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Luhar Amrit Lal Nagji Vs. Doshi Jayantilal Jetralal And Others | in dealing with questions of Hindu Law, the Privy Council introducted considerations of justice, equity and good conscience and the interpretation of the relevant texts sometimes was influenced by these considerations. In fact, the principle about the binding character of the antecedent debts of the father and the provisions about the enquiry to be made by the creditor have all been introduced on considerations of equity and fair play. When the Privy Council laid down the two propositions in the case of Suraj Bunsi Koer, 6 Ind App 88 (PC), what was really intended was to protect the bona fide alienees, against frivolous or collusive claims made by the debtors sons challenging the transaction. Since the said propositions have been laid down with the object of doing justice to the claims of bona fide alienees, we do not see any justification for disturbing this well-established position on academic considerations which may perhaps arise if we were to look for guidance to the ancient texts today. In our opinion, if there are any anomalies in the administration of this branch of Hindu Law their solution lies with the legislature and not with the Courts. What the commentators attempted to do in the past can now be effectively achieved by the adoption of the legislative process. Therefore, we are not prepared to accede to the appellants argument that we should attempt to decide the point raised by them purely in the light of ancient Sanskrit texts. 20. It now remains to consider some of the decisions to which our attention was invited. In P. Lakshmanaswami v. T. P. T. Raghavacharyulu, AIR 1943 Mad 292 , the Madras High Court was dealing with the debt contracted by the father on a promissory note executed by him for the payment to his concubine for meeting the expenses of her grand-daughters marriage. The sons had no difficulty in proving that the debt was immoral; but it was urged on behalf of the creditor that the sons could not succeed unless the creditors knowledge about the immoral character of the debt had been established, and reliance was apparently placed upon the two propositions laid down by the Privy Council in the case of Suraj Bunsi Koer, 6 Ind App 88 (PC). This plea was rejected by the High Court. Patanjali Sastri, J., as he then was, who delivered the judgment for the Court observed that"the remarks made by the Privy Council had reference to family property sold in execution of a decree obtained against the father as to which different considerations arise, the bona fide purchaser not being bound to go further back than the decree." In other words, this decision shows that the principles which apply to alienations made by a Hindu father to satisfy his antecedent debts cannot be extended and invoked to cases where the sons are challenging the binding character of the debts which are not antecedent and are in fact immoral. 21. The Allahabad High Court has had occasion to consider different aspects of this problem in several cases, and different, if not somewhat conflicting, views appear to have been taken in some of the decisions. We will, however, refer to only two decisions which are directly in point. In Kishan Lal v. Garuruddhwaja Prasad Singh, ILR 21 All 238, Burkitt J., has observed that had it been proved that the debt had been contracted for immoral purpose and that the person who advanced the money was aware of the purpose for which it was being borrowed the son would not have been liable. This, however, is a bare statement of the law, and the judgment does not contain any discussion on the merits of the proposition laid down by the judge nor does it cite the relevant judicial decisions bearing on the point. In Maharaj Singh v. Balwant Singh, ILR 28 All 508, the same High Court was dealing with a mortgage by Sheoraj Singh to pay the antecedent debts of the father. Maharaj Singh, the younger brother, also joined in the execution of the document. It was, however, found that at the material time Maharaj Singh was a minor and so the mortgage was, as regards his interest in the mortgaged property, absolutely void. This finding was enough to reject the mortgagees claim against the share of Maharaj Singh in the mortgaged property; but the High Court proceeded to consider the alternative ground urged by Maharaj Singh and held that it was not necessary for Maharaj Singh to prove notice of the immoral character of the antecedent debt because the ancestral property in question had not passed out of the hands of the joint family. Maharaj Singh was defending his title; he was not a plaintiff seeking to recover property but a defender of his interest in ancestral property of which he was in possession. These observations show that the High Court took the view that propositions laid down in the case of Suraj Bunsi Koer, 6 Ind App 88 (PC), would not apply to cases of mortgage but were confined to cases of purchase.We do not think that the distinction between a purchase and a mortgage made in this decision is well founded. The propositions in question treated an alienation made for the payment of the fathers antecedent debt on the same footing as an alienation made in execution of a decree passed against him and in both cases the principle enunciated is that in order to succeed in their challenge the sons must prove the immoral character of the antecedent debt and the knowledge of the alienee.Having regard to the broad language used in stating the two propositions we do not think that a valid distinction could be made between a mortgage and a sale particularly after the decision of the Privy Council in the case of Brij Narain, 51 Ind App 129: (AIR 1924 PC 50. That is the view taken by the Nagpur High Court in Udmiram Koroodimal v. Balramdas Tularam, AIR 1956 Nag 76. | 0[ds]7. The doctrine of pious obligation under which sons are held liable to discharge their fathers debts is based solely on religious considerations; it is thought that if a persons debts are not paid and he dies in a state of indebtedness his soul may have to face evil consequences, and it is the duty of his sons to save him from such evil consequences. The basis of the doctrine is thus spiritual and its sole object is to confer spiritual benefits on the father. It is not intended in any sense for the benefit of the creditor17. We have carefully considered this matter and we are not disposed to answer this question in favour of the appellants.First and foremost in cases of this character the principle of stare decisis must inevitably come into operation. For a number of years transactions as to immovable property belonging to Hindu families have taken place and titles passed in favour of alienees on the understanding that the proposition of law laid down by the Privy Council in the case of Suraj Bunsi Koer, 6 Ind App 88 (PC), correctly represent the true position under Hindu Law in that behalf. It would, we think, be inexpedient to reopen this question after such a long lapse of time18. Besides it would not be easy to decide today what the relevant Sanskrit texts really provide in this matter. It is well-known that though the Smriti texts are given a place of pride among the sources of Hindu Law, in the development of Hindu Law sadachar or approved conduct, which is another source has played an important part*. The existence of different schools of Hindu Law and sub-schools clearly brings out the fact that during the ages Hindu Law has made changes so as to absorb varying customs and usages in different places from time to time. It is a remarkable feature of the growth of Hindu Law that, by a skilful adoption of rules of construction, commentators successfully attempted to bridge the distance between the letter of the Smriti texts and the existing customs and usages in different areas and at different times. This process was arrested under the British Rule; but if we were to decide today what the true position under Hindu Law texts is on the point with which we are concerned, it would be very difficult to reconcile the different texts and come to a definite conclusion. In this branch of the law several considerations have been introduced by judicial decisions which have substantially now become a part and parcel of Hindu Law as it is administered;it would, therefore not be easy to disengage the said considerations and seek to ascertain the true effect of the relevant provisions contained in ancient texts considered by themselves19. It is also well known that, in dealing with questions of Hindu Law, the Privy Council introducted considerations of justice, equity and good conscience and the interpretation of the relevant texts sometimes was influenced by these considerations. In fact, the principle about the binding character of the antecedent debts of the father and the provisions about the enquiry to be made by the creditor have all been introduced on considerations of equity and fair play. When the Privy Council laid down the two propositions in the case of Suraj Bunsi Koer, 6 Ind App 88 (PC), what was really intended was to protect the bona fide alienees, against frivolous or collusive claims made by the debtors sons challenging the transaction. Since the said propositions have been laid down with the object of doing justice to the claims of bona fide alienees, we do not see any justification for disturbing this well-established position on academic considerations which may perhaps arise if we were to look for guidance to the ancient texts today. In our opinion, if there are any anomalies in the administration of this branch of Hindu Law their solution lies with the legislature and not with the Courts. What the commentators attempted to do in the past can now be effectively achieved by the adoption of the legislative process. Therefore, we are not prepared to accede to the appellants argument that we should attempt to decide the point raised by them purely in the light of ancient Sanskrit texts. | 0 | 6,073 | 767 | ### 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:
in dealing with questions of Hindu Law, the Privy Council introducted considerations of justice, equity and good conscience and the interpretation of the relevant texts sometimes was influenced by these considerations. In fact, the principle about the binding character of the antecedent debts of the father and the provisions about the enquiry to be made by the creditor have all been introduced on considerations of equity and fair play. When the Privy Council laid down the two propositions in the case of Suraj Bunsi Koer, 6 Ind App 88 (PC), what was really intended was to protect the bona fide alienees, against frivolous or collusive claims made by the debtors sons challenging the transaction. Since the said propositions have been laid down with the object of doing justice to the claims of bona fide alienees, we do not see any justification for disturbing this well-established position on academic considerations which may perhaps arise if we were to look for guidance to the ancient texts today. In our opinion, if there are any anomalies in the administration of this branch of Hindu Law their solution lies with the legislature and not with the Courts. What the commentators attempted to do in the past can now be effectively achieved by the adoption of the legislative process. Therefore, we are not prepared to accede to the appellants argument that we should attempt to decide the point raised by them purely in the light of ancient Sanskrit texts. 20. It now remains to consider some of the decisions to which our attention was invited. In P. Lakshmanaswami v. T. P. T. Raghavacharyulu, AIR 1943 Mad 292 , the Madras High Court was dealing with the debt contracted by the father on a promissory note executed by him for the payment to his concubine for meeting the expenses of her grand-daughters marriage. The sons had no difficulty in proving that the debt was immoral; but it was urged on behalf of the creditor that the sons could not succeed unless the creditors knowledge about the immoral character of the debt had been established, and reliance was apparently placed upon the two propositions laid down by the Privy Council in the case of Suraj Bunsi Koer, 6 Ind App 88 (PC). This plea was rejected by the High Court. Patanjali Sastri, J., as he then was, who delivered the judgment for the Court observed that"the remarks made by the Privy Council had reference to family property sold in execution of a decree obtained against the father as to which different considerations arise, the bona fide purchaser not being bound to go further back than the decree." In other words, this decision shows that the principles which apply to alienations made by a Hindu father to satisfy his antecedent debts cannot be extended and invoked to cases where the sons are challenging the binding character of the debts which are not antecedent and are in fact immoral. 21. The Allahabad High Court has had occasion to consider different aspects of this problem in several cases, and different, if not somewhat conflicting, views appear to have been taken in some of the decisions. We will, however, refer to only two decisions which are directly in point. In Kishan Lal v. Garuruddhwaja Prasad Singh, ILR 21 All 238, Burkitt J., has observed that had it been proved that the debt had been contracted for immoral purpose and that the person who advanced the money was aware of the purpose for which it was being borrowed the son would not have been liable. This, however, is a bare statement of the law, and the judgment does not contain any discussion on the merits of the proposition laid down by the judge nor does it cite the relevant judicial decisions bearing on the point. In Maharaj Singh v. Balwant Singh, ILR 28 All 508, the same High Court was dealing with a mortgage by Sheoraj Singh to pay the antecedent debts of the father. Maharaj Singh, the younger brother, also joined in the execution of the document. It was, however, found that at the material time Maharaj Singh was a minor and so the mortgage was, as regards his interest in the mortgaged property, absolutely void. This finding was enough to reject the mortgagees claim against the share of Maharaj Singh in the mortgaged property; but the High Court proceeded to consider the alternative ground urged by Maharaj Singh and held that it was not necessary for Maharaj Singh to prove notice of the immoral character of the antecedent debt because the ancestral property in question had not passed out of the hands of the joint family. Maharaj Singh was defending his title; he was not a plaintiff seeking to recover property but a defender of his interest in ancestral property of which he was in possession. These observations show that the High Court took the view that propositions laid down in the case of Suraj Bunsi Koer, 6 Ind App 88 (PC), would not apply to cases of mortgage but were confined to cases of purchase.We do not think that the distinction between a purchase and a mortgage made in this decision is well founded. The propositions in question treated an alienation made for the payment of the fathers antecedent debt on the same footing as an alienation made in execution of a decree passed against him and in both cases the principle enunciated is that in order to succeed in their challenge the sons must prove the immoral character of the antecedent debt and the knowledge of the alienee.Having regard to the broad language used in stating the two propositions we do not think that a valid distinction could be made between a mortgage and a sale particularly after the decision of the Privy Council in the case of Brij Narain, 51 Ind App 129: (AIR 1924 PC 50. That is the view taken by the Nagpur High Court in Udmiram Koroodimal v. Balramdas Tularam, AIR 1956 Nag 76.
### Response:
0
### Explanation:
7. The doctrine of pious obligation under which sons are held liable to discharge their fathers debts is based solely on religious considerations; it is thought that if a persons debts are not paid and he dies in a state of indebtedness his soul may have to face evil consequences, and it is the duty of his sons to save him from such evil consequences. The basis of the doctrine is thus spiritual and its sole object is to confer spiritual benefits on the father. It is not intended in any sense for the benefit of the creditor17. We have carefully considered this matter and we are not disposed to answer this question in favour of the appellants.First and foremost in cases of this character the principle of stare decisis must inevitably come into operation. For a number of years transactions as to immovable property belonging to Hindu families have taken place and titles passed in favour of alienees on the understanding that the proposition of law laid down by the Privy Council in the case of Suraj Bunsi Koer, 6 Ind App 88 (PC), correctly represent the true position under Hindu Law in that behalf. It would, we think, be inexpedient to reopen this question after such a long lapse of time18. Besides it would not be easy to decide today what the relevant Sanskrit texts really provide in this matter. It is well-known that though the Smriti texts are given a place of pride among the sources of Hindu Law, in the development of Hindu Law sadachar or approved conduct, which is another source has played an important part*. The existence of different schools of Hindu Law and sub-schools clearly brings out the fact that during the ages Hindu Law has made changes so as to absorb varying customs and usages in different places from time to time. It is a remarkable feature of the growth of Hindu Law that, by a skilful adoption of rules of construction, commentators successfully attempted to bridge the distance between the letter of the Smriti texts and the existing customs and usages in different areas and at different times. This process was arrested under the British Rule; but if we were to decide today what the true position under Hindu Law texts is on the point with which we are concerned, it would be very difficult to reconcile the different texts and come to a definite conclusion. In this branch of the law several considerations have been introduced by judicial decisions which have substantially now become a part and parcel of Hindu Law as it is administered;it would, therefore not be easy to disengage the said considerations and seek to ascertain the true effect of the relevant provisions contained in ancient texts considered by themselves19. It is also well known that, in dealing with questions of Hindu Law, the Privy Council introducted considerations of justice, equity and good conscience and the interpretation of the relevant texts sometimes was influenced by these considerations. In fact, the principle about the binding character of the antecedent debts of the father and the provisions about the enquiry to be made by the creditor have all been introduced on considerations of equity and fair play. When the Privy Council laid down the two propositions in the case of Suraj Bunsi Koer, 6 Ind App 88 (PC), what was really intended was to protect the bona fide alienees, against frivolous or collusive claims made by the debtors sons challenging the transaction. Since the said propositions have been laid down with the object of doing justice to the claims of bona fide alienees, we do not see any justification for disturbing this well-established position on academic considerations which may perhaps arise if we were to look for guidance to the ancient texts today. In our opinion, if there are any anomalies in the administration of this branch of Hindu Law their solution lies with the legislature and not with the Courts. What the commentators attempted to do in the past can now be effectively achieved by the adoption of the legislative process. Therefore, we are not prepared to accede to the appellants argument that we should attempt to decide the point raised by them purely in the light of ancient Sanskrit texts.
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DEPARTMENT OF MINES AND GEOLOGY STATE OF PUNJAB Vs. STATE LEAVE ENVIRONMENT IMPACT ASSESSMENT AUTHORITY | 1. The subject matter of these Appeals is the order passed by the National Green Tribunal, Principal Bench, New Delhi (hereinafter, ‘the Tribunal?) dismissing the Appeals filed by the Appellant challenging the order dated 09.04.2018 passed by the Respondent. The Review Application filed by the Appellant was also dismissed by the Tribunal. An application was preferred by the Appellant for obtaining environmental clearance under Environment Impact Assessment Notification dated 14.09.2006 (hereinafter, ‘the EIA Notification?) for mining minor minerals (sand) in an area of 12.96 hectares from the river bed of river Satluj in the revenue estate of village Heatewal, Tehsil Jagraon, District Ludhiana. The Appellant submitted the required documents including Form-I, pre-feasibility report, proof of ownership of land, approved mining plan, No Objection Certificate from the concerned District Forest Officer, final District Survey Report and environmental management plan. 2. The State Expert Appraisal Committee (SEAC) considered the application submitted by the Appellant and granted environmental clearance for carrying out mining of minor minerals in the 12.96 hectares. By an order dated 03.05.2017, the environmental clearance was granted under the provisions of EIA Notification, subject to certain conditions that were mentioned therein. 3. The Appellant issued notices dated 03.05.2017 and 13.06.2017 notifying its intention to put up 102 minor mineral mines for auction. On completion of the auction, the Appellant applied to the Respondent for transfer of the mining environmental clearances in favour of the successful bidders of the mining sites. The application filed for transfer of the environmental clearance was taken up by the Respondent in its 125th meeting held on 12.01.2018 in respect of village Heatewal. It was found by the Respondent that: i. Many of the Khasra numbers are located in stream, whereas at the time of filing application for environmental clearance, all the Khasra numbers were shown to be in the river bed of river Satluj and away from the active channel.ii. Some of the Khasra numbers being located in the agricultural land prove that no replenishment may be available. 4. In view of the above, the Respondent issued a notice to the Appellant to show cause why the mining environmental clearance granted earlier should not be revoked. The Appellant submitted its explanation which was considered by the Respondent after which an order dated 09.04.2018 was passed, revoking the environmental clearance granted to the Appellant. Aggrieved thereby, the Appellant filed Appeals before the Tribunal which were dismissed. Review Applications filed by the Appellant were also dismissed by the Tribunal. 5. The Tribunal observed that the cancellation of the environmental clearance was preceded by spot inspection by the Committee constituted by the Sub-Divisional Magistrate, Jagraon on 12.12.2017. The Committee visited the area on 13.12.2017 to verify the facts. The joint demarcation report submitted by the said Committee showed that: i. Most of the land is under flood protection ‘Bundhs/Spurs?. Also, part of the land is adjoining the flood protection ‘Bundh?.ii. Part of the land being under private cultivation proves that replenishment may not be available. 6. As the revocation of the environmental clearance was on the basis of a joint demarcation report, the Tribunal declined to interfere. 7. The learned counsel for the Respondent took us through the basic information provided by the Appellant while making an application for environmental clearance in which it was stated that the proposed mining lease area is a part of the river bed of river Satluj and no agricultural land was involved. He also referred to the pre-feasibility report in which it was mentioned by the Appellant that the land was situated in the river bed of the river Satluj and the proposed activity was to take place in the dry part of the river bed and hence there would be no change in the land used. It was further mentioned in the said report that the excavated material will get replenished in every monsoon season. 8. The revocation of the environmental clearance and rejection of the application filed for transfer of the mining environmental clearance is on the following grounds that: i. Many of the Khasra numbers are located in stream, whereas at the time of filing application for environmental clearance, all the Khasra numbers were shown to be in the river bed of river Satluj and away from the active channel. The General Manager-cum-Mining Officer, Ludhiana had clearly marked the mining site as ‘Aks sajra? showing Khasra numbers away from the active channel and stated that no instream mining is to be involved. ii. Some of the Khasra numbers being located in agricultural land proves that no replenishment may be available. 9. The Respondent came to the said conclusion relying on the joint inspection report submitted by the Revenue Department and Mining Department. The Respondent was of the opinion that the appraisal of the application for environmental clearance was on the basis of the information furnished by the Appellant which was contrary to the ground reality as found from the joint demarcation report. 10. After examining the material on record and the submissions made by the learned counsel appearing for the parties, there is no reason to interfere with the order passed by the Tribunal. The order of revocation of the environmental clearance is pursuant to the acceptance of the report submitted by the Expert Committee constituted by the Sub-Divisional Magistrate, Jagraon. The report shows that the ground reality is different from what was projected by the Appellant in its application for grant of the environmental clearance. | 0[ds]10. After examining the material on record and the submissions made by the learned counsel appearing for the parties, there is no reason to interfere with the order passed by the Tribunal. The order of revocation of the environmental clearance is pursuant to the acceptance of the report submitted by the Expert Committee constituted by the Sub-Divisional Magistrate, Jagraon. The report shows that the ground reality is different from what was projected by the Appellant in its application for grant of the environmental clearance. | 0 | 1,002 | 94 | ### Instruction:
Judge the probable resolution of the case (approval (1) or disapproval (0)), and elaborate on this forecast by extracting and interpreting significant sentences from the proceeding.
