IPC on the assumption that they were not armed with any deadly weapon and not aware of Vinod appellant being armed with dagger. The Trial Court was, therefore, justified in holding that "the circumstances enumerated above together complete the chain of circumstances to prove the guilt of the accused persons insofar as the offence of robbery is concerned. In fact the disclosure statements of the accused persons and huge recoveries from them at their instance by itself is a sufficient circumstance on the very next day of the incident which clearly goes to show that the accused persons had joined hands to commit the offence of robbery". The Court also rightly held that, "Recent and unexplained possession of stolen properties will be taken to be presumptive evidence of the charge of murder as well. (See Baijurv.State of Madhya Pradesh ,AIR 1978 SC Page 522). Also see Eara Bhadrappas case (supra). In the case of the GulabChandv. State of Madhya Pradesh,1975 SCC page 574, quoted its earlier decision in Tulsi Rams case with approval that the presumption permitted to be drawn under Illustration 114(a) of the Evidence Act has to be read along with "important time factor. If the ornaments in possession of the deceased are round in possession of the person soon after the murder, a presumption of killing maybe permitted. In the said case before the Supreme Court ornaments belonging to the deceased had been sold by accused Gulab Chand of that case and within 3-4 days the recovery of the stolen articles was made from his house at the instance of the accused. The Court held that, such close proximity of the recovery which has been indicated by the Court as ‘important timeshould not be lost sight of". On the basis of the evidence led in the case and keeping in view the whole conspectus of the case the Trial Court rightly concluded that accused Vinod in the process of committing robbery used deadly weapon, namely, dagger and killing Smt. Sheela while the other three accused persons have participated in the commission of crime of robbery and actually removed huge articles including jewellery from the house of the deceased.30. Mr. Ramsubramaniam, Advocate, appearing as Amicus Curiae for accused Vinod submitted that as the prosecution has failed to prove the origin of blood found on the pant and shirt of Vinod appellant, he could not be held guilty of the offence of murder. Repelling such contention this Court in State of Rajasthan v.Teja Ram & Ors.., JT 1992 (2) SC 279, heldof the Serologist to detect the origin of the blood due to disintegration of the serum in the meanwhile does not mean that the blood stuck on the axe would not have been human blood at all. Sometimes it happens, either because the stain is too insufficient or due to haematological changes and plasmatic coagulation that a serologist might fail to detect the origin of the blood. Will it then mean that the blood would be of some other origin? Such guesswork that blood on the other axe would have been animal blood is unrealistic and far-fetched in the broad spectrum of this case. The effort of the criminal Court should not be to prowl for imaginative doubts. Unless the doubt is of a reasonable dimension which a judicially conscientious mind entertains with some objectivity, no benefit can be claimed by the accused.Following Teja Rams case this Court again, in Gura Singhv. State of Rajasthan, JT 2000 (Supp.) 3 SC 528=VIII (2000) SLT 656, helddo not find any substance in the submissions of the learned Counsel for the appellant that in the absence of the report regarding the origin of the blood, the Trial Court could not have convicted the accused. The Serologist and Chemical Examiner has found it that the Chadar (sheet) seized in consequence of the disclosure statement made by the appellant was stained with human blood. As with the lapse of time the classification of the blood could not be determined, no bonus is conferred upon the accused to claim any benefit on the strength of such a belated and stale argument. The Trial Court as well as the High Court were/ therefore, justified in holding this circumstance as proved beyond doubt against the | 0 | 8,256 | 1,168 | ### 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:
India was engraved, one lady set of silver, 8 wrist watches, 4 cameras, 1 electric shaver, 5 sarees, 20 suit-pieces, 6 gents suit-pieces, stitched shirt, two big bags of leather and one small bag. She has again stated that after the recovery of the property from the accused persons she identified the articles and found them to be belonging to her mother, which were stolen on the day of her murder. We do not agree with the Counsel for the appellants that the recovery of the articles had preceded the making of the disclosure statements.29. Learned Counsel appearing for the appellants Sanjay and Nawabuddin then submitted that even if the disclosure statements and, the recoveries are admitted, their clients can at the most be convicted for the commission of offence under Section 411, IPC. We do not agree with this submission as well in view of the fact that the murder and robbery in the instant case were part of the same transaction and the accused from whom the recoveries were made, consequent upon their disclosure statements, did not offer any explanation regarding their possession of the stolen properties. Drawing a presumption under Section 114 of the Evidence Act it can safely be held that the aforesaid two accused persons were atleast guilty of the offence of robbery punishable under Section 392, IPC on the assumption that they were not armed with any deadly weapon and not aware of Vinod appellant being armed with dagger. The Trial Court was, therefore, justified in holding that "the circumstances enumerated above together complete the chain of circumstances to prove the guilt of the accused persons insofar as the offence of robbery is concerned. In fact the disclosure statements of the accused persons and huge recoveries from them at their instance by itself is a sufficient circumstance on the very next day of the incident which clearly goes to show that the accused persons had joined hands to commit the offence of robbery". The Court also rightly held that, "Recent and unexplained possession of stolen properties will be taken to be presumptive evidence of the charge of murder as well. (See Baijurv.State of Madhya Pradesh ,AIR 1978 SC Page 522). Also see Eara Bhadrappas case (supra). In the case of the GulabChandv. State of Madhya Pradesh,1975 SCC page 574, quoted its earlier decision in Tulsi Rams case with approval that the presumption permitted to be drawn under Illustration 114(a) of the Evidence Act has to be read along with "important time factor. If the ornaments in possession of the deceased are round in possession of the person soon after the murder, a presumption of killing maybe permitted. In the said case before the Supreme Court ornaments belonging to the deceased had been sold by accused Gulab Chand of that case and within 3-4 days the recovery of the stolen articles was made from his house at the instance of the accused. The Court held that, such close proximity of the recovery which has been indicated by the Court as ‘important time factor’ should not be lost sight of". On the basis of the evidence led in the case and keeping in view the whole conspectus of the case the Trial Court rightly concluded that accused Vinod in the process of committing robbery used deadly weapon, namely, dagger and killing Smt. Sheela while the other three accused persons have participated in the commission of crime of robbery and actually removed huge articles including jewellery from the house of the deceased.30. Mr. Ramsubramaniam, Advocate, appearing as Amicus Curiae for accused Vinod submitted that as the prosecution has failed to prove the origin of blood found on the pant and shirt of Vinod appellant, he could not be held guilty of the offence of murder. Repelling such contention this Court in State of Rajasthan v.Teja Ram & Ors.., JT 1992 (2) SC 279, held : "Failure of the Serologist to detect the origin of the blood due to disintegration of the serum in the meanwhile does not mean that the blood stuck on the axe would not have been human blood at all. Sometimes it happens, either because the stain is too insufficient or due to haematological changes and plasmatic coagulation that a serologist might fail to detect the origin of the blood. Will it then mean that the blood would be of some other origin? Such guesswork that blood on the other axe would have been animal blood is unrealistic and far-fetched in the broad spectrum of this case. The effort of the criminal Court should not be to prowl for imaginative doubts. Unless the doubt is of a reasonable dimension which a judicially conscientious mind entertains with some objectivity, no benefit can be claimed by the accused." 31. Following Teja Rams case this Court again, in Gura Singhv. State of Rajasthan, JT 2000 (Supp.) 3 SC 528=VIII (2000) SLT 656, held : "We do not find any substance in the submissions of the learned Counsel for the appellant that in the absence of the report regarding the origin of the blood, the Trial Court could not have convicted the accused. The Serologist and Chemical Examiner has found it that the Chadar (sheet) seized in consequence of the disclosure statement made by the appellant was stained with human blood. As with the lapse of time the classification of the blood could not be determined, no bonus is conferred upon the accused to claim any benefit on the strength of such a belated and stale argument. The Trial Court as well as the High Court were/ therefore, justified in holding this circumstance as proved beyond doubt against the appellant." 32.By producing positive evidence, the prosecution established that appellant Vinod was in possession of a fire arm and cartridges in a notified area of Delhi vide notification No. F. 25{3) 87-HP dated 20.10.1987 and thus guilty of the offence punishable under Section 5 of the TADA (P) Act besides the offence of murder punishable under Section 302, IPC
### Response:
0