### Input:
1. The subject matter of these Appeals is the order passed by the National Green Tribunal, Principal Bench, New Delhi (hereinafter, ‘the Tribunal?) dismissing the Appeals filed by the Appellant challenging the order dated 09.04.2018 passed by the Respondent. The Review Application filed by the Appellant was also dismissed by the Tribunal. An application was preferred by the Appellant for obtaining environmental clearance under Environment Impact Assessment Notification dated 14.09.2006 (hereinafter, ‘the EIA Notification?) for mining minor minerals (sand) in an area of 12.96 hectares from the river bed of river Satluj in the revenue estate of village Heatewal, Tehsil Jagraon, District Ludhiana. The Appellant submitted the required documents including Form-I, pre-feasibility report, proof of ownership of land, approved mining plan, No Objection Certificate from the concerned District Forest Officer, final District Survey Report and environmental management plan. 2. The State Expert Appraisal Committee (SEAC) considered the application submitted by the Appellant and granted environmental clearance for carrying out mining of minor minerals in the 12.96 hectares. By an order dated 03.05.2017, the environmental clearance was granted under the provisions of EIA Notification, subject to certain conditions that were mentioned therein. 3. The Appellant issued notices dated 03.05.2017 and 13.06.2017 notifying its intention to put up 102 minor mineral mines for auction. On completion of the auction, the Appellant applied to the Respondent for transfer of the mining environmental clearances in favour of the successful bidders of the mining sites. The application filed for transfer of the environmental clearance was taken up by the Respondent in its 125th meeting held on 12.01.2018 in respect of village Heatewal. It was found by the Respondent that: i. Many of the Khasra numbers are located in stream, whereas at the time of filing application for environmental clearance, all the Khasra numbers were shown to be in the river bed of river Satluj and away from the active channel.ii. Some of the Khasra numbers being located in the agricultural land prove that no replenishment may be available. 4. In view of the above, the Respondent issued a notice to the Appellant to show cause why the mining environmental clearance granted earlier should not be revoked. The Appellant submitted its explanation which was considered by the Respondent after which an order dated 09.04.2018 was passed, revoking the environmental clearance granted to the Appellant. Aggrieved thereby, the Appellant filed Appeals before the Tribunal which were dismissed. Review Applications filed by the Appellant were also dismissed by the Tribunal. 5. The Tribunal observed that the cancellation of the environmental clearance was preceded by spot inspection by the Committee constituted by the Sub-Divisional Magistrate, Jagraon on 12.12.2017. The Committee visited the area on 13.12.2017 to verify the facts. The joint demarcation report submitted by the said Committee showed that: i. Most of the land is under flood protection ‘Bundhs/Spurs?. Also, part of the land is adjoining the flood protection ‘Bundh?.ii. Part of the land being under private cultivation proves that replenishment may not be available. 6. As the revocation of the environmental clearance was on the basis of a joint demarcation report, the Tribunal declined to interfere. 7. The learned counsel for the Respondent took us through the basic information provided by the Appellant while making an application for environmental clearance in which it was stated that the proposed mining lease area is a part of the river bed of river Satluj and no agricultural land was involved. He also referred to the pre-feasibility report in which it was mentioned by the Appellant that the land was situated in the river bed of the river Satluj and the proposed activity was to take place in the dry part of the river bed and hence there would be no change in the land used. It was further mentioned in the said report that the excavated material will get replenished in every monsoon season. 8. The revocation of the environmental clearance and rejection of the application filed for transfer of the mining environmental clearance is on the following grounds that: i. Many of the Khasra numbers are located in stream, whereas at the time of filing application for environmental clearance, all the Khasra numbers were shown to be in the river bed of river Satluj and away from the active channel. The General Manager-cum-Mining Officer, Ludhiana had clearly marked the mining site as ‘Aks sajra? showing Khasra numbers away from the active channel and stated that no instream mining is to be involved. ii. Some of the Khasra numbers being located in agricultural land proves that no replenishment may be available. 9. The Respondent came to the said conclusion relying on the joint inspection report submitted by the Revenue Department and Mining Department. The Respondent was of the opinion that the appraisal of the application for environmental clearance was on the basis of the information furnished by the Appellant which was contrary to the ground reality as found from the joint demarcation report. 10. After examining the material on record and the submissions made by the learned counsel appearing for the parties, there is no reason to interfere with the order passed by the Tribunal. The order of revocation of the environmental clearance is pursuant to the acceptance of the report submitted by the Expert Committee constituted by the Sub-Divisional Magistrate, Jagraon. The report shows that the ground reality is different from what was projected by the Appellant in its application for grant of the environmental clearance.
### Response:
0
### Explanation:
10. After examining the material on record and the submissions made by the learned counsel appearing for the parties, there is no reason to interfere with the order passed by the Tribunal. The order of revocation of the environmental clearance is pursuant to the acceptance of the report submitted by the Expert Committee constituted by the Sub-Divisional Magistrate, Jagraon. The report shows that the ground reality is different from what was projected by the Appellant in its application for grant of the environmental clearance.
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State of Maharashtra Vs. Niranjan & Others | that he minutely inspected the spot of incident but he did not find any marks of firing. The spot panchnama is at Exhibit-22. Upon careful perusal of the spot panchnama it clearly reveals that nothing objectionable was found on the spot of incident. Therefore, we find considerable force in the argument advanced by the learned counsel appearing for Respondent No.1 that if the incident of firing had really been taken place, then the bullet or the cap of the bullet should have been found on the spot of incident. We further find considerable force in the argument of learned counsel appearing for Respondent No.1 that when it is the case of the prosecution that bullet was fired at the direction of tent, then there should have been hole to the tent. But the prosecution has not brought any evidence on record to show that there was hole to the tent on the spot of incident.14. The trial Court has observed that, in the present case the conduct of the witnesses is very material. According to the prosecution witnesses after they heard the sound, they came out of the tent, still the informant has not narrated the incident to them. The trial Court further observed that, even after the accused No.1 had fired at the informant, the informant did not move from his place, thereby further casting doubts regarding truthfulness of the prosecution story. The trial Court has further observed that accused No.1 had license to carry 25 cartridges and when police had attached the cartridges in the absence of accused No.1 from his house, all 25 cartridges were found. The trial Court has further observed that the said fact clearly discloses that bullet must not have been fired or there would have been one less cartridge which is also circumstance disproving the case of the prosecution. The trial Court, after considering the evidence on record, rightly observed that, if accused and informant never met each other at any time earlier to the incident nor they had any altercation or quarrel before the incident, then there was no necessity or reason for the accused to fire at the person of the informant. After considering the entire evidence brought on record by the prosecution, the trial Court has observed that, it becomes substantially doubtful whether accused had really fired bullet or not and hence they deserve to be given benefit of doubt and hence entitled to be acquitted for the offence punishable under Section 307 of the I.P. Code. Accordingly the trial Court has acquitted the accused persons from the offences with which they were charged.15. After considering the entire evidence brought on record by the prosecution, we are convinced that the finding recorded by the trial Court are in consonance with the evidence brought on record. There is no perversity as such. The view taken by the trial Court is plausible. On independent scrutiny of the evidence also, we find that the evidence of the prosecution witnesses i.e. PW-1 Vairagade and PW-2 Gaikwad is not reliable, as they have stated that before the incident in question, they never met with accused persons and prior to the incident they were not even knowing the names of the accused, and they have stated the names of the accused after getting information from the M.S.E.B. workers. PW-3 Prabhakar, and PW-5 Kacharu Gaikwad had not at all supported the prosecution case as they have stated that they have not witnessed the incident. PW-4 Sudarshan Chaudhari has also not supported the prosecution case and stated in clear terms that at the time of incident, he was not present on the spot of incident. PW-6 Satishkumar Tak, Investigating Officer, admitted during the course of his cross-examination that he had inspected the spot of incident minutely but he did not find any marks of firing on the spot of incident. Therefore considering the evidence of the prosecution witnesses, it is doubtful whether the incident in question had really taken place or not. In that view of the matter, we are unable to persuade ourselves to cause interference in the order of acquittal.16. The Supreme Court in the case of Muralidhar alias Gidda and another Vs. State of Karnataka, 2014 [4] Mh.L.J.[Cri.] 353, in para 12 held thus:"12. The approach of the appellate Court in the appeal against acquittal has been dealt with by this Court in Tulsiram Kanu Vs.State, AIR 1954 SC 1 , Madan Mohan Singh Vs. State of U.P., AIR 1954 SC 637 , Atley Vs. State of U.P., AIR 1955 SC 807 , Aher Raja Khima Vs. State of Saurashtra, AIR 1956 SC 217 , Balbir Singh Vs. State of Punjab, AIR 1957 SC 216 , M.G.Agarwal Vs. State of Maharashtra, AIR 1963 SC 200 , Noor Khan Vs. State of Rajasthan, AIR 1964 SC 286 , Khedu Mohton Vs. State of Bihar, [1970] 2 SCC 450 , Shivaji Sahabrao Bobade Vs. State of Maharashtra, [1973] 2 SCC 793 , Lekha Yadav Vs. State of Bihar, [1973] 2 SCC 424 , Khem Karan Vs. State of U.P., [1974] 4 SCC 603 , Bishan Singh Vs. State of Punjab, [1974] 3 SCC 288 , Umedbhai Jadavbhai Vs. Sate of Gujarat, [1978] 1 SCC 228 , K.Gopal Reddy Vs. State of A.P., [1979] 1 SCC 355 , Tota Singh Vs. State of Punjab, [1987] 2 SCC 529 , Ram Kumar Vs. State of Haryana, 1995 Supp [1] SCC 248, Madan Lal Vs. State of J & K, [1997] 7 SCC 677 , Sambasivan Vs. State of Kerala, [1998] 5 SCC 412 , Bhagwan Singh Vs. State of M.P. [2002] 4 SCC 85 , Harijana Thirupala Vs. Public Prosecutor, High Court of A.P., [2002] 6 SCC 470 , C. Antony Vs. K.G.Raghavan Nair, [2003] 1 SCC 1 , State of Karnataka Vs. K.Gopalakrishna, [2005] 9 SCC 291 , State of Goa Vs. Sanjay Thakran, [2007] 3 SCC 755 and Chandrappa Vs. State of Karnataka, [2007] 4 SCC 415. It is not necessary to deal with these cases individually. | 1[ds]14. The trial Court has observed that, in the present case the conduct of the witnesses is very material. According to the prosecution witnesses after they heard the sound, they came out of the tent, still the informant has not narrated the incident to them. The trial Court further observed that, even after the accused No.1 had fired at the informant, the informant did not move from his place, thereby further casting doubts regarding truthfulness of the prosecution story. The trial Court has further observed that accused No.1 had license to carry 25 cartridges and when police had attached the cartridges in the absence of accused No.1 from his house, all 25 cartridges were found. The trial Court has further observed that the said fact clearly discloses that bullet must not have been fired or there would have been one less cartridge which is also circumstance disproving the case of the prosecution. The trial Court, after considering the evidence on record, rightly observed that, if accused and informant never met each other at any time earlier to the incident nor they had any altercation or quarrel before the incident, then there was no necessity or reason for the accused to fire at the person of the informant. After considering the entire evidence brought on record by the prosecution, the trial Court has observed that, it becomes substantially doubtful whether accused had really fired bullet or not and hence they deserve to be given benefit of doubt and hence entitled to be acquitted for the offence punishable under Section 307 of the I.P. Code. Accordingly the trial Court has acquitted the accused persons from the offences with which they were charged.15. After considering the entire evidence brought on record by the prosecution, we are convinced that the finding recorded by the trial Court are in consonance with the evidence brought on record. There is no perversity as such. The view taken by the trial Court is plausible. On independent scrutiny of the evidence also, we find that the evidence of the prosecution witnesses i.e.Gaikwad is not reliable, as they have stated that before the incident in question, they never met with accused persons and prior to the incident they were not even knowing the names of the accused, and they have stated the names of the accused after getting information from the M.S.E.B. workers.Kacharu Gaikwad had not at all supported the prosecution case as they have stated that they have not witnessed the incident.Sudarshan Chaudhari has also not supported the prosecution case and stated in clear terms that at the time of incident, he was not present on the spot of incident.Satishkumar Tak, Investigating Officer, admitted during the course of histhat he had inspected the spot of incident minutely but he did not find any marks of firing on the spot of incident. Therefore considering the evidence of the prosecution witnesses, it is doubtful whether the incident in question had really taken place or not. In that view of the matter, we are unable to persuade ourselves to cause interference in the order of acquittal. | 1 | 3,560 | 558 | ### 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:
that he minutely inspected the spot of incident but he did not find any marks of firing. The spot panchnama is at Exhibit-22. Upon careful perusal of the spot panchnama it clearly reveals that nothing objectionable was found on the spot of incident. Therefore, we find considerable force in the argument advanced by the learned counsel appearing for Respondent No.1 that if the incident of firing had really been taken place, then the bullet or the cap of the bullet should have been found on the spot of incident. We further find considerable force in the argument of learned counsel appearing for Respondent No.1 that when it is the case of the prosecution that bullet was fired at the direction of tent, then there should have been hole to the tent. But the prosecution has not brought any evidence on record to show that there was hole to the tent on the spot of incident.14. The trial Court has observed that, in the present case the conduct of the witnesses is very material. According to the prosecution witnesses after they heard the sound, they came out of the tent, still the informant has not narrated the incident to them. The trial Court further observed that, even after the accused No.1 had fired at the informant, the informant did not move from his place, thereby further casting doubts regarding truthfulness of the prosecution story. The trial Court has further observed that accused No.1 had license to carry 25 cartridges and when police had attached the cartridges in the absence of accused No.1 from his house, all 25 cartridges were found. The trial Court has further observed that the said fact clearly discloses that bullet must not have been fired or there would have been one less cartridge which is also circumstance disproving the case of the prosecution. The trial Court, after considering the evidence on record, rightly observed that, if accused and informant never met each other at any time earlier to the incident nor they had any altercation or quarrel before the incident, then there was no necessity or reason for the accused to fire at the person of the informant. After considering the entire evidence brought on record by the prosecution, the trial Court has observed that, it becomes substantially doubtful whether accused had really fired bullet or not and hence they deserve to be given benefit of doubt and hence entitled to be acquitted for the offence punishable under Section 307 of the I.P. Code. Accordingly the trial Court has acquitted the accused persons from the offences with which they were charged.15. After considering the entire evidence brought on record by the prosecution, we are convinced that the finding recorded by the trial Court are in consonance with the evidence brought on record. There is no perversity as such. The view taken by the trial Court is plausible. On independent scrutiny of the evidence also, we find that the evidence of the prosecution witnesses i.e. PW-1 Vairagade and PW-2 Gaikwad is not reliable, as they have stated that before the incident in question, they never met with accused persons and prior to the incident they were not even knowing the names of the accused, and they have stated the names of the accused after getting information from the M.S.E.B. workers. PW-3 Prabhakar, and PW-5 Kacharu Gaikwad had not at all supported the prosecution case as they have stated that they have not witnessed the incident. PW-4 Sudarshan Chaudhari has also not supported the prosecution case and stated in clear terms that at the time of incident, he was not present on the spot of incident. PW-6 Satishkumar Tak, Investigating Officer, admitted during the course of his cross-examination that he had inspected the spot of incident minutely but he did not find any marks of firing on the spot of incident. Therefore considering the evidence of the prosecution witnesses, it is doubtful whether the incident in question had really taken place or not. In that view of the matter, we are unable to persuade ourselves to cause interference in the order of acquittal.16. The Supreme Court in the case of Muralidhar alias Gidda and another Vs. State of Karnataka, 2014 [4] Mh.L.J.[Cri.] 353, in para 12 held thus:"12. The approach of the appellate Court in the appeal against acquittal has been dealt with by this Court in Tulsiram Kanu Vs.State, AIR 1954 SC 1 , Madan Mohan Singh Vs. State of U.P., AIR 1954 SC 637 , Atley Vs. State of U.P., AIR 1955 SC 807 , Aher Raja Khima Vs. State of Saurashtra, AIR 1956 SC 217 , Balbir Singh Vs. State of Punjab, AIR 1957 SC 216 , M.G.Agarwal Vs. State of Maharashtra, AIR 1963 SC 200 , Noor Khan Vs. State of Rajasthan, AIR 1964 SC 286 , Khedu Mohton Vs. State of Bihar, [1970] 2 SCC 450 , Shivaji Sahabrao Bobade Vs. State of Maharashtra, [1973] 2 SCC 793 , Lekha Yadav Vs. State of Bihar, [1973] 2 SCC 424 , Khem Karan Vs. State of U.P., [1974] 4 SCC 603 , Bishan Singh Vs. State of Punjab, [1974] 3 SCC 288 , Umedbhai Jadavbhai Vs. Sate of Gujarat, [1978] 1 SCC 228 , K.Gopal Reddy Vs. State of A.P., [1979] 1 SCC 355 , Tota Singh Vs. State of Punjab, [1987] 2 SCC 529 , Ram Kumar Vs. State of Haryana, 1995 Supp [1] SCC 248, Madan Lal Vs. State of J & K, [1997] 7 SCC 677 , Sambasivan Vs. State of Kerala, [1998] 5 SCC 412 , Bhagwan Singh Vs. State of M.P. [2002] 4 SCC 85 , Harijana Thirupala Vs. Public Prosecutor, High Court of A.P., [2002] 6 SCC 470 , C. Antony Vs. K.G.Raghavan Nair, [2003] 1 SCC 1 , State of Karnataka Vs. K.Gopalakrishna, [2005] 9 SCC 291 , State of Goa Vs. Sanjay Thakran, [2007] 3 SCC 755 and Chandrappa Vs. State of Karnataka, [2007] 4 SCC 415. It is not necessary to deal with these cases individually.
### Response:
1
### Explanation:
14. The trial Court has observed that, in the present case the conduct of the witnesses is very material. According to the prosecution witnesses after they heard the sound, they came out of the tent, still the informant has not narrated the incident to them. The trial Court further observed that, even after the accused No.1 had fired at the informant, the informant did not move from his place, thereby further casting doubts regarding truthfulness of the prosecution story. The trial Court has further observed that accused No.1 had license to carry 25 cartridges and when police had attached the cartridges in the absence of accused No.1 from his house, all 25 cartridges were found. The trial Court has further observed that the said fact clearly discloses that bullet must not have been fired or there would have been one less cartridge which is also circumstance disproving the case of the prosecution. The trial Court, after considering the evidence on record, rightly observed that, if accused and informant never met each other at any time earlier to the incident nor they had any altercation or quarrel before the incident, then there was no necessity or reason for the accused to fire at the person of the informant. After considering the entire evidence brought on record by the prosecution, the trial Court has observed that, it becomes substantially doubtful whether accused had really fired bullet or not and hence they deserve to be given benefit of doubt and hence entitled to be acquitted for the offence punishable under Section 307 of the I.P. Code. Accordingly the trial Court has acquitted the accused persons from the offences with which they were charged.15. After considering the entire evidence brought on record by the prosecution, we are convinced that the finding recorded by the trial Court are in consonance with the evidence brought on record. There is no perversity as such. The view taken by the trial Court is plausible. On independent scrutiny of the evidence also, we find that the evidence of the prosecution witnesses i.e.Gaikwad is not reliable, as they have stated that before the incident in question, they never met with accused persons and prior to the incident they were not even knowing the names of the accused, and they have stated the names of the accused after getting information from the M.S.E.B. workers.Kacharu Gaikwad had not at all supported the prosecution case as they have stated that they have not witnessed the incident.Sudarshan Chaudhari has also not supported the prosecution case and stated in clear terms that at the time of incident, he was not present on the spot of incident.Satishkumar Tak, Investigating Officer, admitted during the course of histhat he had inspected the spot of incident minutely but he did not find any marks of firing on the spot of incident. Therefore considering the evidence of the prosecution witnesses, it is doubtful whether the incident in question had really taken place or not. In that view of the matter, we are unable to persuade ourselves to cause interference in the order of acquittal.