### Explanation:
she was called in the police station on 21st June, 1990 and enquired about the articles missing from her house. After checking she found missing 8 gold bangles, 6 other gold bangles, 6 pairs of ear-rings of gold, 6 pairs of tops, three pairs of ear-jhumkas, one Mangalsutra, one ginni, two golden rings, two idols of Lord Ganesha and Goddess Lakshmi made of silver, the plates of silver on which Air India was engraved, one lady set of silver, 8 wrist watches, 4 cameras, 1 electric shaver, 5 sarees, 20 suit-pieces, 6 gents suit-pieces, stitched shirt, two big bags of leather and one small bag. She has again stated that after the recovery of the property from the accused persons she identified the articles and found them to be belonging to her mother, which were stolen on the day of her murder. We do not agree with the Counsel for the appellants that the recovery of the articles had preceded the making of the disclosure statements.29.Learned Counsel appearing for the appellants Sanjay and Nawabuddin then submitted that even if the disclosure statements and, the recoveries are admitted, their clients can at the most be convicted for the commission of offence under Section 411, IPC.We do not agree with this submission as well in view of the fact that the murder and robbery in the instant case were part of the same transaction and the accused from whom the recoveries were made, consequent upon their disclosure statements, did not offer any explanation regarding their possession of the stolen properties. Drawing a presumption under Section 114 of the Evidence Act it can safely be held that the aforesaid two accused persons were atleast guilty of the offence of robbery punishable under Section 392, IPC on the assumption that they were not armed with any deadly weapon and not aware of Vinod appellant being armed with dagger. The Trial Court was, therefore, justified in holding that "the circumstances enumerated above together complete the chain of circumstances to prove the guilt of the accused persons insofar as the offence of robbery is concerned. In fact the disclosure statements of the accused persons and huge recoveries from them at their instance by itself is a sufficient circumstance on the very next day of the incident which clearly goes to show that the accused persons had joined hands to commit the offence of robbery". The Court also rightly held that, "Recent and unexplained possession of stolen properties will be taken to be presumptive evidence of the charge of murder as well. (See Baijurv.State of Madhya Pradesh ,AIR 1978 SC Page 522). Also see Eara Bhadrappas case (supra). In the case of the GulabChandv. State of Madhya Pradesh,1975 SCC page 574, quoted its earlier decision in Tulsi Rams case with approval that the presumption permitted to be drawn under Illustration 114(a) of the Evidence Act has to be read along with "important time factor. If the ornaments in possession of the deceased are round in possession of the person soon after the murder, a presumption of killing maybe permitted. In the said case before the Supreme Court ornaments belonging to the deceased had been sold by accused Gulab Chand of that case and within 3-4 days the recovery of the stolen articles was made from his house at the instance of the accused. The Court held that, such close proximity of the recovery which has been indicated by the Court as ‘important timeshould not be lost sight of". On the basis of the evidence led in the case and keeping in view the whole conspectus of the case the Trial Court rightly concluded that accused Vinod in the process of committing robbery used deadly weapon, namely, dagger and killing Smt. Sheela while the other three accused persons have participated in the commission of crime of robbery and actually removed huge articles including jewellery from the house of the deceased.30. Mr. Ramsubramaniam, Advocate, appearing as Amicus Curiae for accused Vinod submitted that as the prosecution has failed to prove the origin of blood found on the pant and shirt of Vinod appellant, he could not be held guilty of the offence of murder. Repelling such contention this Court in State of Rajasthan v.Teja Ram & Ors.., JT 1992 (2) SC 279, heldof the Serologist to detect the origin of the blood due to disintegration of the serum in the meanwhile does not mean that the blood stuck on the axe would not have been human blood at all. Sometimes it happens, either because the stain is too insufficient or due to haematological changes and plasmatic coagulation that a serologist might fail to detect the origin of the blood. Will it then mean that the blood would be of some other origin? Such guesswork that blood on the other axe would have been animal blood is unrealistic and far-fetched in the broad spectrum of this case. The effort of the criminal Court should not be to prowl for imaginative doubts. Unless the doubt is of a reasonable dimension which a judicially conscientious mind entertains with some objectivity, no benefit can be claimed by the accused.Following Teja Rams case this Court again, in Gura Singhv. State of Rajasthan, JT 2000 (Supp.) 3 SC 528=VIII (2000) SLT 656, helddo not find any substance in the submissions of the learned Counsel for the appellant that in the absence of the report regarding the origin of the blood, the Trial Court could not have convicted the accused. The Serologist and Chemical Examiner has found it that the Chadar (sheet) seized in consequence of the disclosure statement made by the appellant was stained with human blood. As with the lapse of time the classification of the blood could not be determined, no bonus is conferred upon the accused to claim any benefit on the strength of such a belated and stale argument. The Trial Court as well as the High Court were/ therefore, justified in holding this circumstance as proved beyond doubt against the
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Radhakrishna Sivadutta Rai And Ors Vs. Tayeballi Dawoodbeai | is where a contract is made by an agent for sale or purchase of goods for a merchant resident abroad, in other words, under S. 230 if an agent enters into a contract for a disclosed foreign principal the main provision of S. 230 will not apply because there would be a presumption at there is a contract to the contrary under which the agent would be personally bound by the contract notwithstanding the fact that he has entered into it on behalf of a foreign principal. Therefore, we are not prepared to hold that the decision in the case of H. C. Brandt and Co. (1917) 2 KB 784 lays down an unqualified rule of construction on which the appellant can rely. In fact, it may be pointed out that Nevile, J., who dissented from the majority view, as significantly observed that"I rather gather that I should not have found myself in isolation on this point were it not for the fact that during the, war there is an obligation to disclose the destination of the goods".This observation shows that reference to the disclosed principal was not given its full effect in considering the question about the liability of the agent because it was held by the majority decision that the said reference was primarily, if not exclusively made for the purposes; of disclosing the destination of the goods.17. In support of his argument that the relevant recitals in the two letters show that the contract had been entered into by the appellant on its own behalf. Mr. Pathak has also referred us to the statement of the law made by Bowstead on "Agency". "The question whether the agent is to be deemed to have contracted personally", it is observed,"in the case of a contract in writing other than a bill of exchange, promissory note or cheque, depends upon the intention of the parties as appearing from the terms of the written agreement as a whole, the construction whereof is a matter of law for the court---(a) if the contract be signed by the agent in his own name without qualification, he is deemed to have contracted personally, unless a contrary intention plainly appears from other portions of the document, (b) if the agent add words to his signature, indicating that he signs as an agent, or for or on behalf of a principal, he is deemed to have contracted personally unless it plainly appears from other portions of the document, that, notwithstanding such qualified signature, he intended to bind himself."In conclusion it, is added that effect should be given to every word used and opinion should be rejected unless it is apparent that they have been introduced per incuriam (P. 266, Art. 116). These observations do not carry the appellants case very far because all that they show is that in determining the question as to whether the agent has entered into the contract on behalf of the principal or not the way he has signed the document has to be considered along with the other recitals made in the relevant documents.18. What then would be the effect of the relevant recitals in the letter on which Mr. Pathak relies? In this connection it is necessary to recall that we are reading these letters along with the brought and sold notes, and that the bought and sold notes have unequivocally and clearly indicated that the appellant was acting on behalf and on account of the disclosed principal Khaitan and Sons. If we read the letters in the light of the bought and sold notes it would be clear that the signature of the appellant will not have much significance, nor would the use of the word "we by the appellant or "you" by the respondent make any difference. Parties knew that the appellant was acting on behalf of the disclosed principal. It is not suggested that in such a case everytime the agent has to sign expressly stating that he is acting on behalf of the disclosed principal. Therefore, if the appellant was acting for the disclosed principal the fact that he did not add the relevant description to his signature, or used the word "we" in the operative portion of the letter would not materially alter the fact spoken to by the notes that the appellant was acting on behalf of the disclosed principal. It cannot be suggested that these letters intended to alter the position disclosed by the notes. The letters, like the confirmation slips, are, and must be, presumed to be consistent with the notes; and so it would be unreasonable to attach undue importance to the signature and to the use of the relevant words "we" and "you" on which reliance has been placed. In our opinion, therefore, the Appellate Court was right in holding that even if the bought and sold notes are read along with the confirmation slips and the two letters of January 3, 1951 and January 15, 1951, the conclusion is inescapable that the appellant entered into the contract on behalf of the disclosed principal Khaitan and Sons Ltd. If that be so, it follows as a matter of law that the appellant is not entitled to bring the present suit.19. Mr. Pathak feignly attempted to argue in the alternative that even if the appellant was acting on behalf of the disclosed principal it would be entitled to sue because from the subsequent conduct of the parties a contract to the contrary could be reasonably inferred. We have, however, not allowed, Mr. Pathak to argue this point. It was conceded by the appellant before the Appellate Court that if it was held that the plaintiff firm was acting as agent for Khaitan and Sons Ltd., the suit was not