|
U.P. Power Corporation Ltd Vs. Rajesh Kumar and Ors | case. ix) The concepts of efficiency, backwardness and inadequacy of representation are required to be identified and measured. That exercise depends on the availability of data. That exercise depends on numerous factors. It is for this reason that the enabling provisions are required to be made because each competing claim seeks to achieve certain goals. How best one should optimize these conflicting claims can only be done by the administration in the context of local prevailing conditions in public employment. x) Article 16(4), therefore, creates a field which enables a State to provide for reservation provided there exists backwardness of a class and inadequacy of representation in employment. These are compelling reasons. They do not exist in Article 16(1). It is only when these reasons are satisfied that a State gets the power to provide for reservation in the matter of employment. 39. At this stage, we think it appropriate to refer to the case of Suraj Bhan Meena and another (supra). In the said case, while interpreting the case in M. Nagaraj (supra), the two-Judge Bench has observed: - 10. In M. Nagaraj case, this Court while upholding the constitutional validity of the Constitution (77thAmendment) Act, 1995 and the Constitution (85th Amendment) Act, 2001, clarified the position that it would not be necessary for the State Government to frame rules in respect of reservation in promotion with consequential seniority, but in case the State Government wanted to frame such rules in this regard, then it would have to satisfy itself by quantifiable data, that there was backwardness, inadequacy of representation in public employment and overall administrative inefficiency and unless such an exercise was undertaken by the State Government, the rule relating to reservation in promotion with consequential seniority could not be introduced. 40. In the said case, the State Government had not undertaken any exercise as indicated in M. Nagaraj (supra). The two-Judge Bench has noted three conditions in the said judgment. It was canvassed before the Bench that exercise to be undertaken as per the direction in M.Nagaraj (supra) was mandatory and the State cannot, either directly or indirectly, circumvent or ignore or refuse to undertake the exercise by taking recourse to the Constitution (Eighty-Fifth Amendment) Act providing for reservation for promotion with consequential seniority. While dealing with the contentions, the two-Judge Bench opined that the State is required to place before the Court the requisite quantifiable data in each case and to satisfy the court that the said reservation became necessary on account of inadequacy of representation of Scheduled Castes and Scheduled Tribes candidates in a particular class or classes of posts, without affecting the general efficiency of service. Eventually, the Bench opined as follows: - 66. The position after the decision in M. Nagaraj case is that reservation of posts in promotion is dependent on the inadequacy of representation of members of the Scheduled Castes and Scheduled Tribes and Backward Classes and subject to the condition of ascertaining as to whether such reservation was at all required. 67. The view of the High Court is based on the decision in M. Nagaraj case as no exercise was undertaken in terms of Article 16(4-A) to acquire quantifiable data regarding the inadequacy of representation of the Schedule Caste and Scheduled Tribe communities in public services. The Rajasthan High Court has rightly quashed the notifications dated 28.12.2002 and 25.4.2008 issued by the State of Rajasthan providing for consequential seniority and promotion to the members of the Scheduled Caste and Scheduled Tribe communities and the same does not call for any interference. After so stating, the two-Judge Bench affirmed the view taken by the High Court of Rajasthan. 41. As has been indicated hereinbefore, it has been vehemently argued by the learned senior counsel for the State and the learned senior counsel for the Corporation that once the principle of reservation was made applicable to the spectrum of promotion, no fresh exercise is necessary. It is also urged that the efficiency in service is not jeopardized. Reference has been made to the Social Justice Committee Report and the chart. We need not produce the same as the said exercise was done regard being had to the population and vacancies and not to the concepts that have been evolved in M. Nagaraj (supra). It is one thing to think that there are statutory rules or executive instructions to grant promotion but it cannot be forgotten that they were all subject to the pronouncement by this Court in Vir Pal Singh Chauhan (supra) and Ajit Singh (II) (supra). We are of the firm view that a fresh exercise in the light of the judgment of the Constitution Bench in M. Nagaraj (supra) is a categorical imperative. The stand that the constitutional amendments have facilitated the reservation in promotion with consequential seniority and have given the stamp of approval to the Act and the Rules cannot withstand close scrutiny inasmuch as the Constitution Bench has clearly opined that Articles 16(4A) and 16(4B) are enabling provisions and the State can make provisions for the same on certain basis or foundation. The conditions precedent have not been satisfied. No exercise has been undertaken. What has been argued with vehemence is that it is not necessary as the concept of reservation in promotion was already in vogue. We are unable to accept the said submission, for when the provisions of the Constitution are treated valid with certain conditions or riders, it becomes incumbent on the part of the State to appreciate and apply the test so that its amendments can be tested and withstand the scrutiny on parameters laid down therein. 42. In the ultimate analysis, we conclude and hold that Section 3(7) of the 1994 Act and Rule 8A of the 2007 Rules are ultra vires as they run counter to the dictum in M. Nagaraj (supra). Any promotion that has been given on the dictum of Indra Sawhney (supra) and without the aid or assistance of Section 3(7) and Rule 8A shall remain undisturbed. | 1[ds]38. From the aforesaid decision and the paragraphs we have quoted hereinabove, the following principles can be carved out: -i) Vesting of the power by an enabling provision may be constitutionally valid and yet exercise of power by the State in a given case may be arbitrary, particularly, if the State fails to identify and measure backwardness and inadequacy keeping in mind the efficiency of service as required under Article 335ii) Article 16(4) which protects the interests of certain sections of the society has to be balanced against Article 16(1) which protects the interests of every citizen of the entire society. They should be harmonized because they are restatements of the principle of equality under Article 14iii) Each post gets marked for the particular category of candidates to be appointed against it and any subsequent vacancy has to be filled by that category candidateiv) The appropriate Government has to apply the cadre strength as a unit in the operation of the roster in order to ascertain whether a given class/group is adequately represented in the service. The cadre strength as a unit also ensures that the upper ceiling-limit of 50% is not violated. Further roster has to be post-specific and not vacancy basedv) The State has to form its opinion on the quantifiable data regarding adequacy of representation. Clause (4A) of Article 16 is an enabling provision. It gives freedom to the State to provide for reservation in matters of promotion. Clause (4A) of Article 16 applies only to SCs and STs. The said clause is carved out of Article 16(4A). Therefore, Clause (4A) will be governed by the two compelling reasons – backwardness and inadequacy of representation, as mentioned in Article 16(4). If the said two reasons do not exist, then the enabling provision cannot be enforcedvi) If the ceiling-limit on the carry-over of unfilled vacancies is removed, the other alternative time-factor comes in and in that event, the time-scale has to be imposed in the interest of efficiency in administration as mandated by Article 335. If the time-scale is not kept, then posts will continue to remain vacant for years which would be detrimental to the administration. Therefore, in each case, the appropriate Government will now have to introduce the duration depending upon the fact-situationvii) If the appropriate Government enacts a law providing for reservation without keeping in mind the parameters in Article 16(4) and Article 335, then this Court will certainly set aside and strike down such legislationviii) The constitutional limitation under Article 335 is relaxed and not obliterated. As stated above, be it reservation or evaluation, excessiveness in either would result in violation of the constitutional mandate. This exercise, however, will depend on the facts of each caseix) The concepts of efficiency, backwardness and inadequacy of representation are required to be identified and measured. That exercise depends on the availability of data. That exercise depends on numerous factors. It is for this reason that the enabling provisions are required to be made because each competing claim seeks to achieve certain goals. How best one should optimize these conflicting claims can only be done by the administration in the context of local prevailing conditions in public employmentx) Article 16(4), therefore, creates a field which enables a State to provide for reservation provided there exists backwardness of a class and inadequacy of representation in employment. These are compelling reasons. They do not exist in Article 16(1). It is only when these reasons are satisfied that a State gets the power to provide for reservation in the matter of employment41. As has been indicated hereinbefore, it has been vehemently argued by the learned senior counsel for the State and the learned senior counsel for the Corporation that once the principle of reservation was made applicable to the spectrum of promotion, no fresh exercise is necessary. It is also urged that the efficiency in service is not jeopardized. Reference has been made to the Social Justice Committee Report and the chart. We need not produce the same as the said exercise was done regard being had to the population and vacancies and not to the concepts that have been evolved in M. Nagaraj (supra). It is one thing to think that there are statutory rules or executive instructions to grant promotion but it cannot be forgotten that they were all subject to the pronouncement by this Court in Vir Pal Singh Chauhan (supra) and Ajit Singh (II) (supra). We are of the firm view that a fresh exercise in the light of the judgment of the Constitution Bench in M. Nagaraj (supra) is a categorical imperative. The stand that the constitutional amendments have facilitated the reservation in promotion with consequential seniority and have given the stamp of approval to the Act and the Rules cannot withstand close scrutiny inasmuch as the Constitution Bench has clearly opined that Articles 16(4A) and 16(4B) are enabling provisions and the State can make provisions for the same on certain basis or foundation. The conditions precedent have not been satisfied. No exercise has been undertaken. What has been argued with vehemence is that it is not necessary as the concept of reservation in promotion was already in vogue. We are unable to accept the said submission, for when the provisions of the Constitution are treated valid with certain conditions or riders, it becomes incumbent on the part of the State to appreciate and apply the test so that its amendments can be tested and withstand the scrutiny on parameters laid down therein42. In the ultimate analysis, we conclude and hold that Section 3(7) of the 1994 Act and Rule 8A of the 2007 Rules are ultra vires as they run counter to the dictum in M. Nagaraj (supra). Any promotion that has been given on the dictum of Indra Sawhney (supra) and without the aid or assistance of Section 3(7) and Rule 8A shall remain undisturbed. | 1 | 16,317 | 1,112 | ### 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:
case. ix) The concepts of efficiency, backwardness and inadequacy of representation are required to be identified and measured. That exercise depends on the availability of data. That exercise depends on numerous factors. It is for this reason that the enabling provisions are required to be made because each competing claim seeks to achieve certain goals. How best one should optimize these conflicting claims can only be done by the administration in the context of local prevailing conditions in public employment. x) Article 16(4), therefore, creates a field which enables a State to provide for reservation provided there exists backwardness of a class and inadequacy of representation in employment. These are compelling reasons. They do not exist in Article 16(1). It is only when these reasons are satisfied that a State gets the power to provide for reservation in the matter of employment. 39. At this stage, we think it appropriate to refer to the case of Suraj Bhan Meena and another (supra). In the said case, while interpreting the case in M. Nagaraj (supra), the two-Judge Bench has observed: - 10. In M. Nagaraj case, this Court while upholding the constitutional validity of the Constitution (77thAmendment) Act, 1995 and the Constitution (85th Amendment) Act, 2001, clarified the position that it would not be necessary for the State Government to frame rules in respect of reservation in promotion with consequential seniority, but in case the State Government wanted to frame such rules in this regard, then it would have to satisfy itself by quantifiable data, that there was backwardness, inadequacy of representation in public employment and overall administrative inefficiency and unless such an exercise was undertaken by the State Government, the rule relating to reservation in promotion with consequential seniority could not be introduced. 40. In the said case, the State Government had not undertaken any exercise as indicated in M. Nagaraj (supra). The two-Judge Bench has noted three conditions in the said judgment. It was canvassed before the Bench that exercise to be undertaken as per the direction in M.Nagaraj (supra) was mandatory and the State cannot, either directly or indirectly, circumvent or ignore or refuse to undertake the exercise by taking recourse to the Constitution (Eighty-Fifth Amendment) Act providing for reservation for promotion with consequential seniority. While dealing with the contentions, the two-Judge Bench opined that the State is required to place before the Court the requisite quantifiable data in each case and to satisfy the court that the said reservation became necessary on account of inadequacy of representation of Scheduled Castes and Scheduled Tribes candidates in a particular class or classes of posts, without affecting the general efficiency of service. Eventually, the Bench opined as follows: - 66. The position after the decision in M. Nagaraj case is that reservation of posts in promotion is dependent on the inadequacy of representation of members of the Scheduled Castes and Scheduled Tribes and Backward Classes and subject to the condition of ascertaining as to whether such reservation was at all required. 67. The view of the High Court is based on the decision in M. Nagaraj case as no exercise was undertaken in terms of Article 16(4-A) to acquire quantifiable data regarding the inadequacy of representation of the Schedule Caste and Scheduled Tribe communities in public services. The Rajasthan High Court has rightly quashed the notifications dated 28.12.2002 and 25.4.2008 issued by the State of Rajasthan providing for consequential seniority and promotion to the members of the Scheduled Caste and Scheduled Tribe communities and the same does not call for any interference. After so stating, the two-Judge Bench affirmed the view taken by the High Court of Rajasthan. 41. As has been indicated hereinbefore, it has been vehemently argued by the learned senior counsel for the State and the learned senior counsel for the Corporation that once the principle of reservation was made applicable to the spectrum of promotion, no fresh exercise is necessary. It is also urged that the efficiency in service is not jeopardized. Reference has been made to the Social Justice Committee Report and the chart. We need not produce the same as the said exercise was done regard being had to the population and vacancies and not to the concepts that have been evolved in M. Nagaraj (supra). It is one thing to think that there are statutory rules or executive instructions to grant promotion but it cannot be forgotten that they were all subject to the pronouncement by this Court in Vir Pal Singh Chauhan (supra) and Ajit Singh (II) (supra). We are of the firm view that a fresh exercise in the light of the judgment of the Constitution Bench in M. Nagaraj (supra) is a categorical imperative. The stand that the constitutional amendments have facilitated the reservation in promotion with consequential seniority and have given the stamp of approval to the Act and the Rules cannot withstand close scrutiny inasmuch as the Constitution Bench has clearly opined that Articles 16(4A) and 16(4B) are enabling provisions and the State can make provisions for the same on certain basis or foundation. The conditions precedent have not been satisfied. No exercise has been undertaken. What has been argued with vehemence is that it is not necessary as the concept of reservation in promotion was already in vogue. We are unable to accept the said submission, for when the provisions of the Constitution are treated valid with certain conditions or riders, it becomes incumbent on the part of the State to appreciate and apply the test so that its amendments can be tested and withstand the scrutiny on parameters laid down therein. 42. In the ultimate analysis, we conclude and hold that Section 3(7) of the 1994 Act and Rule 8A of the 2007 Rules are ultra vires as they run counter to the dictum in M. Nagaraj (supra). Any promotion that has been given on the dictum of Indra Sawhney (supra) and without the aid or assistance of Section 3(7) and Rule 8A shall remain undisturbed.
### Response:
1
### Explanation:
38. From the aforesaid decision and the paragraphs we have quoted hereinabove, the following principles can be carved out: -i) Vesting of the power by an enabling provision may be constitutionally valid and yet exercise of power by the State in a given case may be arbitrary, particularly, if the State fails to identify and measure backwardness and inadequacy keeping in mind the efficiency of service as required under Article 335ii) Article 16(4) which protects the interests of certain sections of the society has to be balanced against Article 16(1) which protects the interests of every citizen of the entire society. They should be harmonized because they are restatements of the principle of equality under Article 14iii) Each post gets marked for the particular category of candidates to be appointed against it and any subsequent vacancy has to be filled by that category candidateiv) The appropriate Government has to apply the cadre strength as a unit in the operation of the roster in order to ascertain whether a given class/group is adequately represented in the service. The cadre strength as a unit also ensures that the upper ceiling-limit of 50% is not violated. Further roster has to be post-specific and not vacancy basedv) The State has to form its opinion on the quantifiable data regarding adequacy of representation. Clause (4A) of Article 16 is an enabling provision. It gives freedom to the State to provide for reservation in matters of promotion. Clause (4A) of Article 16 applies only to SCs and STs. The said clause is carved out of Article 16(4A). Therefore, Clause (4A) will be governed by the two compelling reasons – backwardness and inadequacy of representation, as mentioned in Article 16(4). If the said two reasons do not exist, then the enabling provision cannot be enforcedvi) If the ceiling-limit on the carry-over of unfilled vacancies is removed, the other alternative time-factor comes in and in that event, the time-scale has to be imposed in the interest of efficiency in administration as mandated by Article 335. If the time-scale is not kept, then posts will continue to remain vacant for years which would be detrimental to the administration. Therefore, in each case, the appropriate Government will now have to introduce the duration depending upon the fact-situationvii) If the appropriate Government enacts a law providing for reservation without keeping in mind the parameters in Article 16(4) and Article 335, then this Court will certainly set aside and strike down such legislationviii) The constitutional limitation under Article 335 is relaxed and not obliterated. As stated above, be it reservation or evaluation, excessiveness in either would result in violation of the constitutional mandate. This exercise, however, will depend on the facts of each caseix) The concepts of efficiency, backwardness and inadequacy of representation are required to be identified and measured. That exercise depends on the availability of data. That exercise depends on numerous factors. It is for this reason that the enabling provisions are required to be made because each competing claim seeks to achieve certain goals. How best one should optimize these conflicting claims can only be done by the administration in the context of local prevailing conditions in public employmentx) Article 16(4), therefore, creates a field which enables a State to provide for reservation provided there exists backwardness of a class and inadequacy of representation in employment. These are compelling reasons. They do not exist in Article 16(1). It is only when these reasons are satisfied that a State gets the power to provide for reservation in the matter of employment41. As has been indicated hereinbefore, it has been vehemently argued by the learned senior counsel for the State and the learned senior counsel for the Corporation that once the principle of reservation was made applicable to the spectrum of promotion, no fresh exercise is necessary. It is also urged that the efficiency in service is not jeopardized. Reference has been made to the Social Justice Committee Report and the chart. We need not produce the same as the said exercise was done regard being had to the population and vacancies and not to the concepts that have been evolved in M. Nagaraj (supra). It is one thing to think that there are statutory rules or executive instructions to grant promotion but it cannot be forgotten that they were all subject to the pronouncement by this Court in Vir Pal Singh Chauhan (supra) and Ajit Singh (II) (supra). We are of the firm view that a fresh exercise in the light of the judgment of the Constitution Bench in M. Nagaraj (supra) is a categorical imperative. The stand that the constitutional amendments have facilitated the reservation in promotion with consequential seniority and have given the stamp of approval to the Act and the Rules cannot withstand close scrutiny inasmuch as the Constitution Bench has clearly opined that Articles 16(4A) and 16(4B) are enabling provisions and the State can make provisions for the same on certain basis or foundation. The conditions precedent have not been satisfied. No exercise has been undertaken. What has been argued with vehemence is that it is not necessary as the concept of reservation in promotion was already in vogue. We are unable to accept the said submission, for when the provisions of the Constitution are treated valid with certain conditions or riders, it becomes incumbent on the part of the State to appreciate and apply the test so that its amendments can be tested and withstand the scrutiny on parameters laid down therein42. In the ultimate analysis, we conclude and hold that Section 3(7) of the 1994 Act and Rule 8A of the 2007 Rules are ultra vires as they run counter to the dictum in M. Nagaraj (supra). Any promotion that has been given on the dictum of Indra Sawhney (supra) and without the aid or assistance of Section 3(7) and Rule 8A shall remain undisturbed.
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Sebastiao Luis Fernandes (Dead) Through Lrs. & Others Vs. K.V.P. Shastri (Dead) Through Lrs. Others | of Hira Lal which view is supported by other cases referred to supra. Therefore, answer to the said substantial questions of law by the High Court by recording cogent and valid reasons to annul the concurrent findings that the non-appreciation of the pleadings and evidence on record by the courts below rendered their finding on the contentious issues/points as perverse and arbitrary, and therefore the same have been rightly set aside by answering the substantial questions of law in favour of the defendants. 24. The learned counsel for the defendants relied on the judgment of this Court in Hero Vinoth (minor) v. Seshammal [2006) 5 SCC 545 ], wherein the principles relating to Section 100 of the CPC were summarized in para 24, which is extracted below : “24. The principles relating to Section 100 CPC relevant for this case may be summarised thus:(i) An inference of fact from the recitals or contents of a document is a question of fact. But the legal effect of the terms of a document is a question of law. Construction of a document involving the application of any principle of law, is also a question of law. Therefore, when there is misconstruction of a document or wrong application of a principle of law in construing a document, it gives rise to a question of law.(ii) The High Court should be satisfied that the case involves a substantial question of law, and not a mere question of law. A question of law having a material bearing on the decision of the case (that is, a question, answer to which affects the rights of parties to the suit) will be a substantial question of law, if it is not covered by any specific provisions of law or settled legal principle emerging from binding precedents, and, involves a debatable legal issue. A substantial question of law will also arise in a contrary situation, where the legal position is clear, either on account of express provisions of law or binding precedents, but the court below has decided the matter, either ignoring or acting contrary to such legal principle. In the second type of cases, the substantial question of law arises not because the law is still debatable, but because the decision rendered on a material question, violates the settled position of law.(iii) The general rule is that High Court will not interfere with the concurrent findings of the courts below. But it is not an absolute rule. Some of the well-recognised exceptions are where (i) the courts below have ignored material evidence or acted on no evidence; (ii) the courts have drawn wrong inferences from proved facts by applying the law erroneously; or (iii) the courts have wrongly cast the burden of proof. When we refer to “decision based on no evidence”, it not only refers to cases where there is a total dearth of evidence, but also refers to any case, where the evidence, taken as a whole, is not reasonably capable of supporting the finding.” We have to place reliance on the afore-mentioned case to hold that the High Court has framed substantial questions of law as per Section 100 of the CPC, and there is no error in the judgment of the High Court in this regard and therefore, there is no need for this Court to interfere with the same. 25. In the matter of onus of proof and burden of proof as per Sections 101 and 102 of the Evidence Act, we have to hold that it was upon the plaintiff-appellants to furnish proof regarding ownership of 1/3rd share of the suit schedule property and discharge their burden of proof as per the afore-mentioned sections. The relevant extract from Anil Rishi v. Gurbaksh Singh (supra) is reproduced below:- “19. There is another aspect of the matter which should be borne in mind. A distinction exists between burden of proof and onus of proof. The right to begin follows onus probandi. It assumes importance in the early stage of a case. The question of onus of proof has greater force, where the question is, which party is to begin. Burden of proof is used in three ways: (i) to indicate the duty of bringing forward evidence in support of a proposition at the beginning or later; (ii) to make that of establishing a proposition as against all counter-evidence; and (iii) an indiscriminate use in which it may mean either or both of the others. The elementary rule in Section 101 is inflexible. In terms of Section 102 the initial onus is always on the plaintiff and if he discharges that onus and makes out a case which entitles him to a relief, the onus shifts to the defendant to prove those circumstances, if any, which would disentitle the plaintiff to the same.20. In R.V.E. Venkatachala Gounder v. Arulmigu Viswesaraswami & V.P. Temple the law is stated in the following terms: (SCC p. 768, para 29)“29. In a suit for recovery of possession based on title it is for the plaintiff to prove his title and satisfy the court that he, in law, is entitled to dispossess the defendant from his possession over the suit property and for the possession to be restored to him. However, as held in Addagada Raghavamma v. Addagada Chenchamma there is an essential distinction between burden of proof and onus of proof: burden of proof lies upon a person who has to prove the fact and which never shifts. Onus of proof shifts. Such a shifting of onus is a continuous process in the evaluation of evidence. In our opinion, in a suit for possession based on title once the plaintiff has been able to create a high degree of probability so as to shift the onus on the defendant it is for the defendant to discharge his onus and in the absence thereof the burden of proof lying on the plaintiff shall be held to have been discharged so as to amount to proof of the plaintiff’s title.” | 0[ds]we are satisfied that the ratio laid down by this Court in Hiracase (supra) and other decisions referred to supra upon whichcounsel placed reliance in justification of the findings and reasons recorded by the High Court in the impugned judgment are applicable to the fact situation of this case as the courts below have erred in assuming certain facts which are not in existence to come to the erroneous conclusion in the absence of title document in justification of the claim of the plaintiff in respect of the suit schedule property and ignored the pleadings of the defendants though they have specifically denied the ownership right claimed by the plaintiff in respect of the suit schedule property and on wrong assumption of the facts which are pleaded on the contentious issues, they have been answered in favour of the plaintiff, therefore, the High Court has rightly exercised its appellate jurisdiction by framing the correct substantial questions of law with reference to the legal position and applied the same to the fact situation of case on hand.23. In our considered view, the substantial questions of law framed by the High Court at the time of the admission of the second appeal is based on law laid down by this Court in the above referred case of Hira Lal which view is supported by other cases referred to supra. Therefore, answer to the said substantial questions of law by the High Court by recording cogent and valid reasons to annul the concurrent findings that the non-appreciation of the pleadings and evidence on record by the courts below rendered their finding on the contentious issues/points as perverse and arbitrary, and therefore the same have been rightly set aside by answering the substantial questions of law in favour of the defendants. | 0 | 6,512 | 312 | ### Instruction:
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of Hira Lal which view is supported by other cases referred to supra. Therefore, answer to the said substantial questions of law by the High Court by recording cogent and valid reasons to annul the concurrent findings that the non-appreciation of the pleadings and evidence on record by the courts below rendered their finding on the contentious issues/points as perverse and arbitrary, and therefore the same have been rightly set aside by answering the substantial questions of law in favour of the defendants. 24. The learned counsel for the defendants relied on the judgment of this Court in Hero Vinoth (minor) v. Seshammal [2006) 5 SCC 545 ], wherein the principles relating to Section 100 of the CPC were summarized in para 24, which is extracted below : “24. The principles relating to Section 100 CPC relevant for this case may be summarised thus:(i) An inference of fact from the recitals or contents of a document is a question of fact. But the legal effect of the terms of a document is a question of law. Construction of a document involving the application of any principle of law, is also a question of law. Therefore, when there is misconstruction of a document or wrong application of a principle of law in construing a document, it gives rise to a question of law.(ii) The High Court should be satisfied that the case involves a substantial question of law, and not a mere question of law. A question of law having a material bearing on the decision of the case (that is, a question, answer to which affects the rights of parties to the suit) will be a substantial question of law, if it is not covered by any specific provisions of law or settled legal principle emerging from binding precedents, and, involves a debatable legal issue. A substantial question of law will also arise in a contrary situation, where the legal position is clear, either on account of express provisions of law or binding precedents, but the court below has decided the matter, either ignoring or acting contrary to such legal principle. In the second type of cases, the substantial question of law arises not because the law is still debatable, but because the decision rendered on a material question, violates the settled position of law.(iii) The general rule is that High Court will not interfere with the concurrent findings of the courts below. But it is not an absolute rule. Some of the well-recognised exceptions are where (i) the courts below have ignored material evidence or acted on no evidence; (ii) the courts have drawn wrong inferences from proved facts by applying the law erroneously; or (iii) the courts have wrongly cast the burden of proof. When we refer to “decision based on no evidence”, it not only refers to cases where there is a total dearth of evidence, but also refers to any case, where the evidence, taken as a whole, is not reasonably capable of supporting the finding.” We have to place reliance on the afore-mentioned case to hold that the High Court has framed substantial questions of law as per Section 100 of the CPC, and there is no error in the judgment of the High Court in this regard and therefore, there is no need for this Court to interfere with the same. 25. In the matter of onus of proof and burden of proof as per Sections 101 and 102 of the Evidence Act, we have to hold that it was upon the plaintiff-appellants to furnish proof regarding ownership of 1/3rd share of the suit schedule property and discharge their burden of proof as per the afore-mentioned sections. The relevant extract from Anil Rishi v. Gurbaksh Singh (supra) is reproduced below:- “19. There is another aspect of the matter which should be borne in mind. A distinction exists between burden of proof and onus of proof. The right to begin follows onus probandi. It assumes importance in the early stage of a case. The question of onus of proof has greater force, where the question is, which party is to begin. Burden of proof is used in three ways: (i) to indicate the duty of bringing forward evidence in support of a proposition at the beginning or later; (ii) to make that of establishing a proposition as against all counter-evidence; and (iii) an indiscriminate use in which it may mean either or both of the others. The elementary rule in Section 101 is inflexible. In terms of Section 102 the initial onus is always on the plaintiff and if he discharges that onus and makes out a case which entitles him to a relief, the onus shifts to the defendant to prove those circumstances, if any, which would disentitle the plaintiff to the same.20. In R.V.E. Venkatachala Gounder v. Arulmigu Viswesaraswami & V.P. Temple the law is stated in the following terms: (SCC p. 768, para 29)“29. In a suit for recovery of possession based on title it is for the plaintiff to prove his title and satisfy the court that he, in law, is entitled to dispossess the defendant from his possession over the suit property and for the possession to be restored to him. However, as held in Addagada Raghavamma v. Addagada Chenchamma there is an essential distinction between burden of proof and onus of proof: burden of proof lies upon a person who has to prove the fact and which never shifts. Onus of proof shifts. Such a shifting of onus is a continuous process in the evaluation of evidence. In our opinion, in a suit for possession based on title once the plaintiff has been able to create a high degree of probability so as to shift the onus on the defendant it is for the defendant to discharge his onus and in the absence thereof the burden of proof lying on the plaintiff shall be held to have been discharged so as to amount to proof of the plaintiff’s title.”
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we are satisfied that the ratio laid down by this Court in Hiracase (supra) and other decisions referred to supra upon whichcounsel placed reliance in justification of the findings and reasons recorded by the High Court in the impugned judgment are applicable to the fact situation of this case as the courts below have erred in assuming certain facts which are not in existence to come to the erroneous conclusion in the absence of title document in justification of the claim of the plaintiff in respect of the suit schedule property and ignored the pleadings of the defendants though they have specifically denied the ownership right claimed by the plaintiff in respect of the suit schedule property and on wrong assumption of the facts which are pleaded on the contentious issues, they have been answered in favour of the plaintiff, therefore, the High Court has rightly exercised its appellate jurisdiction by framing the correct substantial questions of law with reference to the legal position and applied the same to the fact situation of case on hand.23. In our considered view, the substantial questions of law framed by the High Court at the time of the admission of the second appeal is based on law laid down by this Court in the above referred case of Hira Lal which view is supported by other cases referred to supra. Therefore, answer to the said substantial questions of law by the High Court by recording cogent and valid reasons to annul the concurrent findings that the non-appreciation of the pleadings and evidence on record by the courts below rendered their finding on the contentious issues/points as perverse and arbitrary, and therefore the same have been rightly set aside by answering the substantial questions of law in favour of the defendants.
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Management of Sone Valley Portland Cement Co. Ltd Vs. Its Workmen & Others | tribunal should have followed the scheme in force in the factories of Associated Cement Companies, Limited where there is a maximum of fifteen months wages provided for gratuity. The tribunal in the present case has introduced no maximum and the appellant contends that the maximum should be introduced in its case also. It seems to us that the appellant was so concerned in opposing the introduction of the gratuity scheme at all that it did not worry about its terms. What the tribunal has done is to introduce the scheme which it has introduced in another concern, namely, Rohtas Industries, Limited. Dalmianagar. Considering that the appellant did not apparently make any submissions about the details of the scheme of gratuity before the tribunal and also considering that no points as to the details of the scheme have been raised in the special leave petition, we are not prepared to allow the appellant to challenge the details of the scheme at this late stage. The appellant can only succeed by showing that no gratuity scheme should be introduced; but as it falls in that, we see no reason to go into the details of the scheme which has been introduced by the tribunal in conformity with what it did in another concern in the same region. We have already pointed out that we are not satisfied that the appellant has not the financial capacity to bear the burden of both the provident fund and gratuity. The contention of the appellant therefore on this score must also fall.6. This brings us to the question of bonus. The appellant had already given bonus equivalent to two months wages to the respondents. The respondents however claimed three months wages as bonus. The tribunal has allowed them fifteen days extra bonus over and above the two months bonus given to them by the appellant. The contention of the appellant is that it has already given to its workmen more than it would have been required to give under the Full Bench formula and there was therefore no reason for the tribunal to award bonus for fifteen days extra, which would amount to about Rs. 1 1/4 lakhs, the monthly wage bill being Rs. 2 1/2 lakhs. It was not disputed before the tribunal and it is not disputed before us that if the available surplus is to be calculated from the balance-sheet and the profit and loss account of the appellant for the relevant year, accepting them as correct, there would be no scope for awarding any further bonus beyond the two months bonus already given by the appellant to its workmen. The tribunal, however, without finding that the balance-sheet and the profit and lose account of the appellant are in any way incorrect, has apparently not relied on them because of a certain discrepancy of Re. 38 lakhs between the price of cement as it works out according to the price fixed by the Government and the amount shown in the balance-shoot and the profit and loss account on that behalf. According to the tribunal, this discrepancy has not been explained and therefore if this sum of Re. 38 lakhs or even a fraction of it is treated as profit, there will be sufficient surplus to allow fifteen days extra bonus. The tribunal, however, overlooked the evidence of J. C. Dutt, the accountant of the appellant at the time in this connexion. He was asked about this discrepancy and stated that the discrepancy was accounted for by deduction of selling agents commission, freight elements and adjustment of claims, etc. He further stated that the figures relating to Re. 38 lakhs which was the difference were available in the office and could be supplied if required. The balance-sheet and the profit and lose account also show that the figure entered in them is after deduction of the commission, though not of other items mentioned by the accountant. After this statement of the accountant, no attempt was made either by the respondents or by the tribunal to send for those documents. What is however urged on behalf of the respondents is that it was for the accountant to bring the papers and explain the matter fully to the tribunal, and as the accountant failed to do so, the tribunal was justified in holding that this figure of Rs. 38 lakhs had not been explained. We are of opinion that this was not a fair way of dealing with the matter. The accountant had given an explanation and was prepared to substantiate his explanation from documents if required to do so. In these circumstances, it was open either to the respondents or the tribunal to require him to bring the documents and substantiate hie statement, which was already corroborated in part by the fact that the balance-sheet and the profit and loss account did mention that the price entered in them was after deducting the commission. Further, the appellant had filed the income-tax return for the relevant year, where the income-tax department had accepted the position with respect to the sale price. In the circumstances, it was not fair on the part of the tribunal to disallow this amount of Rs. 38 lakhs without calling upon the appellant to produce the documents which Dutt said ware available and which he was prepared to produce if required to do so. We cannot agree with the tribunal in holding that there is anything wrong with the balance-sheet and the profit and loss account of the relevant year with respect to this amount of Rs. 38 lakhs. Therefore, an soon as the balance-sheet and the profit and loss account are accepted as correct, it cannot be disputed and it has not been disputed that the workmen would not be entitled to anything more as bonus than what the appellant has already given to them. We therefore set aside this part of the award of the tribunal with respect to the grant of further bonus for fifteen days to the respondents. | 0[ds]We are of opinion that though technically the tribunal held that the two officers could not represent the appellant, in fact it appears from the proceedings that the two officers were allowed to represent the appellant, both on 26 and 27 June 1959. Further we cannot forget that the main evidence in this case was led on the earlier occasion when the award was made in 1956 and that evidence was accepted by the parties on the second occasion and on the present occasion, all that the appellant wanted was to supplement that evidence by a few more documents. Considering that the hearing was being given at Japla where theis situate, we do not see why it should have been difficult for the appellant to be ready with the material if wanted to produce on 27 June. Further, as this case has been going on since 1954, we do not think that the tribunal was unjustified in refusing to grant further adjournment and on insisting on the production of whatever material was to be produced within twenty four hours. In any case we are not prepared to say that there was not a fair hearing in the circumstances. Nor are we disposed to remand this case for further hearing after this interval of seven years.We agree with both the reasons given by the tribunal and are of opinion that the order passed by it that fifty per centum of the cement packers should be made permanent is justified. We, therefore, reject the contention of the appellant in thisreasons given by the tribunal for making this order are :"(i) that cement packing is not work of a temporary nature but is part of the manufacturing process which goes on all the time; and(ii) that the figures supplied by the appellant as to the number of temporary cement packers and the work done by them in 1954 show that there was sufficient work for at least fifty per centum of them being madeTextile Manufacturing Co., Ltd. v. Textile Labour Association [1960II L.L.J. 21 atthe burden is calculated on the basis of this practical approach, as it should be, there is in our opinion no reason to interfere with the view of the tribunal that the appellant can bear this burden. We, therefore, see no reason to disagree with the tribunal that the appellant would be able to bear the burden of the gratuity scheme in addition to the provident fund scheme already in force.It is however urged on behalf of the appellant that the tribunal should have followed the scheme in force in the factories of Associated Cement Companies, Limited where there is a maximum of fifteen months wages provided for gratuity. The tribunal in the present case has introduced no maximum and the appellant contends that the maximum should be introduced in its case also. It seems to us that the appellant was so concerned in opposing the introduction of the gratuity scheme at all that it did not worry about its terms. What the tribunal has done is to introduce the scheme which it has introduced in another concern, namely, Rohtas Industries, Limited. Dalmianagar. Considering that the appellant did not apparently make any submissions about the details of the scheme of gratuity before the tribunal and also considering that no points as to the details of the scheme have been raised in the special leave petition, we are not prepared to allow the appellant to challenge the details of the scheme at this late stage. The appellant can only succeed by showing that no gratuity scheme should be introduced; but as it falls in that, we see no reason to go into the details of the scheme which has been introduced by the tribunal in conformity with what it did in another concern in the same region. We have already pointed out that we are not satisfied that the appellant has not the financial capacity to bear the burden of both the provident fund and gratuity. The contention of the appellant therefore on this score must alsoare of opinion that this was not a fair way of dealing with the matter. The accountant had given an explanation and was prepared to substantiate his explanation from documents if required to do so. In these circumstances, it was open either to the respondents or the tribunal to require him to bring the documents and substantiate hie statement, which was already corroborated in part by the fact that theand the profit and loss account did mention that the price entered in them was after deducting the commission. Further, the appellant had filed thereturn for the relevant year, where thedepartment had accepted the position with respect to the sale price. In the circumstances, it was not fair on the part of the tribunal to disallow this amount of Rs. 38 lakhs without calling upon the appellant to produce the documents which Dutt said ware available and which he was prepared to produce if required to do so. We cannot agree with the tribunal in holding that there is anything wrong with theand the profit and loss account of the relevant year with respect to this amount of Rs. 38 lakhs. Therefore, an soon as theand the profit and loss account are accepted as correct, it cannot be disputed and it has not been disputed that the workmen would not be entitled to anything more as bonus than what the appellant has already given to them. We therefore set aside this part of the award of the tribunal with respect to the grant of further bonus for fifteen days to the respondents. | 0 | 2,972 | 1,006 | ### Instruction:
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tribunal should have followed the scheme in force in the factories of Associated Cement Companies, Limited where there is a maximum of fifteen months wages provided for gratuity. The tribunal in the present case has introduced no maximum and the appellant contends that the maximum should be introduced in its case also. It seems to us that the appellant was so concerned in opposing the introduction of the gratuity scheme at all that it did not worry about its terms. What the tribunal has done is to introduce the scheme which it has introduced in another concern, namely, Rohtas Industries, Limited. Dalmianagar. Considering that the appellant did not apparently make any submissions about the details of the scheme of gratuity before the tribunal and also considering that no points as to the details of the scheme have been raised in the special leave petition, we are not prepared to allow the appellant to challenge the details of the scheme at this late stage. The appellant can only succeed by showing that no gratuity scheme should be introduced; but as it falls in that, we see no reason to go into the details of the scheme which has been introduced by the tribunal in conformity with what it did in another concern in the same region. We have already pointed out that we are not satisfied that the appellant has not the financial capacity to bear the burden of both the provident fund and gratuity. The contention of the appellant therefore on this score must also fall.6. This brings us to the question of bonus. The appellant had already given bonus equivalent to two months wages to the respondents. The respondents however claimed three months wages as bonus. The tribunal has allowed them fifteen days extra bonus over and above the two months bonus given to them by the appellant. The contention of the appellant is that it has already given to its workmen more than it would have been required to give under the Full Bench formula and there was therefore no reason for the tribunal to award bonus for fifteen days extra, which would amount to about Rs. 1 1/4 lakhs, the monthly wage bill being Rs. 2 1/2 lakhs. It was not disputed before the tribunal and it is not disputed before us that if the available surplus is to be calculated from the balance-sheet and the profit and loss account of the appellant for the relevant year, accepting them as correct, there would be no scope for awarding any further bonus beyond the two months bonus already given by the appellant to its workmen. The tribunal, however, without finding that the balance-sheet and the profit and lose account of the appellant are in any way incorrect, has apparently not relied on them because of a certain discrepancy of Re. 38 lakhs between the price of cement as it works out according to the price fixed by the Government and the amount shown in the balance-shoot and the profit and loss account on that behalf. According to the tribunal, this discrepancy has not been explained and therefore if this sum of Re. 38 lakhs or even a fraction of it is treated as profit, there will be sufficient surplus to allow fifteen days extra bonus. The tribunal, however, overlooked the evidence of J. C. Dutt, the accountant of the appellant at the time in this connexion. He was asked about this discrepancy and stated that the discrepancy was accounted for by deduction of selling agents commission, freight elements and adjustment of claims, etc. He further stated that the figures relating to Re. 38 lakhs which was the difference were available in the office and could be supplied if required. The balance-sheet and the profit and lose account also show that the figure entered in them is after deduction of the commission, though not of other items mentioned by the accountant. After this statement of the accountant, no attempt was made either by the respondents or by the tribunal to send for those documents. What is however urged on behalf of the respondents is that it was for the accountant to bring the papers and explain the matter fully to the tribunal, and as the accountant failed to do so, the tribunal was justified in holding that this figure of Rs. 38 lakhs had not been explained. We are of opinion that this was not a fair way of dealing with the matter. The accountant had given an explanation and was prepared to substantiate his explanation from documents if required to do so. In these circumstances, it was open either to the respondents or the tribunal to require him to bring the documents and substantiate hie statement, which was already corroborated in part by the fact that the balance-sheet and the profit and loss account did mention that the price entered in them was after deducting the commission. Further, the appellant had filed the income-tax return for the relevant year, where the income-tax department had accepted the position with respect to the sale price. In the circumstances, it was not fair on the part of the tribunal to disallow this amount of Rs. 38 lakhs without calling upon the appellant to produce the documents which Dutt said ware available and which he was prepared to produce if required to do so. We cannot agree with the tribunal in holding that there is anything wrong with the balance-sheet and the profit and loss account of the relevant year with respect to this amount of Rs. 38 lakhs. Therefore, an soon as the balance-sheet and the profit and loss account are accepted as correct, it cannot be disputed and it has not been disputed that the workmen would not be entitled to anything more as bonus than what the appellant has already given to them. We therefore set aside this part of the award of the tribunal with respect to the grant of further bonus for fifteen days to the respondents.
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### Explanation:
We are of opinion that though technically the tribunal held that the two officers could not represent the appellant, in fact it appears from the proceedings that the two officers were allowed to represent the appellant, both on 26 and 27 June 1959. Further we cannot forget that the main evidence in this case was led on the earlier occasion when the award was made in 1956 and that evidence was accepted by the parties on the second occasion and on the present occasion, all that the appellant wanted was to supplement that evidence by a few more documents. Considering that the hearing was being given at Japla where theis situate, we do not see why it should have been difficult for the appellant to be ready with the material if wanted to produce on 27 June. Further, as this case has been going on since 1954, we do not think that the tribunal was unjustified in refusing to grant further adjournment and on insisting on the production of whatever material was to be produced within twenty four hours. In any case we are not prepared to say that there was not a fair hearing in the circumstances. Nor are we disposed to remand this case for further hearing after this interval of seven years.We agree with both the reasons given by the tribunal and are of opinion that the order passed by it that fifty per centum of the cement packers should be made permanent is justified. We, therefore, reject the contention of the appellant in thisreasons given by the tribunal for making this order are :"(i) that cement packing is not work of a temporary nature but is part of the manufacturing process which goes on all the time; and(ii) that the figures supplied by the appellant as to the number of temporary cement packers and the work done by them in 1954 show that there was sufficient work for at least fifty per centum of them being madeTextile Manufacturing Co., Ltd. v. Textile Labour Association [1960II L.L.J. 21 atthe burden is calculated on the basis of this practical approach, as it should be, there is in our opinion no reason to interfere with the view of the tribunal that the appellant can bear this burden. We, therefore, see no reason to disagree with the tribunal that the appellant would be able to bear the burden of the gratuity scheme in addition to the provident fund scheme already in force.It is however urged on behalf of the appellant that the tribunal should have followed the scheme in force in the factories of Associated Cement Companies, Limited where there is a maximum of fifteen months wages provided for gratuity. The tribunal in the present case has introduced no maximum and the appellant contends that the maximum should be introduced in its case also. It seems to us that the appellant was so concerned in opposing the introduction of the gratuity scheme at all that it did not worry about its terms. What the tribunal has done is to introduce the scheme which it has introduced in another concern, namely, Rohtas Industries, Limited. Dalmianagar. Considering that the appellant did not apparently make any submissions about the details of the scheme of gratuity before the tribunal and also considering that no points as to the details of the scheme have been raised in the special leave petition, we are not prepared to allow the appellant to challenge the details of the scheme at this late stage. The appellant can only succeed by showing that no gratuity scheme should be introduced; but as it falls in that, we see no reason to go into the details of the scheme which has been introduced by the tribunal in conformity with what it did in another concern in the same region. We have already pointed out that we are not satisfied that the appellant has not the financial capacity to bear the burden of both the provident fund and gratuity. The contention of the appellant therefore on this score must alsoare of opinion that this was not a fair way of dealing with the matter. The accountant had given an explanation and was prepared to substantiate his explanation from documents if required to do so. In these circumstances, it was open either to the respondents or the tribunal to require him to bring the documents and substantiate hie statement, which was already corroborated in part by the fact that theand the profit and loss account did mention that the price entered in them was after deducting the commission. Further, the appellant had filed thereturn for the relevant year, where thedepartment had accepted the position with respect to the sale price. In the circumstances, it was not fair on the part of the tribunal to disallow this amount of Rs. 38 lakhs without calling upon the appellant to produce the documents which Dutt said ware available and which he was prepared to produce if required to do so. We cannot agree with the tribunal in holding that there is anything wrong with theand the profit and loss account of the relevant year with respect to this amount of Rs. 38 lakhs. Therefore, an soon as theand the profit and loss account are accepted as correct, it cannot be disputed and it has not been disputed that the workmen would not be entitled to anything more as bonus than what the appellant has already given to them. We therefore set aside this part of the award of the tribunal with respect to the grant of further bonus for fifteen days to the respondents.