maintainable. This concession was made in view of the provisions of S. 236 of the Contract Act. Besides, the alternative plea which Mr. Pathak wanted to raise does not appear to have been expressly pleaded or considered in the trial court. | 0[ds]For the purpose of deciding this point we propose to assume in favour of the appellant that the terms of the contract may be gathered from the two bought and sold notes on which the respondent relies as well as the two subsequent letters on which the appellantare not impressed by this argument. In regard to these notes we have the evidence of Trilokinath and Gopinath on behalf of the brokers which negatives the theory of mistake or misconception. Trilokinath has stated on oath that when he got the offer from the respondent he telephoned to his brother Gopinath who is a broker in respect of hemp of the firm of Sewnath Gopinath and he told him about the offer. Gopinath then informed Trilokinath that the offer was closed either on the 16th or on the morning of the 17th. This information was received by Trilokinath from Gopinath on the telephone. Trilokinath was then asked about the information that his brother gave him, and he stated that his brother told him that the offer which he had communicated to him in respect of 1000 bales at Rs. 165 and Rs. 145 had been sold by him to Khaitan Sons and Co., Fibre Ltd. He also added that he received another message from his brother either on the 18th or on the night of the 17th to prepare a contract so that it will be Khaitan and Sons through the appellant. Thus, it is clear that the evidence of Trilokinath, if believed, clearly shows that there could be no mistake or misappreciation on the part of the brokers, when the notes referred to Khaitan and Sons as principal in respect of the transaction. Gopinath substantially corroborated the evidence given by Trilokinath. He stated that when he got the offer from his brother Trilokinath he went to Deokinandan who was working for Khaitan and Sons and it was after discussion with Deokinandan that the souda was closed as one on behalf of Khaitan and Sons. Having thus closed this contract with Deokinandan, who represented the principal Khaitan and Sons, Gopinath told Trilokinath to close the offer and asked him to prepare the note showing that the appellant was acting as agent for the disclosed principal Khaitan and Sons. Reading the evidence of the two brothers who worked as brokers in respect of the transaction in suit it is clear that any possibility of a mistake or misappreciation is whollyis obvious that Gopal Lals evidence which otherwise suffers from the infirmity that it is full of contradictions cannot be accepted on the question of mistake because his explanation about his conduct in signing the confirmation slips considered by itself is wholly unsatisfactory. Therefore, in our opinion, the Appellate Court was fully justified in reversing the finding of the trial court on this point and in coming to the conclusion that the reference to Khaitan and Sons which the notes made was not the result of any mistake orthe suit itself a faint attempt was no doubt made to challenge the identity of the firm Khaitan and Sons, but Mr. Pathak has very fairly not attempted to raise that point before us. It would thus be noticed that the principal point made by the appellant in the arbitration proceedings before the Chamber in respect of the reference to Khaitan and Sons in the notes was entirely frivolous; no case of mistake appears to have been set out at that stage. Besides, as we have already pointed out, there is no evidence on which a finding of mistake can be reasonably made in favour of the appellant. Therefore, we must proceed to consider the question about the construction of the relevant documents on the basis that the reference to Khaitan and Sons which the notes make is not the result of any mistake and has been made in the ordinary course of business by theare inclined to accept thisdecision shows that the mercantile usage of entering into contracts evidenced by the bought and sold notes issued by the brokers was treated by the Privy Council as well recognised.It is in the light of this legal position that we must consider the effect of the bought and sold notes in the present case. The notes referred to the appellant and added "A/C Khaitan and Sons Ltd.". There is no disparity in the notes at all; and so the two notes can be safely taken to evidence the terms of the contract. When along with the name of the appellant the notes specifically refer to "Khaitan and Sons Ltd. with the preceding words "A/c", there can be no doubt that the appellant is shown by the notes to be acting on account of the disclosed principal. The appellant realised that the effect of the reference to Khaitan and Sons in the notes would inevitably be to support the plea of the respondent that it was not entitled to bring the present action and so it pleaded that the said reference was the result of a mistake. Therefore, there can be no doubt that if the material question had to be considered in the light of the bought and sold notes alone the appellant was acting on behalf of the disclosed principal and, on the contract thus entered into, it had no right to sue and can claim no cause of action in itshave referred to these observations made by Mellish, L. J., because as we will presently point out they would be of material assistance in deciding the point which Mr. Pathak has raised on the strength of the two subsequent letters. Thus, the bought and sold notes in this case unambiguously indicate that the appellant was acting for a disclosed principal and the contracting party was the disclosed principal and nohave already seen the sequence of the documents. First, the notes were delivered by the brokers to the appellant and the respondent. Then the respective parties filed confirmation slips and then followed the two letters exchanged betweenis no doubt, and indeed it is a matter of common-ground before us, that the letters do not constitute all the terms of the contract, and all that is urged by Mr. Pathak is that they should be considered along with the notes. The notes refer to the fact that if any dispute arises in the deal it is subject to the arbitration by the Bengal Chamber of Commerce. They also refer to the sales tax number which is to be furnished by the buyers, otherwise they would be charged. These terms undoubtedly constitute terms of the contract; but the argument is that in the correspondence which took place between the parties there is no reference to the principal and indeed the correspondence proceeds on the basis that the appellant acts for itself and not for a disclosed principal, and that should be borne in mind in deciding whether the appellant was acting for the disclosed principal orwe are not prepared to hold that the decision in the case of H. C. Brandt and Co. (1917) 2 KB 784 lays down an unqualified rule of construction on which the appellant canobservation shows that reference to the disclosed principal was not given its full effect in considering the question about the liability of the agent because it was held by the majority decision that the said reference was primarily, if not exclusively made for the purposes; of disclosing the destination of theobservations do not carry the appellants case very far because all that they show is that in determining the question as to whether the agent has entered into the contract on behalf of the principal or not the way he has signed the document has to be considered along with the other recitals made in the relevant documents.18. What then would be the effect of the relevant recitals in the letter on which Mr. Pathak relies? In this connection it is necessary to recall that we are reading these letters along with the brought and sold notes, and that the bought and sold notes have unequivocally and clearly indicated that the appellant was acting on behalf and on account of the disclosed principal Khaitan and Sons. If we read the letters in the light of the bought and sold notes it would be clear that the signature of the appellant will not have much significance, nor would the use of the word "we by the appellant or "you" by the respondent make any difference. Parties knew that the appellant was acting on behalf of the disclosed principal. It is not suggested that in such a case everytime the agent has to sign expressly stating that he is acting on behalf of the disclosed principal. Therefore, if the appellant was acting for the disclosed principal the fact that he did not add the relevant description to his signature, or used the word "we" in the operative portion of the letter would not materially alter the fact spoken to by the notes that the appellant was acting on behalf of the disclosed principal. It cannot be suggested that these letters intended to alter the position disclosed by the notes. The letters, like the confirmation slips, are, and must be, presumed to be consistent with the notes; and so it would be unreasonable to attach undue importance to the signature and to the use of the relevant words "we" and "you" on which reliance has been placed. In our opinion, therefore, the Appellate Court was right in holding that even if the bought and sold notes are read along with the confirmation slips and the two letters of January 3, 1951 and January 15, 1951, the conclusion is inescapable that the appellant entered into the contract on behalf of the disclosed principal Khaitan and Sons Ltd. If that be so, it follows as a matter of law that the appellant is not entitled to bring the presenthave, however, not allowed, Mr. Pathak to argue this point. It was conceded by the appellant before the Appellate Court that if it was held that the plaintiff firm was acting as agent for Khaitan and Sons Ltd., the suit was not maintainable. This concession was made in view of the provisions of S. 236 of the Contract Act. Besides, the alternative plea which Mr. Pathak wanted to raise does not appear to have been expressly pleaded or considered in the trial court. | 0 | 7,714 | 1,852 | ### Instruction:
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is where a contract is made by an agent for sale or purchase of goods for a merchant resident abroad, in other words, under S. 230 if an agent enters into a contract for a disclosed foreign principal the main provision of S. 230 will not apply because there would be a presumption at there is a contract to the contrary under which the agent would be personally bound by the contract notwithstanding the fact that he has entered into it on behalf of a foreign principal. Therefore, we are not prepared to hold that the decision in the case of H. C. Brandt and Co. (1917) 2 KB 784 lays down an unqualified rule of construction on which the appellant can rely. In fact, it may be pointed out that Nevile, J., who dissented from the majority view, as significantly observed that"I rather gather that I should not have found myself in isolation on this point were it not for the fact that during the, war there is an obligation to disclose the destination of the goods".This observation shows that reference to the disclosed principal was not given its full effect in considering the question about the liability of the agent because it was held by the majority decision that the said reference was primarily, if not exclusively made for the purposes; of disclosing the destination of the goods.17. In support of his argument that the relevant recitals in the two letters show that the contract had been entered into by the appellant on its own behalf. Mr. Pathak has also referred us to the statement of the law made by Bowstead on "Agency". "The question whether the agent is to be deemed to have contracted personally", it is observed,"in the case of a contract in writing other than a bill of exchange, promissory note or cheque, depends upon the intention of the parties as appearing from the terms of the written agreement as a whole, the construction whereof is a matter of law for the court---(a) if the contract be signed by the agent in his own name without qualification, he is deemed to have contracted personally, unless a contrary intention plainly appears from other portions of the document, (b) if the agent add words to his signature, indicating that he signs as an agent, or for or on behalf of a principal, he is deemed to have contracted personally unless it plainly appears from other portions of the document, that, notwithstanding such qualified signature, he intended to bind himself."In conclusion it, is added that effect should be given to every word used and opinion should be rejected unless it is apparent that they have been introduced per incuriam (P. 266, Art. 116). These observations do not carry the appellants case very far because all that they show is that in determining the question as to whether the agent has entered into the contract on behalf of the principal or not the way he has signed the document has to be considered along with the other recitals made in the relevant documents.18. What then would be the effect of the relevant recitals in the letter on which Mr. Pathak relies? In this connection it is necessary to recall that we are reading these letters along with the brought and sold notes, and that the bought and sold notes have unequivocally and clearly indicated that the appellant was acting on behalf and on account of the disclosed principal Khaitan and Sons. If we read the letters in the light of the bought and sold notes it would be clear that the signature of the appellant will not have much significance, nor would the use of the word "we by the appellant or "you" by the respondent make any difference. Parties knew that the appellant was acting on behalf of the disclosed principal. It is not suggested that in such a case everytime the agent has to sign expressly stating that he is acting on behalf of the disclosed principal. Therefore, if the appellant was acting for the disclosed principal the fact that he did not add the relevant description to his signature, or used the word "we" in the operative portion of the letter would not materially alter the fact spoken to by the notes that the appellant was acting on behalf of the disclosed principal. It cannot be suggested that these letters intended to alter the position disclosed by the notes. The letters, like the confirmation slips, are, and must be, presumed to be consistent with the notes; and so it would be unreasonable to attach undue importance to the signature and to the use of the relevant words "we" and "you" on which reliance has been placed. In our opinion, therefore, the Appellate Court was right in holding that even if the bought and sold notes are read along with the confirmation slips and the two letters of January 3, 1951 and January 15, 1951, the conclusion is inescapable that the appellant entered into the contract on behalf of the disclosed principal Khaitan and Sons Ltd. If that be so, it follows as a matter of law that the appellant is not entitled to bring the present suit.19. Mr. Pathak feignly attempted to argue in the alternative that even if the appellant was acting on behalf of the disclosed principal it would be entitled to sue because from the subsequent conduct of the parties a contract to the contrary could be reasonably inferred. We have, however, not allowed, Mr. Pathak to argue this point. It was conceded by the appellant before the Appellate Court that if it was held that the plaintiff firm was acting as agent for Khaitan and Sons Ltd., the suit was not maintainable. This concession was made in view of the provisions of S. 236 of the Contract Act. Besides, the alternative plea which Mr. Pathak wanted to raise does not appear to have been expressly pleaded or considered in the trial court.
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safely taken to evidence the terms of the contract. When along with the name of the appellant the notes specifically refer to "Khaitan and Sons Ltd. with the preceding words "A/c", there can be no doubt that the appellant is shown by the notes to be acting on account of the disclosed principal. The appellant realised that the effect of the reference to Khaitan and Sons in the notes would inevitably be to support the plea of the respondent that it was not entitled to bring the present action and so it pleaded that the said reference was the result of a mistake. Therefore, there can be no doubt that if the material question had to be considered in the light of the bought and sold notes alone the appellant was acting on behalf of the disclosed principal and, on the contract thus entered into, it had no right to sue and can claim no cause of action in itshave referred to these observations made by Mellish, L. J., because as we will presently point out they would be of material assistance in deciding the point which Mr. Pathak has raised on the strength of the two subsequent letters. Thus, the bought and sold notes in this case unambiguously indicate that the appellant was acting for a disclosed principal and the contracting party was the disclosed principal and nohave already seen the sequence of the documents. First, the notes were delivered by the brokers to the appellant and the respondent. Then the respective parties filed confirmation slips and then followed the two letters exchanged betweenis no doubt, and indeed it is a matter of common-ground before us, that the letters do not constitute all the terms of the contract, and all that is urged by Mr. Pathak is that they should be considered along with the notes. The notes refer to the fact that if any dispute arises in the deal it is subject to the arbitration by the Bengal Chamber of Commerce. They also refer to the sales tax number which is to be furnished by the buyers, otherwise they would be charged. These terms undoubtedly constitute terms of the contract; but the argument is that in the correspondence which took place between the parties there is no reference to the principal and indeed the correspondence proceeds on the basis that the appellant acts for itself and not for a disclosed principal, and that should be borne in mind in deciding whether the appellant was acting for the disclosed principal orwe are not prepared to hold that the decision in the case of H. C. Brandt and Co. (1917) 2 KB 784 lays down an unqualified rule of construction on which the appellant canobservation shows that reference to the disclosed principal was not given its full effect in considering the question about the liability of the agent because it was held by the majority decision that the said reference was primarily, if not exclusively made for the purposes; of disclosing the destination of theobservations do not carry the appellants case very far because all that they show is that in determining the question as to whether the agent has entered into the contract on behalf of the principal or not the way he has signed the document has to be considered along with the other recitals made in the relevant documents.18. What then would be the effect of the relevant recitals in the letter on which Mr. Pathak relies? In this connection it is necessary to recall that we are reading these letters along with the brought and sold notes, and that the bought and sold notes have unequivocally and clearly indicated that the appellant was acting on behalf and on account of the disclosed principal Khaitan and Sons. If we read the letters in the light of the bought and sold notes it would be clear that the signature of the appellant will not have much significance, nor would the use of the word "we by the appellant or "you" by the respondent make any difference. Parties knew that the appellant was acting on behalf of the disclosed principal. It is not suggested that in such a case everytime the agent has to sign expressly stating that he is acting on behalf of the disclosed principal. Therefore, if the appellant was acting for the disclosed principal the fact that he did not add the relevant description to his signature, or used the word "we" in the operative portion of the letter would not materially alter the fact spoken to by the notes that the appellant was acting on behalf of the disclosed principal. It cannot be suggested that these letters intended to alter the position disclosed by the notes. The letters, like the confirmation slips, are, and must be, presumed to be consistent with the notes; and so it would be unreasonable to attach undue importance to the signature and to the use of the relevant words "we" and "you" on which reliance has been placed. In our opinion, therefore, the Appellate Court was right in holding that even if the bought and sold notes are read along with the confirmation slips and the two letters of January 3, 1951 and January 15, 1951, the conclusion is inescapable that the appellant entered into the contract on behalf of the disclosed principal Khaitan and Sons Ltd. If that be so, it follows as a matter of law that the appellant is not entitled to bring the presenthave, however, not allowed, Mr. Pathak to argue this point. It was conceded by the appellant before the Appellate Court that if it was held that the plaintiff firm was acting as agent for Khaitan and Sons Ltd., the suit was not maintainable. This concession was made in view of the provisions of S. 236 of the Contract Act. Besides, the alternative plea which Mr. Pathak wanted to raise does not appear to have been expressly pleaded or considered in the trial court.