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Howrah Municipality Vs. Mansa Das Dey (Through Widow) | which date he started absenting himself without caring for sanction of leave and without giving opportunity to the administration to make necessary arrangement. (2) That since 3 May, 1960 he has been absenting himself in such unauthorized manner uptill now. (3) That he was informed of his obligation to submit medical certificate in support of his plea of illness but he did not : moreover he declined to do so in his letter dated 15 May, 1960. (4) That he is defying the administration by non-compliance and continuing his unauthorized absence uptill now (i.e., up to 17 May, 1960)." The secretary of the municipality held a domestic enquiry into the charges contained in the two chargesheet and held that the charges were proved against the respondent. After receipt of the report of the enquiry officer, the vice-chairman of the municipality dismissed the respondent by his order dated 16 September, 1960 with retrospective effect from 3 May, 1960. 3. The tribunal held that the proceedings of the domestic enquiry were vitiated because of victimization of the respondent and the Vice-chairman of the municipality was actuated with malice and vindictiveness against the respondent. The tribunal held on the merits that dismissal of the respondent was not justified and ordered that he should be reinstated to his former post.When the hearing of this appeal commenced, a preliminary objection was raised on behalf of the substituted respondent that the appeal had abated as Mansa Das Dey is dead and that the appeal cannot proceed against the substituted respondent. We do not, however, think it necessary to decide this point because we have reached the conclusion that the appeal must be dismissed on the other grounds stated in this judgment. 4. The first question arising in this appeal is whether the respondent-Mansa Das Dey-was a "workman" within the meaning of the Industrial Disputes Act and whether the tribunal had jurisdiction to entertain his complaint under S.33A of the Industrial Disputes Act. The learned Solicitor-General on behalf of the appellant did not, however, argue this point in view of the decision of this Court in Corporation of City of Nagpur v. Its employees [1960 - I L.L.J. 523]. 5. It was then contended by the learned Solicitor-General on behalf of the appellant that there was a proper domestic enquiry by the secretary of the municipality and the charges against the respondent were held to be established. It was contended that the tribunal had no jurisdiction to enter into the merits of the case again and to embark upon a reappraisal of the evidence. It was pointed out that the respondent was deliberately absenting himself from duty from 3 May, 1960 till 17 June, 1960 without the permission of the authorities and the two letters he wrote to the Collector dated 10 May, 1960 and 15 May, 1960 showed lack of discipline. We do not agree with the argument of Solicitor-General that the tribunal had no jurisdiction to enter into the evidence in the special circumstances of this case. It was alleged by the respondent that there was ill-feeling between him and the vice-chairman of the municipality. The respondent was secretary of the Howrah Municipal Employees Association and was also a member of the Anti-Corruption Board formed by the Howrah Municipality. The respondent had objected to the malpractice of the vice-chairman in employing some menials of the municipality to work at his house. The respondent also objected to the favoritism shown by the vice-chairman in the appointment of an assistant accountant. The tribunal has accepted the evidence given by the respondent on this aspect of the case. The tribunal also remarked that there was no justification for the vice-chairman to reject the application of privilege leave made by the respondent. The order of the vice-chairman dated 4 May, 1960 was that there was "no convincing ground" for the leave application and "moreover adequate and suitable arrangements cannot be made immediately." On the evidence produced by the parties the tribunal has found that there was actual arrangement made for a substitute to work in place of the respondent from 3 May, 1960 to 15 December, 1960 and there was no administrative difficulty in that regard. 6. The tribunal has also stated that the order of the Vice-Chairman dated 4 May, 1960 appears to have been written in two different inks and the second portion of the order appears to be clumsy interpolation. It was also not denied by the municipality that the privilege leave asked for by the respondent was actually due to him. The tribunal has found that there was no justification for the refusal of the leave due to the respondent and the action of the vice-chairman was, therefore, vindictive. It is well-established that in the case of victimization or unfair labour practice it is open to the industrial tribunal to go into the merits of the case and to investigate whether the order of punishment is justified. And if the tribunal finds victimization or unfair labour practice proved, this Court does not ordinarily examine the correctness or propriety of such finding. We accordingly reject the argument put forward by the appellant on this part of the case.But even assuming that there was no victimization on the part of the municipality and the tribunal was erroneous in reopening the findings of domestic enquiry, we are of opinion that it is not a proper case in which this Court ought to interfere under Art. 136 of the Constitution. It is necessary to remember that wide as our powers are under Art. 136 of the Constitution, the exercise of those powers is discretionary and we are satisfied that the order under appeal has done substantial justice to the parties and there is no case made out for interference by this Court. That is the view expressed in Raipur Manufacturing Company, Ltd. v. M. N. Nagrashna and others [1959 - II L.L.J. 837] and reiterated in B. C. Trivedi v. M. N. Nagrashna [1962 - II L.L.J. 236]. 7. | 0[ds]The tribunal held that the proceedings of the domestic enquiry were vitiated because of victimization of the respondent and then of the municipality was actuated with malice and vindictiveness against the respondent. The tribunal held on the merits that dismissal of the respondent was not justified and ordered that he should be reinstated to his former post.When the hearing of this appeal commenced, a preliminary objection was raised on behalf of the substituted respondent that the appeal had abated asa DasDey is dead and that the appeal cannot proceed against the substituted respondent. We do not, however, think it necessary to decide this point because we have reached the conclusion that the appeal must be dismissed on the other grounds stated in this judgmentIt isd that in the case of victimization or unfair labour practice it is open to the industrial tribunal to go into the merits of the case and to investigate whether the order of punishment is justified. And if the tribunal finds victimization or unfair labour practice proved, this Court does not ordinarily examine the correctness or propriety of such finding. We accordingly reject the argument put forward by the appellant on this part of the case.But even assuming that there was no victimization on the part of the municipality and the tribunal was erroneous in reopening the findings of domestic enquiry, we are of opinion that it is not a proper case in which this Court ought to interfere under Art. 136 of the Constitution.It isnecessary to remember that wide as our powers are under Art. 136 of the Constitution, the exercise of those powers is discretionary and we are satisfied that the order under appeal has done substantial justice to the parties and there is no case made out for interference by this Court. That is the view expressed in Raipur Manufacturing Company, Ltd. v. M. N. Nagrashna and others [1959II L.L.J. 837] and reiterated in B. C. Trivedi v. M. N. Nagrashna [1962II L.L.J. 236]. | 0 | 1,552 | 357 | ### 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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which date he started absenting himself without caring for sanction of leave and without giving opportunity to the administration to make necessary arrangement. (2) That since 3 May, 1960 he has been absenting himself in such unauthorized manner uptill now. (3) That he was informed of his obligation to submit medical certificate in support of his plea of illness but he did not : moreover he declined to do so in his letter dated 15 May, 1960. (4) That he is defying the administration by non-compliance and continuing his unauthorized absence uptill now (i.e., up to 17 May, 1960)." The secretary of the municipality held a domestic enquiry into the charges contained in the two chargesheet and held that the charges were proved against the respondent. After receipt of the report of the enquiry officer, the vice-chairman of the municipality dismissed the respondent by his order dated 16 September, 1960 with retrospective effect from 3 May, 1960. 3. The tribunal held that the proceedings of the domestic enquiry were vitiated because of victimization of the respondent and the Vice-chairman of the municipality was actuated with malice and vindictiveness against the respondent. The tribunal held on the merits that dismissal of the respondent was not justified and ordered that he should be reinstated to his former post.When the hearing of this appeal commenced, a preliminary objection was raised on behalf of the substituted respondent that the appeal had abated as Mansa Das Dey is dead and that the appeal cannot proceed against the substituted respondent. We do not, however, think it necessary to decide this point because we have reached the conclusion that the appeal must be dismissed on the other grounds stated in this judgment. 4. The first question arising in this appeal is whether the respondent-Mansa Das Dey-was a "workman" within the meaning of the Industrial Disputes Act and whether the tribunal had jurisdiction to entertain his complaint under S.33A of the Industrial Disputes Act. The learned Solicitor-General on behalf of the appellant did not, however, argue this point in view of the decision of this Court in Corporation of City of Nagpur v. Its employees [1960 - I L.L.J. 523]. 5. It was then contended by the learned Solicitor-General on behalf of the appellant that there was a proper domestic enquiry by the secretary of the municipality and the charges against the respondent were held to be established. It was contended that the tribunal had no jurisdiction to enter into the merits of the case again and to embark upon a reappraisal of the evidence. It was pointed out that the respondent was deliberately absenting himself from duty from 3 May, 1960 till 17 June, 1960 without the permission of the authorities and the two letters he wrote to the Collector dated 10 May, 1960 and 15 May, 1960 showed lack of discipline. We do not agree with the argument of Solicitor-General that the tribunal had no jurisdiction to enter into the evidence in the special circumstances of this case. It was alleged by the respondent that there was ill-feeling between him and the vice-chairman of the municipality. The respondent was secretary of the Howrah Municipal Employees Association and was also a member of the Anti-Corruption Board formed by the Howrah Municipality. The respondent had objected to the malpractice of the vice-chairman in employing some menials of the municipality to work at his house. The respondent also objected to the favoritism shown by the vice-chairman in the appointment of an assistant accountant. The tribunal has accepted the evidence given by the respondent on this aspect of the case. The tribunal also remarked that there was no justification for the vice-chairman to reject the application of privilege leave made by the respondent. The order of the vice-chairman dated 4 May, 1960 was that there was "no convincing ground" for the leave application and "moreover adequate and suitable arrangements cannot be made immediately." On the evidence produced by the parties the tribunal has found that there was actual arrangement made for a substitute to work in place of the respondent from 3 May, 1960 to 15 December, 1960 and there was no administrative difficulty in that regard. 6. The tribunal has also stated that the order of the Vice-Chairman dated 4 May, 1960 appears to have been written in two different inks and the second portion of the order appears to be clumsy interpolation. It was also not denied by the municipality that the privilege leave asked for by the respondent was actually due to him. The tribunal has found that there was no justification for the refusal of the leave due to the respondent and the action of the vice-chairman was, therefore, vindictive. It is well-established that in the case of victimization or unfair labour practice it is open to the industrial tribunal to go into the merits of the case and to investigate whether the order of punishment is justified. And if the tribunal finds victimization or unfair labour practice proved, this Court does not ordinarily examine the correctness or propriety of such finding. We accordingly reject the argument put forward by the appellant on this part of the case.But even assuming that there was no victimization on the part of the municipality and the tribunal was erroneous in reopening the findings of domestic enquiry, we are of opinion that it is not a proper case in which this Court ought to interfere under Art. 136 of the Constitution. It is necessary to remember that wide as our powers are under Art. 136 of the Constitution, the exercise of those powers is discretionary and we are satisfied that the order under appeal has done substantial justice to the parties and there is no case made out for interference by this Court. That is the view expressed in Raipur Manufacturing Company, Ltd. v. M. N. Nagrashna and others [1959 - II L.L.J. 837] and reiterated in B. C. Trivedi v. M. N. Nagrashna [1962 - II L.L.J. 236]. 7.
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0
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The tribunal held that the proceedings of the domestic enquiry were vitiated because of victimization of the respondent and then of the municipality was actuated with malice and vindictiveness against the respondent. The tribunal held on the merits that dismissal of the respondent was not justified and ordered that he should be reinstated to his former post.When the hearing of this appeal commenced, a preliminary objection was raised on behalf of the substituted respondent that the appeal had abated asa DasDey is dead and that the appeal cannot proceed against the substituted respondent. We do not, however, think it necessary to decide this point because we have reached the conclusion that the appeal must be dismissed on the other grounds stated in this judgmentIt isd that in the case of victimization or unfair labour practice it is open to the industrial tribunal to go into the merits of the case and to investigate whether the order of punishment is justified. And if the tribunal finds victimization or unfair labour practice proved, this Court does not ordinarily examine the correctness or propriety of such finding. We accordingly reject the argument put forward by the appellant on this part of the case.But even assuming that there was no victimization on the part of the municipality and the tribunal was erroneous in reopening the findings of domestic enquiry, we are of opinion that it is not a proper case in which this Court ought to interfere under Art. 136 of the Constitution.It isnecessary to remember that wide as our powers are under Art. 136 of the Constitution, the exercise of those powers is discretionary and we are satisfied that the order under appeal has done substantial justice to the parties and there is no case made out for interference by this Court. That is the view expressed in Raipur Manufacturing Company, Ltd. v. M. N. Nagrashna and others [1959II L.L.J. 837] and reiterated in B. C. Trivedi v. M. N. Nagrashna [1962II L.L.J. 236].
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Commissioner of Income Tax, West Bengal Vs. Brij Lal Lohia and Mahabir Prasad Khemka (Executors of The Late Kanailal Lohia) | came up for consideration before the authorities under the Act while dealing with the assessments with which we are concerned in this case. In those cases the assessee adduced considerable additional evidence and on the basis of that evidence the Tribunal after taking into consideration the decisions rendered by the Tribunal in the previous proceeding came to the conclusion that the gifts in question are genuine gifts. In arriving at that conclusion the Tribunal had taken into consideration various circumstances and those circumstances as set out by the Tribunal are as follows" (a) On going through the capital account and the wealth statement of the assessee, the Tribunal found that before making this gift to the said persons the total amount standing to his credit was as follows : (i) A sum of Rs. 16, 79, 223 and Rs. 61, 968 as the balance left over to his credit in his profit and loss account (ii) A sum of Rs. 6, 32, 804 being his credit balance in his capital account in the partnership business styled Kanailal Lohia (Jute Press). These items, namely, in (i) and (ii), taken together, worked out to Rs. 23, 73, 995 (iii) House properties whose value had been estimated at Rs. 19, 00, 000 (iv) Besides those the assessee had certain further assets which had remained undisclosed till the year 1951, valued at over Rs. 20, 00, 000. " 3. The Tribunal accordingly held that the assessees financial position was such that he was capable of making gifts to his brother and nephew of 7, 61, 101. Proreeding further, the Tribunal observed : " (b) The donee after having received the gifts head deposited the said amounts with the National City Bank of New York, which bank had certified that it was the account of a firm whose partners were Messrs. Brijlal Lohia and Nandkishore Lohia and it was those persons only who were authorised to sign for and on behalf of the said firm. There were other banks also with whom the said two partners of the said firm had opened up accounts and they had also certified to the same effect (c) Affidavit dated 8th September, 1954, sworn by the assessee, in which he had stated that he had given Rs. 5, 11, 101 and Rs. 2, 50, 000 to his brother, Brijlal Lohia, and nephew, Nandkishore Lohia, respectively, and that he had no concern, right, title or interest whatsoever in the aforesaid gifted money or any business carried on by his said brother and nephew(d) Letters from Jwalaprasad Bhartia and Kashiram Lohia, who were persons in the know of the factum of the making of the gifts and testified that in fact the assessee had gifted the aforesaid amounts to his brother and nephew (e) The Tribunal also considered that the assessee had no issues and having enough to spare, he was making charities of substantial amounts to various institutions. Such of the institutions to whom the assessee had given donations, were (i) Lohia Charity Trust wherein a sum of Rs. 1, 26, 000 was donated ; (ii) K. L. Lohia Charity Trust to whom Rs. 2, 00, 000 had been donated, and (iii) Lohia College, which received Rs. 2, 03, 000 as donation from the assessee. " 4. The Tribunal took into consideration the following further circumstances (a) Registration of the firm, Messrs. Brijlal Nandkishore, under section 65 of the Indian Partnership Act with the Registrar of Firms on the 23rd December, 1948 ; (b) Sales tax registration certificates showing the two persons, namely, Brijlal Lohia and Nandkishore Lohia, as partners of the firm known as Messrs. Brijlal Nandkishore ; (c) Affidavit dated the 8th September, 1954, sworn by the assessee stating therein that he had given Rs. 5, 11, 101 and Rs. 2, 50, 000 to his brother, Brijlal Lohia, and nephew, Nandkishore Lohia, absolutely and that he had no concern, right, title or interest whatsoever in the aforesaid gifted money or in any business carried on by his said brother and nephew ; (d) Copies of the personal accounts of Brijlal Lohia and Nandkishore Lohia in the books of the partnership to show that the gifted amount was introduced by them as their capital in their partnership business and the withdrawals made by them out of the business were so negligible that it carried no meaning in saying that the profits from their business was being indirectly diverted to the assessee under the guise of these withdrawals ;(f) The assessee exercised no control at all either over the money gifted or the partnership business and had unequivocally given out on affidavit, adversely to his interest, that he had absolutely no interest in them. " 5. Any of the circumstances taken into consideration by the Tribunal cannot be said to be an irrelevant circumstance. Those circumstances have material bearing on the point in issue. It is not said that the Tribunal had ignored any one of the relevant circumstances. All that is said on behalf of the revenue is that the Tribunal has not taken into consideration the evidence of Mr. Majumdar given in the previous proceedings. Mr. Majumdars evidence was not before the Tribunal when it dealt with the cases with which we are concerned in these appeals. Therefore, the Tribunal could not have considered the evidence of Mr. Majumdar On going through the Tribunals order, we are satisfied that the finding of the Tribunal cannot be said to be a perverse finding. That finding being finding of facts, it was not open to the High Court nor is it open to this court to interfere with that finding 6. The fact that in the earlier proceedings the Tribunal took a different view of those deeds is not a conclusive circumstance. The decision of the Tribunal reached during those proceedings does not operate as res judicata. As seen earlier there was a great deal more evidence before the Tribunal during the present proceedings, relating to those gift deeds 7. | 0[ds]On going through the Tribunals order, we are satisfied that the finding of the Tribunal cannot be said to be a perverse finding. That finding being finding of facts, it was not open to the High Court nor is it open to this court to interfere with that findingThe fact that in the earlier proceedings the Tribunal took a different view of those deeds is not a conclusive circumstance. The decision of the Tribunal reached during those proceedings does not operate as res judicata. As seen earlier there was a great deal more evidence before the Tribunal during the present proceedings, relating to those gift deeds | 0 | 1,506 | 117 | ### 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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came up for consideration before the authorities under the Act while dealing with the assessments with which we are concerned in this case. In those cases the assessee adduced considerable additional evidence and on the basis of that evidence the Tribunal after taking into consideration the decisions rendered by the Tribunal in the previous proceeding came to the conclusion that the gifts in question are genuine gifts. In arriving at that conclusion the Tribunal had taken into consideration various circumstances and those circumstances as set out by the Tribunal are as follows" (a) On going through the capital account and the wealth statement of the assessee, the Tribunal found that before making this gift to the said persons the total amount standing to his credit was as follows : (i) A sum of Rs. 16, 79, 223 and Rs. 61, 968 as the balance left over to his credit in his profit and loss account (ii) A sum of Rs. 6, 32, 804 being his credit balance in his capital account in the partnership business styled Kanailal Lohia (Jute Press). These items, namely, in (i) and (ii), taken together, worked out to Rs. 23, 73, 995 (iii) House properties whose value had been estimated at Rs. 19, 00, 000 (iv) Besides those the assessee had certain further assets which had remained undisclosed till the year 1951, valued at over Rs. 20, 00, 000. " 3. The Tribunal accordingly held that the assessees financial position was such that he was capable of making gifts to his brother and nephew of 7, 61, 101. Proreeding further, the Tribunal observed : " (b) The donee after having received the gifts head deposited the said amounts with the National City Bank of New York, which bank had certified that it was the account of a firm whose partners were Messrs. Brijlal Lohia and Nandkishore Lohia and it was those persons only who were authorised to sign for and on behalf of the said firm. There were other banks also with whom the said two partners of the said firm had opened up accounts and they had also certified to the same effect (c) Affidavit dated 8th September, 1954, sworn by the assessee, in which he had stated that he had given Rs. 5, 11, 101 and Rs. 2, 50, 000 to his brother, Brijlal Lohia, and nephew, Nandkishore Lohia, respectively, and that he had no concern, right, title or interest whatsoever in the aforesaid gifted money or any business carried on by his said brother and nephew(d) Letters from Jwalaprasad Bhartia and Kashiram Lohia, who were persons in the know of the factum of the making of the gifts and testified that in fact the assessee had gifted the aforesaid amounts to his brother and nephew (e) The Tribunal also considered that the assessee had no issues and having enough to spare, he was making charities of substantial amounts to various institutions. Such of the institutions to whom the assessee had given donations, were (i) Lohia Charity Trust wherein a sum of Rs. 1, 26, 000 was donated ; (ii) K. L. Lohia Charity Trust to whom Rs. 2, 00, 000 had been donated, and (iii) Lohia College, which received Rs. 2, 03, 000 as donation from the assessee. " 4. The Tribunal took into consideration the following further circumstances (a) Registration of the firm, Messrs. Brijlal Nandkishore, under section 65 of the Indian Partnership Act with the Registrar of Firms on the 23rd December, 1948 ; (b) Sales tax registration certificates showing the two persons, namely, Brijlal Lohia and Nandkishore Lohia, as partners of the firm known as Messrs. Brijlal Nandkishore ; (c) Affidavit dated the 8th September, 1954, sworn by the assessee stating therein that he had given Rs. 5, 11, 101 and Rs. 2, 50, 000 to his brother, Brijlal Lohia, and nephew, Nandkishore Lohia, absolutely and that he had no concern, right, title or interest whatsoever in the aforesaid gifted money or in any business carried on by his said brother and nephew ; (d) Copies of the personal accounts of Brijlal Lohia and Nandkishore Lohia in the books of the partnership to show that the gifted amount was introduced by them as their capital in their partnership business and the withdrawals made by them out of the business were so negligible that it carried no meaning in saying that the profits from their business was being indirectly diverted to the assessee under the guise of these withdrawals ;(f) The assessee exercised no control at all either over the money gifted or the partnership business and had unequivocally given out on affidavit, adversely to his interest, that he had absolutely no interest in them. " 5. Any of the circumstances taken into consideration by the Tribunal cannot be said to be an irrelevant circumstance. Those circumstances have material bearing on the point in issue. It is not said that the Tribunal had ignored any one of the relevant circumstances. All that is said on behalf of the revenue is that the Tribunal has not taken into consideration the evidence of Mr. Majumdar given in the previous proceedings. Mr. Majumdars evidence was not before the Tribunal when it dealt with the cases with which we are concerned in these appeals. Therefore, the Tribunal could not have considered the evidence of Mr. Majumdar On going through the Tribunals order, we are satisfied that the finding of the Tribunal cannot be said to be a perverse finding. That finding being finding of facts, it was not open to the High Court nor is it open to this court to interfere with that finding 6. The fact that in the earlier proceedings the Tribunal took a different view of those deeds is not a conclusive circumstance. The decision of the Tribunal reached during those proceedings does not operate as res judicata. As seen earlier there was a great deal more evidence before the Tribunal during the present proceedings, relating to those gift deeds 7.
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On going through the Tribunals order, we are satisfied that the finding of the Tribunal cannot be said to be a perverse finding. That finding being finding of facts, it was not open to the High Court nor is it open to this court to interfere with that findingThe fact that in the earlier proceedings the Tribunal took a different view of those deeds is not a conclusive circumstance. The decision of the Tribunal reached during those proceedings does not operate as res judicata. As seen earlier there was a great deal more evidence before the Tribunal during the present proceedings, relating to those gift deeds
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The Commissioner Of Income-Tax,Bihar And Orissa Vs. Sri Ramakrishna Deo | decision of the High Court that the income thus realised is within the exemption under S. 4 (3) viii) could be supported even on the view of law taken in 1958 S C R 101 : ((S) AIR 1957 SC 768 ). The argument was that there was unimpeachable evidence that the old forests had disappeared under Podu cultivation, that the estate had been regularly engaged in planting trees at least from the year 1904, as is shown by the accounts of the zamin, that it was a reasonable inference to make that there had been similar plantations even during the years prior to 1904 notwithstanding that no accounts were produced for those years, because it would not be reasonable to expect that such accounts would now be available, that though the amount shown as spent for plantation might not be considerable, that was understandable when regard is had to the fact that the agricultural operations were conducted on the hills and not on the plains, that, on these facts, it would be proper to conclude that the forests were in their entirety the result of plantation. It would be an erroneous approach, it was argued, to call upon the assessee to prove tree by tree that it was planted.Now, these are matters of appreciation of evidence on what is essentially a question, of fact, viz., whether the trees were of spontaneous growth or were products of plantation. On this, the Tribunal has given a clear finding on a consideration of all the material evidence, and its finding is final and not open to challenge in a reference under S. 66 (1) of the Act.Even the learned Judges of the High Court who considered themselves free to review that finding-and, as already pointed out, without -justification, could only observe that the trees must have mostly grown from the stumps left when the forests were burnt for purposes of Podu cultivation - a finding which is fatal to the contention now urged for the respondent that they were the result of plantation. We are of opinion that there are no grounds on which the finding of the Tribunal could be attacked in these proceedings.9. It remains to deal with one other contention urged on behalf of the respondent, and that is based on the fact that the amounts spent in the upkeep of the forests were large in comparison with the receipts therefrom. The following are the figures relating to the forest receipts and expenses for the years with which the present assessments are concerned :YearsReceiptsExpenses1942 43Rs. 438,894Rs. 174,4371943-44Rs. 407,447Rs. 209,8951944 45Rs. 552,122Rs. 228,8301945-46Rs. 372,971Rs. 247,2161946-47Rs. 689,366Rs. 460,369The argument is that from the high proportion of the expenses in relation to the receipts it could be inferred that the income from trees planted by the estate formed a substantial portion of the income derived from the forests. And support for this conclusion is sought in the following observations in 1958 S.C R 101 : (AIR 1957 S C 768) :"The expenditure shown by the assessee for the maintenance of the forest is about Rs.17,000 as against a total income of about Rs. 51,000. Having regard to the magnitude of this figure, we think that a substantial portion of the income must have been derived from trees planted by the proprietors themselves."10. To appreciate the true import of these observations, we must have regard to the context in which they occur. The facts found in that case were that portions of the forest which was originally of spontaneous growth had gradually been denuded, that the proprietor had planted trees in the areas so denuded, that this had gone on for a period of over 150 years, and that therefore "the whole of the income derived from the forest cannot be treated as non-agricultural income". It was then observed that "If the enquiry had been directed on proper lines, it would have been possible for the Income-tax authorities to ascertain how much of the income is attributable to forest of spontaneous growth and how much to trees planted by the proprietor", but that, in view of the long lapse of time, it was not desirable to remand the case for enquiry into the matter. Then follow the observations on which the respondent relies, and when read in the light of the findings that the plantations made by the proprietors were not negligible, they mean nothing more than that out of the total income a substantial portion was likely to be agricultural income, and that it was therefore not a fit case for ordering fresh enquiry.These observations do not lay down that if considerable amounts are expended in the maintenance of forests, then it must be held that the trees were planted by the proprietors. They only mean that it a considerable portion of the forests is found to have been planted, a substantial portion of the forest income may be taken to have been derived therefrom. And this too, it must be remarked, is only a presumption of fact, the strength of which must depend on all facts found.In the face of the clear finding in the present case that the forests with which the assessment years are concerned were of spontaneous growth, the observations quoted above can be of no assistance to the respondent, it is scarcely necessary to add that the observations "If the enquiry had been directed on proper lines, it would have been possible for the Income-tax authorities to ascertain how much of the income is attributable to forest of spontaneous growth and how much to trees planted by the proprietors" quoted above cannot be read, as was sought to be done for the respondent, as throwing on the Department the burden of showing that the income sought to be taxed was not agricultural income. That, in their context, is not the true meaning of the observations, and the law is as laid down in 1956-29 I T R 529: ((S ) A I R 1956 S C 522). | 1[ds]5. At the very outset, we should dissent from the view expressed by the learned Judges that the burden is on the department to prove that the income sought to be taxed is not agricultural income.The law is well settled that it is for a person who claims exemption to establish it, and there is no reason why it should be otherwise when the exemption claimed is under the Income taxis ample authority for the view that the principle that a person who claims the benefit of an exemption has to establish it, applies when the exemption claimed is under the provisions of theAct. Vide the observations of the Lord President and of Lord Adam in Maughan v. Free Church of Scotland,Tax Cas 207 at p. 210and the observations of Lord Hanworth, M. R. in Keren Kayemeth Le Jisroel Ltd. v. Commissioners of Inland Revenue,Tax Cas 27 at p.decisions of Indian Courts have likewise ruled and quite rightly that it is for those who seek exemption under S. 4 of the Act to establish it. Vide Amritsar Produce Exchange Ltd., In re,I T R 307 at p. 327 : ( AIR 1938 Cal 44 at p. 48) and Sm. Charusila Dassi, In re,1 T R 362 at p. 370 : (AIR 1947 Cal 148 at p. 151).On the merits, the question what is agricultural income within S. 2 (1) of the Act is the subject of a recent decision of this Court in Commissioner ofWest Bengal, Calcutta v. Benoy Kumar Shahs Roy, 1958 S C R 101 at pp. 158 155, and 160:((S) AIR 1957 S C 768 at pp. 788, 789 and 790). There, it was held that before an income could be held to be agricultural income, it must be shown to have been derived from land by agriculture or by one or the other of the operations describe in cls. (i) and (ii) of S. 2 (1) (b) of the Act, that the term "agriculture" meant, in its ordinary sense, cultivation of the field, that in that sense it would connote such basic operations as tilling of the land, sowing of trees, plantation and the like, and that though subsequent operations such as weeding, pruning, watering, digging the soil around the growth and removing under growths could be regarded as agricultural operations when they are taken in conjunction with and as continution of the basic operations mentioned before, they could not, apart from those operations, be regarded as bearing the character of agriculturalthese are matters of appreciation of evidence on what is essentially a question, of fact, viz., whether the trees were of spontaneous growth or were products of plantation. On this, the Tribunal has given a clear finding on a consideration of all the material evidence, and its finding is final and not open to challenge in a reference under S. 66 (1) of the Act.Even the learned Judges of the High Court who considered themselves free to review thatas already pointed out, withoutjustification, could only observe that the trees must have mostly grown from the stumps left when the forests were burnt for purposes of Podu cultivationa finding which is fatal to the contention now urged for the respondent that they were the result of plantation. We are of opinion that there are no grounds on which the finding of the Tribunal could be attacked in theseobservations do not lay down that if considerable amounts are expended in the maintenance of forests, then it must be held that the trees were planted by the proprietors. They only mean that it a considerable portion of the forests is found to have been planted, a substantial portion of the forest income may be taken to have been derived therefrom. And this too, it must be remarked, is only a presumption of fact, the strength of which must depend on all facts found.In the face of the clear finding in the present case that the forests with which the assessment years are concerned were of spontaneous growth, the observations quoted above can be of no assistance to the respondent, it is scarcely necessary to add that the observations "If the enquiry had been directed on proper lines, it would have been possible for theauthorities to ascertain how much of the income is attributable to forest of spontaneous growth and how much to trees planted by the proprietors" quoted above cannot be read, as was sought to be done for the respondent, as throwing on the Department the burden of showing that the income sought to be taxed was not agricultural income. That, in their context, is not the true meaning of the observations, and the law is as laid down inI T R 529: ((S ) A I R 1956 S C 522). | 1 | 4,547 | 896 | ### Instruction:
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### Input:
decision of the High Court that the income thus realised is within the exemption under S. 4 (3) viii) could be supported even on the view of law taken in 1958 S C R 101 : ((S) AIR 1957 SC 768 ). The argument was that there was unimpeachable evidence that the old forests had disappeared under Podu cultivation, that the estate had been regularly engaged in planting trees at least from the year 1904, as is shown by the accounts of the zamin, that it was a reasonable inference to make that there had been similar plantations even during the years prior to 1904 notwithstanding that no accounts were produced for those years, because it would not be reasonable to expect that such accounts would now be available, that though the amount shown as spent for plantation might not be considerable, that was understandable when regard is had to the fact that the agricultural operations were conducted on the hills and not on the plains, that, on these facts, it would be proper to conclude that the forests were in their entirety the result of plantation. It would be an erroneous approach, it was argued, to call upon the assessee to prove tree by tree that it was planted.Now, these are matters of appreciation of evidence on what is essentially a question, of fact, viz., whether the trees were of spontaneous growth or were products of plantation. On this, the Tribunal has given a clear finding on a consideration of all the material evidence, and its finding is final and not open to challenge in a reference under S. 66 (1) of the Act.Even the learned Judges of the High Court who considered themselves free to review that finding-and, as already pointed out, without -justification, could only observe that the trees must have mostly grown from the stumps left when the forests were burnt for purposes of Podu cultivation - a finding which is fatal to the contention now urged for the respondent that they were the result of plantation. We are of opinion that there are no grounds on which the finding of the Tribunal could be attacked in these proceedings.9. It remains to deal with one other contention urged on behalf of the respondent, and that is based on the fact that the amounts spent in the upkeep of the forests were large in comparison with the receipts therefrom. The following are the figures relating to the forest receipts and expenses for the years with which the present assessments are concerned :YearsReceiptsExpenses1942 43Rs. 438,894Rs. 174,4371943-44Rs. 407,447Rs. 209,8951944 45Rs. 552,122Rs. 228,8301945-46Rs. 372,971Rs. 247,2161946-47Rs. 689,366Rs. 460,369The argument is that from the high proportion of the expenses in relation to the receipts it could be inferred that the income from trees planted by the estate formed a substantial portion of the income derived from the forests. And support for this conclusion is sought in the following observations in 1958 S.C R 101 : (AIR 1957 S C 768) :"The expenditure shown by the assessee for the maintenance of the forest is about Rs.17,000 as against a total income of about Rs. 51,000. Having regard to the magnitude of this figure, we think that a substantial portion of the income must have been derived from trees planted by the proprietors themselves."10. To appreciate the true import of these observations, we must have regard to the context in which they occur. The facts found in that case were that portions of the forest which was originally of spontaneous growth had gradually been denuded, that the proprietor had planted trees in the areas so denuded, that this had gone on for a period of over 150 years, and that therefore "the whole of the income derived from the forest cannot be treated as non-agricultural income". It was then observed that "If the enquiry had been directed on proper lines, it would have been possible for the Income-tax authorities to ascertain how much of the income is attributable to forest of spontaneous growth and how much to trees planted by the proprietor", but that, in view of the long lapse of time, it was not desirable to remand the case for enquiry into the matter. Then follow the observations on which the respondent relies, and when read in the light of the findings that the plantations made by the proprietors were not negligible, they mean nothing more than that out of the total income a substantial portion was likely to be agricultural income, and that it was therefore not a fit case for ordering fresh enquiry.These observations do not lay down that if considerable amounts are expended in the maintenance of forests, then it must be held that the trees were planted by the proprietors. They only mean that it a considerable portion of the forests is found to have been planted, a substantial portion of the forest income may be taken to have been derived therefrom. And this too, it must be remarked, is only a presumption of fact, the strength of which must depend on all facts found.In the face of the clear finding in the present case that the forests with which the assessment years are concerned were of spontaneous growth, the observations quoted above can be of no assistance to the respondent, it is scarcely necessary to add that the observations "If the enquiry had been directed on proper lines, it would have been possible for the Income-tax authorities to ascertain how much of the income is attributable to forest of spontaneous growth and how much to trees planted by the proprietors" quoted above cannot be read, as was sought to be done for the respondent, as throwing on the Department the burden of showing that the income sought to be taxed was not agricultural income. That, in their context, is not the true meaning of the observations, and the law is as laid down in 1956-29 I T R 529: ((S ) A I R 1956 S C 522).
### Response:
1
### Explanation:
5. At the very outset, we should dissent from the view expressed by the learned Judges that the burden is on the department to prove that the income sought to be taxed is not agricultural income.The law is well settled that it is for a person who claims exemption to establish it, and there is no reason why it should be otherwise when the exemption claimed is under the Income taxis ample authority for the view that the principle that a person who claims the benefit of an exemption has to establish it, applies when the exemption claimed is under the provisions of theAct. Vide the observations of the Lord President and of Lord Adam in Maughan v. Free Church of Scotland,Tax Cas 207 at p. 210and the observations of Lord Hanworth, M. R. in Keren Kayemeth Le Jisroel Ltd. v. Commissioners of Inland Revenue,Tax Cas 27 at p.decisions of Indian Courts have likewise ruled and quite rightly that it is for those who seek exemption under S. 4 of the Act to establish it. Vide Amritsar Produce Exchange Ltd., In re,I T R 307 at p. 327 : ( AIR 1938 Cal 44 at p. 48) and Sm. Charusila Dassi, In re,1 T R 362 at p. 370 : (AIR 1947 Cal 148 at p. 151).On the merits, the question what is agricultural income within S. 2 (1) of the Act is the subject of a recent decision of this Court in Commissioner ofWest Bengal, Calcutta v. Benoy Kumar Shahs Roy, 1958 S C R 101 at pp. 158 155, and 160:((S) AIR 1957 S C 768 at pp. 788, 789 and 790). There, it was held that before an income could be held to be agricultural income, it must be shown to have been derived from land by agriculture or by one or the other of the operations describe in cls. (i) and (ii) of S. 2 (1) (b) of the Act, that the term "agriculture" meant, in its ordinary sense, cultivation of the field, that in that sense it would connote such basic operations as tilling of the land, sowing of trees, plantation and the like, and that though subsequent operations such as weeding, pruning, watering, digging the soil around the growth and removing under growths could be regarded as agricultural operations when they are taken in conjunction with and as continution of the basic operations mentioned before, they could not, apart from those operations, be regarded as bearing the character of agriculturalthese are matters of appreciation of evidence on what is essentially a question, of fact, viz., whether the trees were of spontaneous growth or were products of plantation. On this, the Tribunal has given a clear finding on a consideration of all the material evidence, and its finding is final and not open to challenge in a reference under S. 66 (1) of the Act.Even the learned Judges of the High Court who considered themselves free to review thatas already pointed out, withoutjustification, could only observe that the trees must have mostly grown from the stumps left when the forests were burnt for purposes of Podu cultivationa finding which is fatal to the contention now urged for the respondent that they were the result of plantation. We are of opinion that there are no grounds on which the finding of the Tribunal could be attacked in theseobservations do not lay down that if considerable amounts are expended in the maintenance of forests, then it must be held that the trees were planted by the proprietors. They only mean that it a considerable portion of the forests is found to have been planted, a substantial portion of the forest income may be taken to have been derived therefrom. And this too, it must be remarked, is only a presumption of fact, the strength of which must depend on all facts found.In the face of the clear finding in the present case that the forests with which the assessment years are concerned were of spontaneous growth, the observations quoted above can be of no assistance to the respondent, it is scarcely necessary to add that the observations "If the enquiry had been directed on proper lines, it would have been possible for theauthorities to ascertain how much of the income is attributable to forest of spontaneous growth and how much to trees planted by the proprietors" quoted above cannot be read, as was sought to be done for the respondent, as throwing on the Department the burden of showing that the income sought to be taxed was not agricultural income. That, in their context, is not the true meaning of the observations, and the law is as laid down inI T R 529: ((S ) A I R 1956 S C 522).
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Commissioner Of Income-Tax, Bombay Vs. James Anderson | observations made by Kapur, J. who spoke for the Court in Amarchand Shoffs case, (1963) 48 ITR 59 ( at p. 67) : (AIR 1963 SC 1448 at p. 1452):"In the present case the amounts which are sought to be taxed and which have been held not to be liable to tax are those which were not received in the previous year and are therefore not liable to tax in the several years of assessment. It cannot be said that they were income which may be deemed by fiction to have been received by the dead person and therefore they are not liable to be taxed as income of the deceased, Amarchand, and are not liable to be taxed in the hands of the heirs and legal representatives who cannot be deemed to be assesees for the purpose of assessment in regard to those years,"and on the latter part of the opinion sought to raise two arguments (1) that even if after the expiry of the year of account receipts which if the person earning had not died would have been treated as his income, ceased to be liable to assessment as income of the deceased, they could still be taxed as his income in the hands of the legal representatives and (2) that where the income was notional as under S. 23A the legal personality of the deceased must be regarded as extended to the end of the year in which such notional income must be deemed to have been received by the legal representatives of the deceased. The first argument is plainly inconsistent with what was decided in Amarchand Shroffs case, (1963) 48 ITR 59 : (AIR 1963 SC 1448 ). In that case the Court held that the receipts by the heir or legal representative for professional services rendered by the deceased solicitor were liable to be brought to tax in the hands of the legal representatives only to the limited extent permitted by S. 24B. The second argument involves the importation into the expression deemed by fiction to have been received" a concept which was wholly alien to what was decided by the Court, for in Amarchand Shoroffs case, (1963) 48 ITR 59 : (AIR 1963 SC 1448 ) the Court was dealing not with a fiction of distribution by an order under S. 23A of dividends which never reached the shareholder or his legal representative, but to a fiction of receipt by a deceased person of income by extending his legal personality. Section 24B does not warrant the application of two different interpretations in the matter of extension of the legal personality of the deceased accordingly as the income is actual or notional. Section 24B in terms refers to the liability of the legal representative to pay tax assessed as payable by such deceased person, or any tax which would have been payable by him under the Act if he had not died, and if the expression "tax which would have been payable under this Act, if he had not died" is intended to impose liability for tax on income received in the year of account in the course of which the tax-payer died, a different interpretation of the same expression in the context of notional income would be impermissible. The Legislature not having made any provision generally for assessment of income receivable by the estate of the deceased person, the expression "any tax which would have been payable by him under this Act if he had not died" cannot be deemed to have supplied the machinery for taxation of income received by a legal representative to the estate after the expiry of the year in the course of which such person died.15. It was then urged that apart from S. 24B, the legal representatives of a deceased person also represent his estate in the matter of taxation of income and it is competent to the taxing authorities to assess them on income received on behalf of the estate. Counsel did not rely upon any specific provision of the Act in support of the contention, and merely asserted that the Act seeks to tax all assessable incomes, and income received by a legal representative of the estate of a deceased person should not be permitted to escape tax to the detriment of public revenue. But if the Legislature has failed to set up the procedure to assess such income the Courts cannot supply it. The expression "assessee" in S. 2(2) as substituted by the Indian Income-tax (Amendment) Act, 25 of 1953, with effect from April 1, 1952, means a person by whom income-tax or any other sum of money is payable under the Act, and includes every person in respect of whom any proceeding under this Act has been taken for the assessment of his income or of the loss sustained by him or of the amount of refund due to him.By S. 3 where income-tax is chargeable for any year at any rate or rates prescribed by the Act of the Central Legislature, tax at that rate shall be charged for that year in accordance with and subject to the provisions of the Act in respect of the total income of the previous year of every individual. Hindu undivided family, company, and local authority, and of every firm and other association of persons or the partners of the firm or the members of the association individually. The charge to income-tax has therefore to be in accordance with, and subject to the provisions of the Act, and the Legislature has not provided that the income received by a legal representative which would, but for the death of the deceased, have been received by such deceased person, is to be regarded for the purpose of assessment as the personal income of the legal representative. To assess tax on such receipts on the footing that it is the personal income of the legal representative is to charge tax not in accordance with the provisions of the Act. | 0[ds]Section 24B in terms refers to the liability of the legal representative to pay tax assessed as payable by such deceased person, or any tax which would have been payable by him under the Act if he had not died, and if the expression "tax which would have been payable under this Act, if he had not died" is intended to impose liability for tax on income received in the year of account in the course of which the tax-payer died, a different interpretation of the same expression in the context of notional income would be impermissible. The Legislature not having made any provision generally for assessment of income receivable by the estate of the deceased person, the expression "any tax which would have been payable by him under this Act if he had not died" cannot be deemed to have supplied the machinery for taxation of income received by a legal representative to the estate after the expiry of the year in the course of which such person died.15. It was then urged that apart from S. 24B, the legal representatives of a deceased person also represent his estate in the matter of taxation of income and it is competent to the taxing authorities to assess them on income received on behalf of the estate. Counsel did not rely upon any specific provision of the Act in support of the contention, and merely asserted that the Act seeks to tax all assessable incomes, and income received by a legal representative of the estate of a deceased person should not be permitted to escape tax to the detriment of public revenue. But if the Legislature has failed to set up the procedure to assess such income the Courts cannot supply it. The expression "assessee" in S. 2(2) as substituted by the Indian Income-tax (Amendment) Act, 25 of 1953, with effect from April 1, 1952, means a person by whom income-tax or any other sum of money is payable under the Act, and includes every person in respect of whom any proceeding under this Act has been taken for the assessment of his income or of the loss sustained by him or of the amount of refund due to him.By S. 3 where income-tax is chargeable for any year at any rate or rates prescribed by the Act of the Central Legislature, tax at that rate shall be charged for that year in accordance with and subject to the provisions of the Act in respect of the total income of the previous year of every individual. Hindu undivided family, company, and local authority, and of every firm and other association of persons or the partners of the firm or the members of the association individually. The charge to income-tax has therefore to be in accordance with, and subject to the provisions of the Act, and the Legislature has not provided that the income received by a legal representative which would, but for the death of the deceased, have been received by such deceased person, is to be regarded for the purpose of assessment as the personal income of the legal representative. To assess tax on such receipts on the footing that it is the personal income of the legal representative is to charge tax not in accordance with the provisions of the Act. | 0 | 3,692 | 600 | ### 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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observations made by Kapur, J. who spoke for the Court in Amarchand Shoffs case, (1963) 48 ITR 59 ( at p. 67) : (AIR 1963 SC 1448 at p. 1452):"In the present case the amounts which are sought to be taxed and which have been held not to be liable to tax are those which were not received in the previous year and are therefore not liable to tax in the several years of assessment. It cannot be said that they were income which may be deemed by fiction to have been received by the dead person and therefore they are not liable to be taxed as income of the deceased, Amarchand, and are not liable to be taxed in the hands of the heirs and legal representatives who cannot be deemed to be assesees for the purpose of assessment in regard to those years,"and on the latter part of the opinion sought to raise two arguments (1) that even if after the expiry of the year of account receipts which if the person earning had not died would have been treated as his income, ceased to be liable to assessment as income of the deceased, they could still be taxed as his income in the hands of the legal representatives and (2) that where the income was notional as under S. 23A the legal personality of the deceased must be regarded as extended to the end of the year in which such notional income must be deemed to have been received by the legal representatives of the deceased. The first argument is plainly inconsistent with what was decided in Amarchand Shroffs case, (1963) 48 ITR 59 : (AIR 1963 SC 1448 ). In that case the Court held that the receipts by the heir or legal representative for professional services rendered by the deceased solicitor were liable to be brought to tax in the hands of the legal representatives only to the limited extent permitted by S. 24B. The second argument involves the importation into the expression deemed by fiction to have been received" a concept which was wholly alien to what was decided by the Court, for in Amarchand Shoroffs case, (1963) 48 ITR 59 : (AIR 1963 SC 1448 ) the Court was dealing not with a fiction of distribution by an order under S. 23A of dividends which never reached the shareholder or his legal representative, but to a fiction of receipt by a deceased person of income by extending his legal personality. Section 24B does not warrant the application of two different interpretations in the matter of extension of the legal personality of the deceased accordingly as the income is actual or notional. Section 24B in terms refers to the liability of the legal representative to pay tax assessed as payable by such deceased person, or any tax which would have been payable by him under the Act if he had not died, and if the expression "tax which would have been payable under this Act, if he had not died" is intended to impose liability for tax on income received in the year of account in the course of which the tax-payer died, a different interpretation of the same expression in the context of notional income would be impermissible. The Legislature not having made any provision generally for assessment of income receivable by the estate of the deceased person, the expression "any tax which would have been payable by him under this Act if he had not died" cannot be deemed to have supplied the machinery for taxation of income received by a legal representative to the estate after the expiry of the year in the course of which such person died.15. It was then urged that apart from S. 24B, the legal representatives of a deceased person also represent his estate in the matter of taxation of income and it is competent to the taxing authorities to assess them on income received on behalf of the estate. Counsel did not rely upon any specific provision of the Act in support of the contention, and merely asserted that the Act seeks to tax all assessable incomes, and income received by a legal representative of the estate of a deceased person should not be permitted to escape tax to the detriment of public revenue. But if the Legislature has failed to set up the procedure to assess such income the Courts cannot supply it. The expression "assessee" in S. 2(2) as substituted by the Indian Income-tax (Amendment) Act, 25 of 1953, with effect from April 1, 1952, means a person by whom income-tax or any other sum of money is payable under the Act, and includes every person in respect of whom any proceeding under this Act has been taken for the assessment of his income or of the loss sustained by him or of the amount of refund due to him.By S. 3 where income-tax is chargeable for any year at any rate or rates prescribed by the Act of the Central Legislature, tax at that rate shall be charged for that year in accordance with and subject to the provisions of the Act in respect of the total income of the previous year of every individual. Hindu undivided family, company, and local authority, and of every firm and other association of persons or the partners of the firm or the members of the association individually. The charge to income-tax has therefore to be in accordance with, and subject to the provisions of the Act, and the Legislature has not provided that the income received by a legal representative which would, but for the death of the deceased, have been received by such deceased person, is to be regarded for the purpose of assessment as the personal income of the legal representative. To assess tax on such receipts on the footing that it is the personal income of the legal representative is to charge tax not in accordance with the provisions of the Act.