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Mohammad Ismail, Vs. Nanney Lal | of it within six weeks thereafter. At the most, therefore, he has to wait for about ten weeks from the order of the District Magistrate granting permission to find out whether he can safely institute a suit. But so far as the revisional powers of the State Government are concerned, there is no time limit fixed either for application by an aggrieved party or for the disposal thereof. It may be made at any time and the State Government is further authorised by this section (S. 7-F) to act suo motu. In such a state of affairs, it would not be right to hold that the landlord must wait indefinitely and find out whether the permission granted to him will be upheld by the State Government should the tenant make an application for revision of the order of the Commissioner.7. Apart from the above consideration, the words of S. 7-F in our opinion, indicate that the State Government can only exercise its jurisdiction to revise the order of the Commissioner before the actual institution of the suit. The language of S. 7-F shows that on the facts of the case before it the State Government must consider whether the grant of or refusal to grant permission for the filing of a suit should be upheld or not. The section does not seem to be aimed at invalidating a suit already instituted and can only operate at a stage before the landlord launches his proceeding. There is nothing in sub-s. (4) of S. 3 read with S. 7-F to show that a landlord should wait till the powers of the revising authorities have been exhausted.It the Legislature had so intended, it could have used words in sub-section (1) of S. 3 to indicate that the grant of permission by the District magistrate would also be subject to an order under S. 7-F. The same result might have been achieved by providing for the stay of a suit in case the State Government made an order under S. 7-F contrary to that of the Commissioner.8. Once a suit is validly instituted it must take its course and the decree passed therein must be given effect to unless the words of the statute render the decree inexecutable or liable to re-opening in a proper case on grounds mentioned in the statute. It was pointed out by this Court in Bhagwan Dass case C. A. No. 1617 of 1968,D/- 27-9-1968 = (AIR 1970 SC 971 ) that the Legislature had provided for a decree for eviction of a tenant passed before the commencement of the Act liable to be rendered inexecutable unless it was based on any of the grounds mentioned in sub-s. (3). The Legislature might, if so advised, have provided for a similar result in a case where the State Government had revoked the permission to sue granted by the Commissioner.9. It was also pointed out in Bhagwan Dass case, C. A. No. 1617 of 1968, D/- 27-9-1968 = (AIR 1970 SC 971 ) that it would make a mockery of the judicial process if we were to hold on the language of the sections as they stand at present, that irrespective of a decree being passed by the trial court being upheld in appeal by the High Court or by this Court, the order of the State Government would nullify all proceedings.10. There is nothing in the judgment of this Court in Bhagwan v. Ram Chand, 1965-3 SCR 218 = (AIR 1965 SC 1767 ) read with section 16 of the Act which would incline us to come to any different conclusion. On the strength of the decision in that case read in the light of S. 16, it was argued that the order of the State Government being quasi-judicial in nature S. 16 (inset)*placed the order of the State Government beyond the pale of scrutiny by a court of law. We cannot see any force in this argument. The permission to sue given by the Commissioner has no effect on the course of the trial of the issues involved in that suit. That permission is only a prerequisite to a suit as a notice under S. 80 of the Code of Civil Procedure. The court trying the suit for eviction has to find out whether a proper notice to quit was given and whether the tenancy was properly determined. It must also examine the grounds on the basis of which the landlord seeks to evict the tenant and decide for itself whether such grounds exist. Neither the District Magistrate for the Commissioner nor the State Government is obliged to disclose any reasons which may influence the said authorities in coming to their decision and the court is not called upon to examine whether the conclusion of any of the said authorities was properly arrived at.*Section 16. - Orders under the Act not to be questioned in any Court - No order made under this Act by the State Government or the District Magistrate shall be called in question in any Court.11. Learned counsel for the appellant would have us hold that S. 16 ousted the jurisdiction of the court to consider the propriety of any order of the State Government. In our view, that is not the effect of that section. The decision in 1965-3 SCR 218 = (AIR 1965 SC 1767 ) (supra) shows thatthe State Government must offer a reasonable opportunity to both the parties while it exercises its jurisdiction under S. 7-F and an order which is made in violation of the principles of natural justice may be quashed. Once the jurisdiction under S. 16 (7-F?) is properly exercised the court cannot examine the propriety of the order made thereunder.12. In our view, as already pointed out, jurisdiction under Section 7-F is only exercisable at a point of time anterior to the filing of a suit and Courts of law can therefore disregard any order under that section which is made after the filing of a suit. | 0[ds]7. Apart from the above consideration, the words of S. 7-F in our opinion, indicate that the State Government can only exercise its jurisdiction to revise the order of the Commissioner before the actual institution of the suit. The language of S. 7-F shows that on the facts of the case before it the State Government must consider whether the grant of or refusal to grant permission for the filing of a suit should be upheld or not. The section does not seem to be aimed at invalidating a suit already instituted and can only operate at a stage before the landlord launches his proceeding. There is nothing in sub-s. (4) of S. 3 read with S. 7-F to show that a landlord should wait till the powers of the revising authorities have been exhausted.It the Legislature had so intended, it could have used words in sub-section (1) of S. 3 to indicate that the grant of permission by the District magistrate would also be subject to an order under S. 7-F. The same result might have been achieved by providing for the stay of a suit in case the State Government made an order under S. 7-F contrary to that of the Commissioner.8. Once a suit is validly instituted it must take its course and the decree passed therein must be given effect to unless the words of the statute render the decree inexecutable or liable to re-opening in a proper case on grounds mentioned in the statute. It was pointed out by this Court in Bhagwan Dass case C. A. No. 1617 of 1968,D/- 27-9-1968 = (AIR 1970 SC 971 ) that the Legislature had provided for a decree for eviction of a tenant passed before the commencement of the Act liable to be rendered inexecutable unless it was based on any of the grounds mentioned in sub-s. (3). The Legislature might, if so advised, have provided for a similar result in a case where the State Government had revoked the permission to sue granted by the Commissioner.9. It was also pointed out in Bhagwan Dass case, C. A. No. 1617 of 1968, D/- 27-9-1968 = (AIR 1970 SC 971 ) that it would make a mockery of the judicial process if we were to hold on the language of the sections as they stand at present, that irrespective of a decree being passed by the trial court being upheld in appeal by the High Court or by this Court, the order of the State Government would nullify all proceedings.10. There is nothing in the judgment of this Court in Bhagwan v. Ram Chand, 1965-3 SCR 218 = (AIR 1965 SC 1767 ) read with section 16 of the Act which would incline us to come to any different conclusion. On the strength of the decision in that case read in the light of S. 16, it was argued that the order of the State Government being quasi-judicial in nature S. 16 (inset)*placed the order of the State Government beyond the pale of scrutiny by a court of law. We cannot see any force in this argument. The permission to sue given by the Commissioner has no effect on the course of the trial of the issues involved in that suit. That permission is only a prerequisite to a suit as a notice under S. 80 of theCode of Civil Procedure. The court trying the suit for eviction has to find out whether a proper notice to quit was given and whether the tenancy was properly determined. It must also examine the grounds on the basis of which the landlord seeks to evict the tenant and decide for itself whether such grounds exist. Neither the District Magistrate for the Commissioner nor the State Government is obliged to disclose any reasons which may influence the said authorities in coming to their decision and the court is not called upon to examine whether the conclusion of any of the said authorities was properly arrivedour view, that is not the effect of that section. The decision in 1965-3 SCR 218 = (AIR 1965 SC 1767 ) (supra) shows thatthe State Government must offer a reasonable opportunity to both the parties while it exercises its jurisdiction under S. 7-F and an order which is made in violation of the principles of natural justice may be quashed. Once the jurisdiction under S. 16 (7-F?) is properly exercised the court cannot examine the propriety of the order made thereunder.12. In our view, as already pointed out, jurisdiction under Section 7-F is only exercisable at a point of time anterior to the filing of a suit and Courts of law can therefore disregard any order under that section which is made after the filing of aour view, that is not the effect of that section. The decision inSCR 218 = (AIR 1965 SC 1767 ) (supra) shows thatthe State Government must offer a reasonable opportunity to both the parties while it exercises its jurisdiction under S.and an order which is made in violation of the principles of natural justice may be quashed. Once the jurisdiction under S. 16is properly exercised the court cannot examine the propriety of the order madeour view, that is not the effect of that section. The decision inSCR 218 = (AIR 1965 SC 1767 ) (supra) shows thatthe State Government must offer a reasonable opportunity to both the parties while it exercises its jurisdiction under S.and an order which is made in violation of the principles of natural justice may be quashed. Once the jurisdiction under S. 16thereunder.12. In our view, as already pointed out, jurisdiction under Sectionis only exercisable at a point of time anterior to the filing of a suit and Courts of law can therefore disregard any order under that section which is made after the filing of a | 0 | 2,688 | 1,052 | ### Instruction:
Forecast the likely verdict of the case (granting (1) or denying (0) the appeal) and then rationalize your prediction by pinpointing and explaining pivotal sentences in the case document.
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of it within six weeks thereafter. At the most, therefore, he has to wait for about ten weeks from the order of the District Magistrate granting permission to find out whether he can safely institute a suit. But so far as the revisional powers of the State Government are concerned, there is no time limit fixed either for application by an aggrieved party or for the disposal thereof. It may be made at any time and the State Government is further authorised by this section (S. 7-F) to act suo motu. In such a state of affairs, it would not be right to hold that the landlord must wait indefinitely and find out whether the permission granted to him will be upheld by the State Government should the tenant make an application for revision of the order of the Commissioner.7. Apart from the above consideration, the words of S. 7-F in our opinion, indicate that the State Government can only exercise its jurisdiction to revise the order of the Commissioner before the actual institution of the suit. The language of S. 7-F shows that on the facts of the case before it the State Government must consider whether the grant of or refusal to grant permission for the filing of a suit should be upheld or not. The section does not seem to be aimed at invalidating a suit already instituted and can only operate at a stage before the landlord launches his proceeding. There is nothing in sub-s. (4) of S. 3 read with S. 7-F to show that a landlord should wait till the powers of the revising authorities have been exhausted.It the Legislature had so intended, it could have used words in sub-section (1) of S. 3 to indicate that the grant of permission by the District magistrate would also be subject to an order under S. 7-F. The same result might have been achieved by providing for the stay of a suit in case the State Government made an order under S. 7-F contrary to that of the Commissioner.8. Once a suit is validly instituted it must take its course and the decree passed therein must be given effect to unless the words of the statute render the decree inexecutable or liable to re-opening in a proper case on grounds mentioned in the statute. It was pointed out by this Court in Bhagwan Dass case C. A. No. 1617 of 1968,D/- 27-9-1968 = (AIR 1970 SC 971 ) that the Legislature had provided for a decree for eviction of a tenant passed before the commencement of the Act liable to be rendered inexecutable unless it was based on any of the grounds mentioned in sub-s. (3). The Legislature might, if so advised, have provided for a similar result in a case where the State Government had revoked the permission to sue granted by the Commissioner.9. It was also pointed out in Bhagwan Dass case, C. A. No. 1617 of 1968, D/- 27-9-1968 = (AIR 1970 SC 971 ) that it would make a mockery of the judicial process if we were to hold on the language of the sections as they stand at present, that irrespective of a decree being passed by the trial court being upheld in appeal by the High Court or by this Court, the order of the State Government would nullify all proceedings.10. There is nothing in the judgment of this Court in Bhagwan v. Ram Chand, 1965-3 SCR 218 = (AIR 1965 SC 1767 ) read with section 16 of the Act which would incline us to come to any different conclusion. On the strength of the decision in that case read in the light of S. 16, it was argued that the order of the State Government being quasi-judicial in nature S. 16 (inset)*placed the order of the State Government beyond the pale of scrutiny by a court of law. We cannot see any force in this argument. The permission to sue given by the Commissioner has no effect on the course of the trial of the issues involved in that suit. That permission is only a prerequisite to a suit as a notice under S. 80 of the Code of Civil Procedure. The court trying the suit for eviction has to find out whether a proper notice to quit was given and whether the tenancy was properly determined. It must also examine the grounds on the basis of which the landlord seeks to evict the tenant and decide for itself whether such grounds exist. Neither the District Magistrate for the Commissioner nor the State Government is obliged to disclose any reasons which may influence the said authorities in coming to their decision and the court is not called upon to examine whether the conclusion of any of the said authorities was properly arrived at.*Section 16. - Orders under the Act not to be questioned in any Court - No order made under this Act by the State Government or the District Magistrate shall be called in question in any Court.11. Learned counsel for the appellant would have us hold that S. 16 ousted the jurisdiction of the court to consider the propriety of any order of the State Government. In our view, that is not the effect of that section. The decision in 1965-3 SCR 218 = (AIR 1965 SC 1767 ) (supra) shows thatthe State Government must offer a reasonable opportunity to both the parties while it exercises its jurisdiction under S. 7-F and an order which is made in violation of the principles of natural justice may be quashed. Once the jurisdiction under S. 16 (7-F?) is properly exercised the court cannot examine the propriety of the order made thereunder.12. In our view, as already pointed out, jurisdiction under Section 7-F is only exercisable at a point of time anterior to the filing of a suit and Courts of law can therefore disregard any order under that section which is made after the filing of a suit.