### Response:
0
### Explanation:
Section 24B in terms refers to the liability of the legal representative to pay tax assessed as payable by such deceased person, or any tax which would have been payable by him under the Act if he had not died, and if the expression "tax which would have been payable under this Act, if he had not died" is intended to impose liability for tax on income received in the year of account in the course of which the tax-payer died, a different interpretation of the same expression in the context of notional income would be impermissible. The Legislature not having made any provision generally for assessment of income receivable by the estate of the deceased person, the expression "any tax which would have been payable by him under this Act if he had not died" cannot be deemed to have supplied the machinery for taxation of income received by a legal representative to the estate after the expiry of the year in the course of which such person died.15. It was then urged that apart from S. 24B, the legal representatives of a deceased person also represent his estate in the matter of taxation of income and it is competent to the taxing authorities to assess them on income received on behalf of the estate. Counsel did not rely upon any specific provision of the Act in support of the contention, and merely asserted that the Act seeks to tax all assessable incomes, and income received by a legal representative of the estate of a deceased person should not be permitted to escape tax to the detriment of public revenue. But if the Legislature has failed to set up the procedure to assess such income the Courts cannot supply it. The expression "assessee" in S. 2(2) as substituted by the Indian Income-tax (Amendment) Act, 25 of 1953, with effect from April 1, 1952, means a person by whom income-tax or any other sum of money is payable under the Act, and includes every person in respect of whom any proceeding under this Act has been taken for the assessment of his income or of the loss sustained by him or of the amount of refund due to him.By S. 3 where income-tax is chargeable for any year at any rate or rates prescribed by the Act of the Central Legislature, tax at that rate shall be charged for that year in accordance with and subject to the provisions of the Act in respect of the total income of the previous year of every individual. Hindu undivided family, company, and local authority, and of every firm and other association of persons or the partners of the firm or the members of the association individually. The charge to income-tax has therefore to be in accordance with, and subject to the provisions of the Act, and the Legislature has not provided that the income received by a legal representative which would, but for the death of the deceased, have been received by such deceased person, is to be regarded for the purpose of assessment as the personal income of the legal representative. To assess tax on such receipts on the footing that it is the personal income of the legal representative is to charge tax not in accordance with the provisions of the Act.
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State Of Mysore & Anr Vs. M. M. Thammaiah & Anr | Act, 1964. Rule 10 is a part of the Rules meant for the guidance of Classifiers for implementing the impending survey settlement. The Rules called "Rules for Classifiers" contain instruction as to how the Classifiers should conduct themselves in making the survey settlement. For example, Rule 1 says that "Each classifier will take up a village which will be assigned to him by the Settlement Officer and will work in it until it is completed". Rule 2 enjoins the Classifiers to have with them the village map, the latest jamabandi register, the crop inspection registers and the mutation register at the time of making the survey. Rule 3 requires the Classifiers to "post in a conspicious place of the village a copy of the Chief Commissioners Notification announcing that the settlement operations have begun". By Rule 4 the classification of wet lands is to be taken up first and for that purpose various details are required to be entered in Form A. Rule 5 contains instructions as to how the Classifiers should fill up that Form. Rules 6, 7 and 8 contain instructions regarding the inquiries which the Classifiers must make at the time of survey settlement. By Rule 9 the Classifiers are required to attend to the work in regard to coffee plantations after completing the work in regard to the wet lands.16. Then comes Rule 10 which begins with the recitals: "The following terms are at present used for lands held for coffee cultivation". Clause (a) of the Rule refers to unalienated banes and the Explanation to that clause contains information about such banes. The second paragraph of the Explanation on which the State relies in support of its alleged right to the trees, by its language refers to a state of affairs that is assumed to exist and does not contain any express order or declaration regarding the reservation of trees in favour of the Government. The very nature and context of the Rules for Classifiers would show that they could not possibly concern themselves with a matter regulating the vesting of a substantive right like the right of the State Government to the trees on Bane lands. At best, Rule 10 may be said to refer to a historical fact.17. The learned Advocate-General of Karnataka who appeared in this appeal at a later stage was not able to support the decision of the High Court on the construction of Rule 10. But he argued that (1) Appellant No.1, not being an occupant, cannot claim the benefit of Section 75 (1) of the Mysore Land Revenue Act, 1964; (2) that, concededly owners of Bane lands like appellant No.1 had no right to the trees growing thereon until April 1, 1964, when the Act of 1964 came into force and Section 75 (1) is not intended to confer on holders of Bane lands a right or privilege not enjoyed by them till then; (3) that Section 75 (1) and 79 (2) of the Act of 1964 must be read together and so read they show that only certain privileges enjoyed by holders of Bane lands were saved by that Act; and (4) that, in any event, Rule 97 (1-A) of the Rules issued under the Coorg Land and Revenue Regulations I-A of 1899 is either in the nature of an express order or a notification within the meaning of Section 75 (1) of the Act of 1964, by which the right of the State Government to the trees growing on Bane lands was reserved.18. These arguments have been controverted by Mr. Javali on behalf of the appellants and by Mr. Pal on behalf of the interveners. In the present state of the record it is not possible to entertain and examine the submissions of the Advocate-General. But that is not entirely the fault of the State Government. The writ petition filed by the appellants in the High Court is utterly sketchy and inadequate. They have not made averments necessary for a proper understanding of their case, they have not disclosed the source and authority of the claim made by appellant No.1 to the trees and they have not traced the history of the right which appellant No.1 claims in the writ petition. The State Government by its counter-affidavit in the High Court rested content with formal denials of the appellants claim though, it is true, there was not much to deny or traverse. The writ petition raised important questions affecting the right of the State Government to trees standing on vast tracts of forest areas and it ought to have shown a greater concern for those rights. The upshot of the matter is that there is no material on the record to enable us to decide the contentions raised by the parties except the one relating to the construction of Rule 10 of the Rules for Classifiers.19. We may also indicate that the only relief sought by the appellants by their writ petition is that Rule 137 of the Mysore Forest Rules, 1969 be struck down as it infringes Article 19 (1) (f) and Article 31 of the Constitution and is inconsistent with Section 75(1) of the Mysore Land Revenue Act, 1964. That rule was deleted during the pendency of this appeal, by the Karnataka Forest (Amendment) Rules, 1973 notified on January 15, 1974. In spite of the deletion of the Rule the appellants did not seek the permission of this Court to amend the writ petition. The only relief sought by the appellants has thus become infructuous.20. In these circumstances, we have decided to relegate the parties to such remedies as they may be advised to adopt for the vindication of their rights. Our judgment will conclude the question regarding the interpretation of Rule 10 of the Rules for Classifiers only. That rule does not contain an "express order" reserving the right of the State Government to the trees growing on Bane lands, within the meaning of Section 75 (1) of the Mysore Land Revenue Act, 1964. | 1[ds]The High Court has held that Rule 10 of the Rules for Classifiers contained in Appendix B to the Coorg Settlement Report, 1910 contains an express reservation of the trees standing on Bane Lands in favour of the State Government. Learned counsel appearing for the State of Mysore has also placed strong reliance on Rule 10 in support of the States contention that the particular trees are vested in it.15.We find it difficult to agree that Rule 10 can be read as an express order reserving the right of the State Government to the trees, within the meaning of Section 75 (1) of the Mysore Land Revenue Act, 1964. Rule 10 is a part of the Rules meant for the guidance of Classifiers for implementing the impending survey settlement. The Rules called "Rules for Classifiers" contain instruction as to how the Classifiers should conduct themselves in making the survey settlement. For example, Rule 1 says that "Each classifier will take up a village which will be assigned to him by the Settlement Officer and will work in it until it is completed". Rule 2 enjoins the Classifiers to have with them the village map, the latest jamabandi register, the crop inspection registers and the mutation register at the time of making the survey. Rule 3 requires the Classifiers to "post in a conspicious place of the village a copy of the Chief Commissioners Notification announcing that the settlement operations have begun". By Rule 4 the classification of wet lands is to be taken up first and for that purpose various details are required to be entered in Form A. Rule 5 contains instructions as to how the Classifiers should fill up that Form. Rules 6, 7 and 8 contain instructions regarding the inquiries which the Classifiers must make at the time of survey settlement. By Rule 9 the Classifiers are required to attend to the work in regard to coffee plantations after completing the work in regard to the wet lands.The learned Advocate-General of Karnataka who appeared in this appeal at a later stage was not able to support the decision of the High Court on the construction of Rule 10. But he argued that (1) Appellant No.1, not being an occupant, cannot claim the benefit of Section 75 (1) of the Mysore Land Revenue Act, 1964; (2) that, concededly owners of Bane lands like appellant No.1 had no right to the trees growing thereon until April 1, 1964, when the Act of 1964 came into force and Section 75 (1) is not intended to confer on holders of Bane lands a right or privilege not enjoyed by them till then; (3) that Section 75 (1) and 79 (2) of the Act of 1964 must be read together and so read they show that only certain privileges enjoyed by holders of Bane lands were saved by that Act; and (4) that, in any event, Rule 97 (1-A) of the Rules issued under the Coorg Land and Revenue Regulations I-A of 1899 is either in the nature of an express order or a notification within the meaning of Section 75 (1) of the Act of 1964, by which the right of the State Government to the trees growing on Bane lands was reserved.18. These arguments have been controverted by Mr. Javali on behalf of the appellants and by Mr. Pal on behalf of the interveners. In the present state of the record it is not possible to entertain and examine the submissions of the Advocate-General. But that is not entirely the fault of the State Government. The writ petition filed by the appellants in the High Court is utterly sketchy and inadequate. They have not made averments necessary for a proper understanding of their case, they have not disclosed the source and authority of the claim made by appellant No.1 to the trees and they have not traced the history of the right which appellant No.1 claims in the writ petition. The State Government by its counter-affidavit in the High Court rested content with formal denials of the appellants claim though, it is true, there was not much to deny or traverse. The writ petition raised important questions affecting the right of the State Government to trees standing on vast tracts of forest areas and it ought to have shown a greater concern for those rights. The upshot of the matter is that there is no material on the record to enable us to decide the contentions raised by the parties except the one relating to the construction of Rule 10 of the Rules for Classifiers.19. We may also indicate that the only relief sought by the appellants by their writ petition is that Rule 137 of the Mysore Forest Rules, 1969 be struck down as it infringes Article 19 (1) (f) and Article 31 of the Constitution and is inconsistent with Section 75(1) of the Mysore Land Revenue Act, 1964. That rule was deleted during the pendency of this appeal, by the Karnataka Forest (Amendment) Rules, 1973 notified on January 15, 1974. In spite of the deletion of the Rule the appellants did not seek the permission of this Court to amend the writ petition. The only relief sought by the appellants has thus become infructuous.20. In these circumstances, we have decided to relegate the parties to such remedies as they may be advised to adopt for the vindication of their rights. Our judgment will conclude the question regarding the interpretation of Rule 10 of the Rules for Classifiers only. That rule does not contain an "express order" reserving the right of the State Government to the trees growing on Bane lands, within the meaning of Section 75 (1) of the Mysore Land Revenue Act, 1964. | 1 | 3,208 | 1,059 | ### 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:
Act, 1964. Rule 10 is a part of the Rules meant for the guidance of Classifiers for implementing the impending survey settlement. The Rules called "Rules for Classifiers" contain instruction as to how the Classifiers should conduct themselves in making the survey settlement. For example, Rule 1 says that "Each classifier will take up a village which will be assigned to him by the Settlement Officer and will work in it until it is completed". Rule 2 enjoins the Classifiers to have with them the village map, the latest jamabandi register, the crop inspection registers and the mutation register at the time of making the survey. Rule 3 requires the Classifiers to "post in a conspicious place of the village a copy of the Chief Commissioners Notification announcing that the settlement operations have begun". By Rule 4 the classification of wet lands is to be taken up first and for that purpose various details are required to be entered in Form A. Rule 5 contains instructions as to how the Classifiers should fill up that Form. Rules 6, 7 and 8 contain instructions regarding the inquiries which the Classifiers must make at the time of survey settlement. By Rule 9 the Classifiers are required to attend to the work in regard to coffee plantations after completing the work in regard to the wet lands.16. Then comes Rule 10 which begins with the recitals: "The following terms are at present used for lands held for coffee cultivation". Clause (a) of the Rule refers to unalienated banes and the Explanation to that clause contains information about such banes. The second paragraph of the Explanation on which the State relies in support of its alleged right to the trees, by its language refers to a state of affairs that is assumed to exist and does not contain any express order or declaration regarding the reservation of trees in favour of the Government. The very nature and context of the Rules for Classifiers would show that they could not possibly concern themselves with a matter regulating the vesting of a substantive right like the right of the State Government to the trees on Bane lands. At best, Rule 10 may be said to refer to a historical fact.17. The learned Advocate-General of Karnataka who appeared in this appeal at a later stage was not able to support the decision of the High Court on the construction of Rule 10. But he argued that (1) Appellant No.1, not being an occupant, cannot claim the benefit of Section 75 (1) of the Mysore Land Revenue Act, 1964; (2) that, concededly owners of Bane lands like appellant No.1 had no right to the trees growing thereon until April 1, 1964, when the Act of 1964 came into force and Section 75 (1) is not intended to confer on holders of Bane lands a right or privilege not enjoyed by them till then; (3) that Section 75 (1) and 79 (2) of the Act of 1964 must be read together and so read they show that only certain privileges enjoyed by holders of Bane lands were saved by that Act; and (4) that, in any event, Rule 97 (1-A) of the Rules issued under the Coorg Land and Revenue Regulations I-A of 1899 is either in the nature of an express order or a notification within the meaning of Section 75 (1) of the Act of 1964, by which the right of the State Government to the trees growing on Bane lands was reserved.18. These arguments have been controverted by Mr. Javali on behalf of the appellants and by Mr. Pal on behalf of the interveners. In the present state of the record it is not possible to entertain and examine the submissions of the Advocate-General. But that is not entirely the fault of the State Government. The writ petition filed by the appellants in the High Court is utterly sketchy and inadequate. They have not made averments necessary for a proper understanding of their case, they have not disclosed the source and authority of the claim made by appellant No.1 to the trees and they have not traced the history of the right which appellant No.1 claims in the writ petition. The State Government by its counter-affidavit in the High Court rested content with formal denials of the appellants claim though, it is true, there was not much to deny or traverse. The writ petition raised important questions affecting the right of the State Government to trees standing on vast tracts of forest areas and it ought to have shown a greater concern for those rights. The upshot of the matter is that there is no material on the record to enable us to decide the contentions raised by the parties except the one relating to the construction of Rule 10 of the Rules for Classifiers.19. We may also indicate that the only relief sought by the appellants by their writ petition is that Rule 137 of the Mysore Forest Rules, 1969 be struck down as it infringes Article 19 (1) (f) and Article 31 of the Constitution and is inconsistent with Section 75(1) of the Mysore Land Revenue Act, 1964. That rule was deleted during the pendency of this appeal, by the Karnataka Forest (Amendment) Rules, 1973 notified on January 15, 1974. In spite of the deletion of the Rule the appellants did not seek the permission of this Court to amend the writ petition. The only relief sought by the appellants has thus become infructuous.20. In these circumstances, we have decided to relegate the parties to such remedies as they may be advised to adopt for the vindication of their rights. Our judgment will conclude the question regarding the interpretation of Rule 10 of the Rules for Classifiers only. That rule does not contain an "express order" reserving the right of the State Government to the trees growing on Bane lands, within the meaning of Section 75 (1) of the Mysore Land Revenue Act, 1964.
### Response:
1
### Explanation:
The High Court has held that Rule 10 of the Rules for Classifiers contained in Appendix B to the Coorg Settlement Report, 1910 contains an express reservation of the trees standing on Bane Lands in favour of the State Government. Learned counsel appearing for the State of Mysore has also placed strong reliance on Rule 10 in support of the States contention that the particular trees are vested in it.15.We find it difficult to agree that Rule 10 can be read as an express order reserving the right of the State Government to the trees, within the meaning of Section 75 (1) of the Mysore Land Revenue Act, 1964. Rule 10 is a part of the Rules meant for the guidance of Classifiers for implementing the impending survey settlement. The Rules called "Rules for Classifiers" contain instruction as to how the Classifiers should conduct themselves in making the survey settlement. For example, Rule 1 says that "Each classifier will take up a village which will be assigned to him by the Settlement Officer and will work in it until it is completed". Rule 2 enjoins the Classifiers to have with them the village map, the latest jamabandi register, the crop inspection registers and the mutation register at the time of making the survey. Rule 3 requires the Classifiers to "post in a conspicious place of the village a copy of the Chief Commissioners Notification announcing that the settlement operations have begun". By Rule 4 the classification of wet lands is to be taken up first and for that purpose various details are required to be entered in Form A. Rule 5 contains instructions as to how the Classifiers should fill up that Form. Rules 6, 7 and 8 contain instructions regarding the inquiries which the Classifiers must make at the time of survey settlement. By Rule 9 the Classifiers are required to attend to the work in regard to coffee plantations after completing the work in regard to the wet lands.The learned Advocate-General of Karnataka who appeared in this appeal at a later stage was not able to support the decision of the High Court on the construction of Rule 10. But he argued that (1) Appellant No.1, not being an occupant, cannot claim the benefit of Section 75 (1) of the Mysore Land Revenue Act, 1964; (2) that, concededly owners of Bane lands like appellant No.1 had no right to the trees growing thereon until April 1, 1964, when the Act of 1964 came into force and Section 75 (1) is not intended to confer on holders of Bane lands a right or privilege not enjoyed by them till then; (3) that Section 75 (1) and 79 (2) of the Act of 1964 must be read together and so read they show that only certain privileges enjoyed by holders of Bane lands were saved by that Act; and (4) that, in any event, Rule 97 (1-A) of the Rules issued under the Coorg Land and Revenue Regulations I-A of 1899 is either in the nature of an express order or a notification within the meaning of Section 75 (1) of the Act of 1964, by which the right of the State Government to the trees growing on Bane lands was reserved.18. These arguments have been controverted by Mr. Javali on behalf of the appellants and by Mr. Pal on behalf of the interveners. In the present state of the record it is not possible to entertain and examine the submissions of the Advocate-General. But that is not entirely the fault of the State Government. The writ petition filed by the appellants in the High Court is utterly sketchy and inadequate. They have not made averments necessary for a proper understanding of their case, they have not disclosed the source and authority of the claim made by appellant No.1 to the trees and they have not traced the history of the right which appellant No.1 claims in the writ petition. The State Government by its counter-affidavit in the High Court rested content with formal denials of the appellants claim though, it is true, there was not much to deny or traverse. The writ petition raised important questions affecting the right of the State Government to trees standing on vast tracts of forest areas and it ought to have shown a greater concern for those rights. The upshot of the matter is that there is no material on the record to enable us to decide the contentions raised by the parties except the one relating to the construction of Rule 10 of the Rules for Classifiers.19. We may also indicate that the only relief sought by the appellants by their writ petition is that Rule 137 of the Mysore Forest Rules, 1969 be struck down as it infringes Article 19 (1) (f) and Article 31 of the Constitution and is inconsistent with Section 75(1) of the Mysore Land Revenue Act, 1964. That rule was deleted during the pendency of this appeal, by the Karnataka Forest (Amendment) Rules, 1973 notified on January 15, 1974. In spite of the deletion of the Rule the appellants did not seek the permission of this Court to amend the writ petition. The only relief sought by the appellants has thus become infructuous.20. In these circumstances, we have decided to relegate the parties to such remedies as they may be advised to adopt for the vindication of their rights. Our judgment will conclude the question regarding the interpretation of Rule 10 of the Rules for Classifiers only. That rule does not contain an "express order" reserving the right of the State Government to the trees growing on Bane lands, within the meaning of Section 75 (1) of the Mysore Land Revenue Act, 1964.