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7. Apart from the above consideration, the words of S. 7-F in our opinion, indicate that the State Government can only exercise its jurisdiction to revise the order of the Commissioner before the actual institution of the suit. The language of S. 7-F shows that on the facts of the case before it the State Government must consider whether the grant of or refusal to grant permission for the filing of a suit should be upheld or not. The section does not seem to be aimed at invalidating a suit already instituted and can only operate at a stage before the landlord launches his proceeding. There is nothing in sub-s. (4) of S. 3 read with S. 7-F to show that a landlord should wait till the powers of the revising authorities have been exhausted.It the Legislature had so intended, it could have used words in sub-section (1) of S. 3 to indicate that the grant of permission by the District magistrate would also be subject to an order under S. 7-F. The same result might have been achieved by providing for the stay of a suit in case the State Government made an order under S. 7-F contrary to that of the Commissioner.8. Once a suit is validly instituted it must take its course and the decree passed therein must be given effect to unless the words of the statute render the decree inexecutable or liable to re-opening in a proper case on grounds mentioned in the statute. It was pointed out by this Court in Bhagwan Dass case C. A. No. 1617 of 1968,D/- 27-9-1968 = (AIR 1970 SC 971 ) that the Legislature had provided for a decree for eviction of a tenant passed before the commencement of the Act liable to be rendered inexecutable unless it was based on any of the grounds mentioned in sub-s. (3). The Legislature might, if so advised, have provided for a similar result in a case where the State Government had revoked the permission to sue granted by the Commissioner.9. It was also pointed out in Bhagwan Dass case, C. A. No. 1617 of 1968, D/- 27-9-1968 = (AIR 1970 SC 971 ) that it would make a mockery of the judicial process if we were to hold on the language of the sections as they stand at present, that irrespective of a decree being passed by the trial court being upheld in appeal by the High Court or by this Court, the order of the State Government would nullify all proceedings.10. There is nothing in the judgment of this Court in Bhagwan v. Ram Chand, 1965-3 SCR 218 = (AIR 1965 SC 1767 ) read with section 16 of the Act which would incline us to come to any different conclusion. On the strength of the decision in that case read in the light of S. 16, it was argued that the order of the State Government being quasi-judicial in nature S. 16 (inset)*placed the order of the State Government beyond the pale of scrutiny by a court of law. We cannot see any force in this argument. The permission to sue given by the Commissioner has no effect on the course of the trial of the issues involved in that suit. That permission is only a prerequisite to a suit as a notice under S. 80 of theCode of Civil Procedure. The court trying the suit for eviction has to find out whether a proper notice to quit was given and whether the tenancy was properly determined. It must also examine the grounds on the basis of which the landlord seeks to evict the tenant and decide for itself whether such grounds exist. Neither the District Magistrate for the Commissioner nor the State Government is obliged to disclose any reasons which may influence the said authorities in coming to their decision and the court is not called upon to examine whether the conclusion of any of the said authorities was properly arrivedour view, that is not the effect of that section. The decision in 1965-3 SCR 218 = (AIR 1965 SC 1767 ) (supra) shows thatthe State Government must offer a reasonable opportunity to both the parties while it exercises its jurisdiction under S. 7-F and an order which is made in violation of the principles of natural justice may be quashed. Once the jurisdiction under S. 16 (7-F?) is properly exercised the court cannot examine the propriety of the order made thereunder.12. In our view, as already pointed out, jurisdiction under Section 7-F is only exercisable at a point of time anterior to the filing of a suit and Courts of law can therefore disregard any order under that section which is made after the filing of aour view, that is not the effect of that section. The decision inSCR 218 = (AIR 1965 SC 1767 ) (supra) shows thatthe State Government must offer a reasonable opportunity to both the parties while it exercises its jurisdiction under S.and an order which is made in violation of the principles of natural justice may be quashed. Once the jurisdiction under S. 16is properly exercised the court cannot examine the propriety of the order madeour view, that is not the effect of that section. The decision inSCR 218 = (AIR 1965 SC 1767 ) (supra) shows thatthe State Government must offer a reasonable opportunity to both the parties while it exercises its jurisdiction under S.and an order which is made in violation of the principles of natural justice may be quashed. Once the jurisdiction under S. 16thereunder.12. In our view, as already pointed out, jurisdiction under Sectionis only exercisable at a point of time anterior to the filing of a suit and Courts of law can therefore disregard any order under that section which is made after the filing of a
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Nalanikant Ramadas Gujjar Vs. Tulasibai (Dead) By L.Rs.& Ors | thereon at that time. But the Binny Company had taken the said land for making construction over the same for installing ginning and pressing machines and in fact a building was constructed on the said piece of land in which ginning and pressing machines were installed. In this background, when the Bombay Rent Act came in force the leasehold area was not being used for agricultural purposes. 6. From the judgment in the case of Mst. Subhadra, (supra) it appears that the owner of a certain plot of land granted a perpetual lease to some persons who sublet it to the respondent of that case on a higher rent. In the deed of lease it had been recited that the lessee might construct buildings on the land after obtaining sanction of the appropriate authority. The appellant of that case obtained sanction of the Collector for conversion of user of the land to non-agricultural purposes. Thereafter standard rent of the plot under Section 11 of the Bombay Rent Act was fixed. It was said by this Court: (Para 2). "It is common ground that till November 11, 1949, the plot was assessed for agricultural purposes under the Bombay Land Revenue Code. In the year 1947, the plot was undoubtedly lying fallow, but on that account, the user of the land cannot be deemed to be altered. User of the land could only be altered by the order of the Collector granted under Section 65 of the Bombay Land Revenue Code. Section 11 of the Bombay Act 57 of 1947 enables a competent Court upon application made to it for that purpose to fix standard rent of any premises. But Section 11 is in Part II of the Act and by Section 6 Cl. (1), it is provided that in areas specified in Schedule I, Part II applies to premises let for residence, education, business, trade or storage. There is no dispute that Part II applied to the area in which the plot is situate; but before the appellant could maintain an application for fixation of standard rent under Section 11, she had to establish that the plot of land leased was "premises within the meaning of Section 5(8) of the Act and that it was let for residence, education, business, trade of storage. It was further said that material date for ascertaining whether the plot is premises for purpose of Section 6 is the date of letting and not the date on which the application for fixation of standard rent was made by tenant or the landlord. 7. In the case of Vasudev Dhanjibhai Modi, (supra), the appellant before this court was the landlord of certain premises in Ahmadabad, who filed a suit for ejectment, which was ultimately decreed, During the execution of the decree a stand was taken by the defendant that the provisions of the Bombay Rent Act were not applicable to the premises because the land was leased out for agricultural purposes. While allowing the appeal of the landlord, this Court said:- (Para 4). "It is plain that the Court exercising power under the Bombay Rents, Hotel & Lodging House Rates (Control) Act, 1947, has no jurisdictions to entertain a suit for possession of land used for agricultural purposes. Again in ascertaining whether the land demised is used for agricultural purposes, the crucial date is date on which the right conferred by the Act is sought to be exercised. This Court expressed the opinion in the case of Vasudev Dhanjibhai Mode, (supra), that whether the provisions of the Bombay Rent Act shall be applicable or not, the crucial date for ascertaining the nature of the use of the land in question shall be the date when the rights under the aforesaid Act are to be exercised. 8. In the case of Mst. Subhadra, (supra), the land which had been let out for agricultural purpose, no construction whatsoever appears to have been made on the same. The landlord only got an order of conversion on basis whereof he filed a petition for fixation of standard rent of the plot under the provisions of the Bombay Rent Act. So far the case of Vasudev Dhanjibhai Mode, (supra), is concerned on the land which had been leased out, construction had been made from which eviction was being sought by the landlord and in that context it was said that the crucial date for ascertaining whether the provisions of the Bombay Rent Act shall be applicable or not, shall be the date when the right under the Act was sought to be exercised. So far the facts of the present case are concerned, the lease had been granted to the Binny Company for installing ginning and processing machines and admittedly a building was constructed in which ginning and processing machines were installed and godown was also constructed. Once a piece of land which was agricultural in nature is put to non-agricultural use, it shall be covered by the definition of premises under Section 5(8) of the Bombay Rent Act. It need not be impressed that clause (a) of Section 5(8) excludes from the definition of premises "any land not being used for agricultural purposes. The words not being used are significant. It can be said that the framers of the Act for applying the provisions of the said Act in the definition of premises indicated that the crucial date shall be the date when the right conferred under the Act is sought to be exercised. There being no dispute in the present case that the land had been put to non-agricultural use several decades before coming into force of the Bombay Rent Act, the provisions of the said Act were applicable. We are in respectful agreement with the views expressed in the case of Vasudev Dhanjibhai Modi, (supra). 9. The High Court was justified in coming to the conclusion that it was a premises within the meaning of Section 5(8) of the aforesaid Act and provisions of the said Act were applicable. | 0[ds]From a plain reading of the definition of premises in the aforesaid Act it is apparent that it shall not include any land used for agricultural purposes but certainly shall include any land which is not being used for agricultural purposes. From the records it appears that there is no dispute that when the lease was granted in favour of the Binny Company as early as in the year 1889, it was an open site having no building thereon at that time. But the Binny Company had taken the said land for making construction over the same for installing ginning and pressing machines and in fact a building was constructed on the said piece of land in which ginning and pressing machines were installed. In this background, when the Bombay Rent Act came in force the leasehold area was not being used for agricultural purposes.In the case of Mst. Subhadra, (supra), the land which had been let out for agricultural purpose, no construction whatsoever appears to have been made on the same. The landlord only got an order of conversion on basis whereof he filed a petition for fixation of standard rent of the plot under the provisions of the Bombay Rent Act. So far the case of Vasudev Dhanjibhai Mode, (supra), is concerned on the land which had been leased out, construction had been made from which eviction was being sought by the landlord and in that context it was said that the crucial date for ascertaining whether the provisions of the Bombay Rent Act shall be applicable or not, shall be the date when the right under the Act was sought to be exercised. So far the facts of the present case are concerned, the lease had been granted to the Binny Company for installing ginning and processing machines and admittedly a building was constructed in which ginning and processing machines were installed and godown was also constructed. Once a piece of land which was agricultural in nature is put to non-agricultural use, it shall be covered by the definition of premises under Section 5(8) of the Bombay Rent Act. It need not be impressed that clause (a) of Section 5(8) excludes from the definition of premises "any land not being used for agricultural purposes. The words not being used are significant. It can be said that the framers of the Act for applying the provisions of the said Act in the definition of premises indicated that the crucial date shall be the date when the right conferred under the Act is sought to be exercised. There being no dispute in the present case that the land had been put to non-agricultural use several decades before coming into force of the Bombay Rent Act, the provisions of the said Act were applicable. We are in respectful agreement with the views expressed in the case of Vasudev Dhanjibhai Modi, (supra).The High Court was justified in coming to the conclusion that it was a premises within the meaning of Section 5(8) of the aforesaid Act and provisions of the said Act were applicable. | 0 | 1,807 | 563 | ### Instruction:
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thereon at that time. But the Binny Company had taken the said land for making construction over the same for installing ginning and pressing machines and in fact a building was constructed on the said piece of land in which ginning and pressing machines were installed. In this background, when the Bombay Rent Act came in force the leasehold area was not being used for agricultural purposes. 6. From the judgment in the case of Mst. Subhadra, (supra) it appears that the owner of a certain plot of land granted a perpetual lease to some persons who sublet it to the respondent of that case on a higher rent. In the deed of lease it had been recited that the lessee might construct buildings on the land after obtaining sanction of the appropriate authority. The appellant of that case obtained sanction of the Collector for conversion of user of the land to non-agricultural purposes. Thereafter standard rent of the plot under Section 11 of the Bombay Rent Act was fixed. It was said by this Court: (Para 2). "It is common ground that till November 11, 1949, the plot was assessed for agricultural purposes under the Bombay Land Revenue Code. In the year 1947, the plot was undoubtedly lying fallow, but on that account, the user of the land cannot be deemed to be altered. User of the land could only be altered by the order of the Collector granted under Section 65 of the Bombay Land Revenue Code. Section 11 of the Bombay Act 57 of 1947 enables a competent Court upon application made to it for that purpose to fix standard rent of any premises. But Section 11 is in Part II of the Act and by Section 6 Cl. (1), it is provided that in areas specified in Schedule I, Part II applies to premises let for residence, education, business, trade or storage. There is no dispute that Part II applied to the area in which the plot is situate; but before the appellant could maintain an application for fixation of standard rent under Section 11, she had to establish that the plot of land leased was "premises within the meaning of Section 5(8) of the Act and that it was let for residence, education, business, trade of storage. It was further said that material date for ascertaining whether the plot is premises for purpose of Section 6 is the date of letting and not the date on which the application for fixation of standard rent was made by tenant or the landlord. 7. In the case of Vasudev Dhanjibhai Modi, (supra), the appellant before this court was the landlord of certain premises in Ahmadabad, who filed a suit for ejectment, which was ultimately decreed, During the execution of the decree a stand was taken by the defendant that the provisions of the Bombay Rent Act were not applicable to the premises because the land was leased out for agricultural purposes. While allowing the appeal of the landlord, this Court said:- (Para 4). "It is plain that the Court exercising power under the Bombay Rents, Hotel & Lodging House Rates (Control) Act, 1947, has no jurisdictions to entertain a suit for possession of land used for agricultural purposes. Again in ascertaining whether the land demised is used for agricultural purposes, the crucial date is date on which the right conferred by the Act is sought to be exercised. This Court expressed the opinion in the case of Vasudev Dhanjibhai Mode, (supra), that whether the provisions of the Bombay Rent Act shall be applicable or not, the crucial date for ascertaining the nature of the use of the land in question shall be the date when the rights under the aforesaid Act are to be exercised. 8. In the case of Mst. Subhadra, (supra), the land which had been let out for agricultural purpose, no construction whatsoever appears to have been made on the same. The landlord only got an order of conversion on basis whereof he filed a petition for fixation of standard rent of the plot under the provisions of the Bombay Rent Act. So far the case of Vasudev Dhanjibhai Mode, (supra), is concerned on the land which had been leased out, construction had been made from which eviction was being sought by the landlord and in that context it was said that the crucial date for ascertaining whether the provisions of the Bombay Rent Act shall be applicable or not, shall be the date when the right under the Act was sought to be exercised. So far the facts of the present case are concerned, the lease had been granted to the Binny Company for installing ginning and processing machines and admittedly a building was constructed in which ginning and processing machines were installed and godown was also constructed. Once a piece of land which was agricultural in nature is put to non-agricultural use, it shall be covered by the definition of premises under Section 5(8) of the Bombay Rent Act. It need not be impressed that clause (a) of Section 5(8) excludes from the definition of premises "any land not being used for agricultural purposes. The words not being used are significant. It can be said that the framers of the Act for applying the provisions of the said Act in the definition of premises indicated that the crucial date shall be the date when the right conferred under the Act is sought to be exercised. There being no dispute in the present case that the land had been put to non-agricultural use several decades before coming into force of the Bombay Rent Act, the provisions of the said Act were applicable. We are in respectful agreement with the views expressed in the case of Vasudev Dhanjibhai Modi, (supra). 9. The High Court was justified in coming to the conclusion that it was a premises within the meaning of Section 5(8) of the aforesaid Act and provisions of the said Act were applicable.
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### Explanation:
From a plain reading of the definition of premises in the aforesaid Act it is apparent that it shall not include any land used for agricultural purposes but certainly shall include any land which is not being used for agricultural purposes. From the records it appears that there is no dispute that when the lease was granted in favour of the Binny Company as early as in the year 1889, it was an open site having no building thereon at that time. But the Binny Company had taken the said land for making construction over the same for installing ginning and pressing machines and in fact a building was constructed on the said piece of land in which ginning and pressing machines were installed. In this background, when the Bombay Rent Act came in force the leasehold area was not being used for agricultural purposes.In the case of Mst. Subhadra, (supra), the land which had been let out for agricultural purpose, no construction whatsoever appears to have been made on the same. The landlord only got an order of conversion on basis whereof he filed a petition for fixation of standard rent of the plot under the provisions of the Bombay Rent Act. So far the case of Vasudev Dhanjibhai Mode, (supra), is concerned on the land which had been leased out, construction had been made from which eviction was being sought by the landlord and in that context it was said that the crucial date for ascertaining whether the provisions of the Bombay Rent Act shall be applicable or not, shall be the date when the right under the Act was sought to be exercised. So far the facts of the present case are concerned, the lease had been granted to the Binny Company for installing ginning and processing machines and admittedly a building was constructed in which ginning and processing machines were installed and godown was also constructed. Once a piece of land which was agricultural in nature is put to non-agricultural use, it shall be covered by the definition of premises under Section 5(8) of the Bombay Rent Act. It need not be impressed that clause (a) of Section 5(8) excludes from the definition of premises "any land not being used for agricultural purposes. The words not being used are significant. It can be said that the framers of the Act for applying the provisions of the said Act in the definition of premises indicated that the crucial date shall be the date when the right conferred under the Act is sought to be exercised. There being no dispute in the present case that the land had been put to non-agricultural use several decades before coming into force of the Bombay Rent Act, the provisions of the said Act were applicable. We are in respectful agreement with the views expressed in the case of Vasudev Dhanjibhai Modi, (supra).The High Court was justified in coming to the conclusion that it was a premises within the meaning of Section 5(8) of the aforesaid Act and provisions of the said Act were applicable.
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