|
State of Tamil Nadu and Others Vs. Messrs Sanjeetha Trading Company and Others | Articles in Part XIII that a purely textual interpretation may not disclose the true intendment of the Articles." * The framers of the Constitution neither wanted to ensure the freedom of trade and commerce on the pattern of the freedom guaranteed by Section 92 of the Australian Constitution nor they thought it proper that the different States should have unfettered and unrestricted power while imposing prohibitions on inter-State trade. In the larger interest of the nation, there must be free flow of trade, commerce and intercourse both inter-State and intra-State but at the same time the regional problems account be ignored altogether. Whenever there is a clash between the national interest and the interest of the State because of which any crisis is created, the Union has power of intervention. According to us, the expression "free trade" cannot be interpreted in an unqualified manner. Any prohibition on movement of any article from one State to another has to be examined with reference to the facts and circumstances of that particular case-whether it amounts to regulation only, taking into consideration the local conditions prevailing, the necessity for such prohibition and what public interest is sought to be served by imposition thereof. The Privy Council in Hughes and Vale Proprietary Ltd. v. State of New South Wales ( 1955 AC 241 : 1954 (3) ALLER 607(PC) said "Every case must be judged on its own facts and in its own setting of time and circumstance, and it maybe that in regard to some economic activities and at some stage of social development it might be maintained that prohibition with a view to State monopoly was the only practical and reasonable manner of regulation, and that inter-State trade, commerce and intercourse thus prohibited and thus monopolized remained absolutely free." * Whenever such prohibitions are introduced in exercise of the powers, conferred by the Essential Commodities Act or any parallel or similar Act including the Act with which we are concerned in the present case, the scope of enquiry or scrutiny can only be to a limited extent because such Acts exist for maintaining, increasing or securing supplies of essential articles and for arranging equitable distribution and availability thereof at fair prices to the common man under emergent situations. The Essential Commodities Act conceives the larger welfare of the largest numbers and contemplates measures to control the essential commodities or articles which are vital to human existence in the society. With that object in view, framers of the Act vested wide powers of Control over the essential articles in the State Governments. The situations prevailing in any particular State may require complete prohibition on the movement of any essential article or commodity outside the State. That is why in the context of the provision of the Essential Commodities Act, it has been said by this Court that imposition of complete prohibition on the movement of the essential commodities from one State to another may in some circumstances amount to regulation of trade in such commodities and it need not always amount to restriction 18. The matter may be different where total prohibition has been imposed on the movement of goods or articles from one State to another which have not been declared to be essential commodities or articles. In those cases the State, which has imposed such ban, has to satisfy the Court that in spite of total prohibition it amounts only to regulation of the trade in such articles or that even if it was a restriction it was reasonable within the meaning of Article 304(b) of the Constitution and has been imposed bylaw as required by Article 304(b). Sometimes it is being said that many artificial barriers on movement of produce of a particular State are being contemplated or imposed only on the consideration of "My-State-My-people". This will only amount to the protection of regional interests for political end and not of public interest. This was not conceived by Chapter XIII of the Constitution. In Charles H. Baldwin v. G.A.F. Seelig, Inc. 294 US 511 :79 L ed 1032 (1934)) While dealing with the commerce clause in the American Constitution, Cardozo. observed "This part of the Constitution was framed under the dominion of a political philosophy less parochial in range. It was framed upon the theory that the peoples of the several States must sink or swim together and that in the long run prosperity and salvation are in union and not division." * 19. So far the present case is concerned, first the timber was declared as an essential article within the meaning of the Act. Thereafter a notified order was promulgated first restricting the transport and movement of timber outside the State except on the basis of permit to be granted in accordance with Tamil Nadu Timber Transit Rules. Later that part was deleted and complete ban on movement of timber from that State to any other State has been imposed. In the counter-affidavit filed before the High Court, it was stated that there was shortage of timber and the total export of timber outside the State was only 2 per cent to 4 per cent of the total timber. It was also impressed that in order to satisfy the local requirement of timber and to make timber which is an essential article available to the common man at a movement and transport of timber outside the State. The writ petitioners did not challenge the declaration of timber as an essential article. It was not suggested that the declaration of timber as an essential article has been made on extraneous considerations and not in public interest. As such it has to be assumed that for arranging the supply of timber at fair prices and for equitable distribution thereof the prohibition has been imposed. In such a situation there is no escape from the conclusion that prohibition shall be deemed to be regulatory in nature and not restrictive so as to attract Article 301 or 304 or 19(1)(g) of the Constitution | 1[ds]The framers of the Constitution thought such intercourse necessary, so that there should be an economic unity of India and there should not be regional or territorial barriers. At the same time, being conscious of the fact that such freedom of trade, commerce and intercourse throughout the territory of India may require to be curbed or curtailed under certain situations taking into consideration the public interest, liberty was given to the Parliament as well as to the Legislatures of the State under Articles 302, 303 and 304 of the Constitution to impose reasonable restrictions on such freedom of trade and commerce or intercourse between one State and another, by following the procedures prescribed in the aforesaidIn the facts and circumstances of the present case, as no law has been made by the Parliament imposing any restriction in respect of timber within the State of Tamil Nadu, we are not concerned with Article 302, or 303; we are concerned only with the question as to whether, the prohibition on transport of timber outside the State of Tamil Nadu is in any way hit by Article 304 of the Constitution. But before Article 304 comes into play, it has to be held that the prohibition introduced by the amendment on movement and transport of timber amounts toIt cannot be disputed that by complete prohibition on the transport of timber from the State of Tamil Nadu to any other State, the trade and commerce in timber grown in the State of Tamil Nadu has been affected and till the prohibition continues there is notrade in timber as conceived by Article 301 of the Constitution. What is the object of ensuring the free movement of trade commerce has been examined by the Court from time to time. In thecase of Atiabari Tea Co. Ltd. v. State of Assam 1961 AIR(SC) 232) it wasdrafting the relevant Articles of Part XIII the makers of the Constitution were fully conscious that economic unity was absolutely essential for the stability and progress of the federal polity which had been adopted by the Constitution for the governance of the country. Political freedom which had been won and political unity which had been accomplished by the Constitution, had to be sustained and strengthened by the bond of economic unity. It was realised that in course of time different political parties believing in different economic theories or ideologies may come in power in the several constituent units of the Union, and that may conceivably give rise to local and regional pulls and pressures in economic matters"The framers of the Constitution while saying under Article 301 of the Constitution that trade, commerce and intercourse throughout the territory of India shall be free were quite conscious of the fact that public interest may require such freedom to be curbed or curtailed and that is why under Article 302 of the Constitution, Parliament was empowered to "impose such restrictions on the freedom of trade, commerce or intercourse between one State and another or within any party of the territory of India as may be required in the public interest" by law. However, the expression reasonable did not recede the word restrictions. The same thing was provided so far State Legislatures were concerned under Article 304(b), vesting them with power to impose "such reasonable restrictions" on freedom of trade, commerce or intercourse with or within that State as may be required in the public interest by law. It need not be pointed out that in Article 304(b) the expression reasonable precedes restrictions and a further check has been provided by saying in the proviso to the said article that"no Bill or amendment for the purpose of clause (b) shall be introduced or moved in the Legislature of a State without the previous sanction of the President.It has been rightly said that"there is such a mixup of exception upon exception in the series of Articles in Part XIII that a purely textual interpretation may not disclose the true intendment of the Articles."framers of the Constitution neither wanted to ensure the freedom of trade and commerce on the pattern of the freedom guaranteed by Section 92 of the Australian Constitution nor they thought it proper that the different States should have unfettered and unrestricted power while imposing prohibitions ontrade. In the larger interest of the nation, there must be free flow of trade, commerce and intercourse bothte but at the same time the regional problems account be ignored altogether. Whenever there is a clash between the national interest and the interest of the State because of which any crisis is created, the Union has power of intervention. According to us, the expression "free trade" cannot be interpreted in an unqualified manner. Any prohibition on movement of any article from one State to another has to be examined with reference to the facts and circumstances of that particularit amounts to regulation only, taking into consideration the local conditions prevailing, the necessity for such prohibition and what public interest is sought to be served by imposition thereof. The Privy Council in Hughes and Vale Proprietary Ltd. v. State of New South Wales ( 1955 AC 241 : 1954 (3) ALLER 607(PC)case must be judged on its own facts and in its own setting of time and circumstance, and it maybe that in regard to some economic activities and at some stage of social development it might be maintained that prohibition with a view to State monopoly was the only practical and reasonable manner of regulation, and thattrade, commerce and intercourse thus prohibited and thus monopolized remained absolutely free."such prohibitions are introduced in exercise of the powers, conferred by the Essential Commodities Act or any parallel or similar Act including the Act with which we are concerned in the present case, the scope of enquiry or scrutiny can only be to a limited extent because such Acts exist for maintaining, increasing or securing supplies of essential articles and for arranging equitable distribution and availability thereof at fair prices to the common man under emergent situations. The Essential Commodities Act conceives the larger welfare of the largest numbers and contemplates measures to control the essential commodities or articles which are vital to human existence in the society. With that object in view, framers of the Act vested wide powers of Control over the essential articles in the State Governments. The situations prevailing in any particular State may require complete prohibition on the movement of any essential article or commodity outside the State. That is why in the context of the provision of the Essential Commodities Act, it has been said by this Court that imposition of complete prohibition on the movement of the essential commodities from one State to another may in some circumstances amount to regulation of trade in such commodities and it need not always amount toThe matter may be different where total prohibition has been imposed on the movement of goods or articles from one State to another which have not been declared to be essential commodities or articles. In those cases the State, which has imposed such ban, has to satisfy the Court that in spite of total prohibition it amounts only to regulation of the trade in such articles or that even if it was a restriction it was reasonable within the meaning of Article 304(b) of the Constitution and has been imposed bylaw as required by Article 304(b). Sometimes it is being said that many artificial barriers on movement of produce of a particular State are being contemplated or imposed only on the consideration ofThis will only amount to the protection of regional interests for political end and not of public interest. This was not conceived by Chapter XIII of the Constitution. In Charles H. Baldwin v. G.A.F. Seelig, Inc. 294 US 511 :79 L ed 1032 (1934)) While dealing with the commerce clause in the American Constitution, Cardozo.part of the Constitution was framed under the dominion of a political philosophy less parochial in range. It was framed upon the theory that the peoples of the several States must sink or swim together and that in the long run prosperity and salvation are in union and not division."So far the present case is concerned, first the timber was declared as an essential article within the meaning of the Act. Thereafter a notified order was promulgated first restricting the transport and movement of timber outside the State except on the basis of permit to be granted in accordance with Tamil Nadu Timber Transit Rules. Later that part was deleted and complete ban on movement of timber from that State to any other State has been imposed. In thefiled before the High Court, it was stated that there was shortage of timber and the total export of timber outside the State was only 2 per cent to 4 per cent of the total timber. It was also impressed that in order to satisfy the local requirement of timber and to make timber which is an essential article available to the common man at a movement and transport of timber outside the State. The writ petitioners did not challenge the declaration of timber as an essential article. It was not suggested that the declaration of timber as an essential article has been made on extraneous considerations and not in public interest. As such it has to be assumed that for arranging the supply of timber at fair prices and for equitable distribution thereof the prohibition has been imposed. In such a situation there is no escape from the conclusion that prohibition shall be deemed to be regulatory in nature and not restrictive so as to attract Article 301 or 304 or 19(1)(g) of the Constitution | 1 | 4,959 | 1,750 | ### 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:
Articles in Part XIII that a purely textual interpretation may not disclose the true intendment of the Articles." * The framers of the Constitution neither wanted to ensure the freedom of trade and commerce on the pattern of the freedom guaranteed by Section 92 of the Australian Constitution nor they thought it proper that the different States should have unfettered and unrestricted power while imposing prohibitions on inter-State trade. In the larger interest of the nation, there must be free flow of trade, commerce and intercourse both inter-State and intra-State but at the same time the regional problems account be ignored altogether. Whenever there is a clash between the national interest and the interest of the State because of which any crisis is created, the Union has power of intervention. According to us, the expression "free trade" cannot be interpreted in an unqualified manner. Any prohibition on movement of any article from one State to another has to be examined with reference to the facts and circumstances of that particular case-whether it amounts to regulation only, taking into consideration the local conditions prevailing, the necessity for such prohibition and what public interest is sought to be served by imposition thereof. The Privy Council in Hughes and Vale Proprietary Ltd. v. State of New South Wales ( 1955 AC 241 : 1954 (3) ALLER 607(PC) said "Every case must be judged on its own facts and in its own setting of time and circumstance, and it maybe that in regard to some economic activities and at some stage of social development it might be maintained that prohibition with a view to State monopoly was the only practical and reasonable manner of regulation, and that inter-State trade, commerce and intercourse thus prohibited and thus monopolized remained absolutely free." * Whenever such prohibitions are introduced in exercise of the powers, conferred by the Essential Commodities Act or any parallel or similar Act including the Act with which we are concerned in the present case, the scope of enquiry or scrutiny can only be to a limited extent because such Acts exist for maintaining, increasing or securing supplies of essential articles and for arranging equitable distribution and availability thereof at fair prices to the common man under emergent situations. The Essential Commodities Act conceives the larger welfare of the largest numbers and contemplates measures to control the essential commodities or articles which are vital to human existence in the society. With that object in view, framers of the Act vested wide powers of Control over the essential articles in the State Governments. The situations prevailing in any particular State may require complete prohibition on the movement of any essential article or commodity outside the State. That is why in the context of the provision of the Essential Commodities Act, it has been said by this Court that imposition of complete prohibition on the movement of the essential commodities from one State to another may in some circumstances amount to regulation of trade in such commodities and it need not always amount to restriction 18. The matter may be different where total prohibition has been imposed on the movement of goods or articles from one State to another which have not been declared to be essential commodities or articles. In those cases the State, which has imposed such ban, has to satisfy the Court that in spite of total prohibition it amounts only to regulation of the trade in such articles or that even if it was a restriction it was reasonable within the meaning of Article 304(b) of the Constitution and has been imposed bylaw as required by Article 304(b). Sometimes it is being said that many artificial barriers on movement of produce of a particular State are being contemplated or imposed only on the consideration of "My-State-My-people". This will only amount to the protection of regional interests for political end and not of public interest. This was not conceived by Chapter XIII of the Constitution. In Charles H. Baldwin v. G.A.F. Seelig, Inc. 294 US 511 :79 L ed 1032 (1934)) While dealing with the commerce clause in the American Constitution, Cardozo. observed "This part of the Constitution was framed under the dominion of a political philosophy less parochial in range. It was framed upon the theory that the peoples of the several States must sink or swim together and that in the long run prosperity and salvation are in union and not division." * 19. So far the present case is concerned, first the timber was declared as an essential article within the meaning of the Act. Thereafter a notified order was promulgated first restricting the transport and movement of timber outside the State except on the basis of permit to be granted in accordance with Tamil Nadu Timber Transit Rules. Later that part was deleted and complete ban on movement of timber from that State to any other State has been imposed. In the counter-affidavit filed before the High Court, it was stated that there was shortage of timber and the total export of timber outside the State was only 2 per cent to 4 per cent of the total timber. It was also impressed that in order to satisfy the local requirement of timber and to make timber which is an essential article available to the common man at a movement and transport of timber outside the State. The writ petitioners did not challenge the declaration of timber as an essential article. It was not suggested that the declaration of timber as an essential article has been made on extraneous considerations and not in public interest. As such it has to be assumed that for arranging the supply of timber at fair prices and for equitable distribution thereof the prohibition has been imposed. In such a situation there is no escape from the conclusion that prohibition shall be deemed to be regulatory in nature and not restrictive so as to attract Article 301 or 304 or 19(1)(g) of the Constitution
### Response:
1
### Explanation:
moved in the Legislature of a State without the previous sanction of the President.It has been rightly said that"there is such a mixup of exception upon exception in the series of Articles in Part XIII that a purely textual interpretation may not disclose the true intendment of the Articles."framers of the Constitution neither wanted to ensure the freedom of trade and commerce on the pattern of the freedom guaranteed by Section 92 of the Australian Constitution nor they thought it proper that the different States should have unfettered and unrestricted power while imposing prohibitions ontrade. In the larger interest of the nation, there must be free flow of trade, commerce and intercourse bothte but at the same time the regional problems account be ignored altogether. Whenever there is a clash between the national interest and the interest of the State because of which any crisis is created, the Union has power of intervention. According to us, the expression "free trade" cannot be interpreted in an unqualified manner. Any prohibition on movement of any article from one State to another has to be examined with reference to the facts and circumstances of that particularit amounts to regulation only, taking into consideration the local conditions prevailing, the necessity for such prohibition and what public interest is sought to be served by imposition thereof. The Privy Council in Hughes and Vale Proprietary Ltd. v. State of New South Wales ( 1955 AC 241 : 1954 (3) ALLER 607(PC)case must be judged on its own facts and in its own setting of time and circumstance, and it maybe that in regard to some economic activities and at some stage of social development it might be maintained that prohibition with a view to State monopoly was the only practical and reasonable manner of regulation, and thattrade, commerce and intercourse thus prohibited and thus monopolized remained absolutely free."such prohibitions are introduced in exercise of the powers, conferred by the Essential Commodities Act or any parallel or similar Act including the Act with which we are concerned in the present case, the scope of enquiry or scrutiny can only be to a limited extent because such Acts exist for maintaining, increasing or securing supplies of essential articles and for arranging equitable distribution and availability thereof at fair prices to the common man under emergent situations. The Essential Commodities Act conceives the larger welfare of the largest numbers and contemplates measures to control the essential commodities or articles which are vital to human existence in the society. With that object in view, framers of the Act vested wide powers of Control over the essential articles in the State Governments. The situations prevailing in any particular State may require complete prohibition on the movement of any essential article or commodity outside the State. That is why in the context of the provision of the Essential Commodities Act, it has been said by this Court that imposition of complete prohibition on the movement of the essential commodities from one State to another may in some circumstances amount to regulation of trade in such commodities and it need not always amount toThe matter may be different where total prohibition has been imposed on the movement of goods or articles from one State to another which have not been declared to be essential commodities or articles. In those cases the State, which has imposed such ban, has to satisfy the Court that in spite of total prohibition it amounts only to regulation of the trade in such articles or that even if it was a restriction it was reasonable within the meaning of Article 304(b) of the Constitution and has been imposed bylaw as required by Article 304(b). Sometimes it is being said that many artificial barriers on movement of produce of a particular State are being contemplated or imposed only on the consideration ofThis will only amount to the protection of regional interests for political end and not of public interest. This was not conceived by Chapter XIII of the Constitution. In Charles H. Baldwin v. G.A.F. Seelig, Inc. 294 US 511 :79 L ed 1032 (1934)) While dealing with the commerce clause in the American Constitution, Cardozo.part of the Constitution was framed under the dominion of a political philosophy less parochial in range. It was framed upon the theory that the peoples of the several States must sink or swim together and that in the long run prosperity and salvation are in union and not division."So far the present case is concerned, first the timber was declared as an essential article within the meaning of the Act. Thereafter a notified order was promulgated first restricting the transport and movement of timber outside the State except on the basis of permit to be granted in accordance with Tamil Nadu Timber Transit Rules. Later that part was deleted and complete ban on movement of timber from that State to any other State has been imposed. In thefiled before the High Court, it was stated that there was shortage of timber and the total export of timber outside the State was only 2 per cent to 4 per cent of the total timber. It was also impressed that in order to satisfy the local requirement of timber and to make timber which is an essential article available to the common man at a movement and transport of timber outside the State. The writ petitioners did not challenge the declaration of timber as an essential article. It was not suggested that the declaration of timber as an essential article has been made on extraneous considerations and not in public interest. As such it has to be assumed that for arranging the supply of timber at fair prices and for equitable distribution thereof the prohibition has been imposed. In such a situation there is no escape from the conclusion that prohibition shall be deemed to be regulatory in nature and not restrictive so as to attract Article 301 or 304 or 19(1)(g) of the Constitution
|
Orissa Industrial Infra.Dev. Corporation Vs. M/S Mesco Kalinga Steel Ltd. | different quarters, administrative as well as political.xxx xxx xxx32.We have carefully gone through the provisions of the 2009 Act and find that they do not even remotely deal with the issue of allotment of land to the educational institutions. Therefore, the Division Bench of the High Court was not at all justified in ordering transfer of the plot to Respondent 1 and that too by ignoring its own finding that the said respondent was a ranked defaulter and the writ petition was filed after a time gap of 13 years without any tangible explanation."(emphasis added by us)20. Mesco was required to do several acts in this case as per the general terms and conditions subject to which the lease was to be granted. Nothing has been performed including payment of instalments etc. and in such a situation no relief is permissible to be given as held by this Court in Raj Kishore (Dead) by LRs. v. Prem Singh & Ors., 2011(1) R.C.R.(Civil) 383 : (2011) 1 SCC 657 in which this Court has referred to Halsburys Laws of England thus :"33.This Court also quoted with approval the following passage from Halsburys Laws of England, Vol. 14, IIIrd Edn., p. 622, Para 1151:"1151. Conditions must as a general rule be strictly observed.-Where under a contract, conveyance, or will a beneficial right is to arise upon the performance by the beneficiary of some act in a stated manner, or at a stated time, the act must be performed accordingly in order to obtain the enjoyment of the right, and in the absence of fraud, accident or surprise, equity will not relieve against a breach of the terms.""It is apparent that when several acts are to be done in a stated manner and in stipulated time and none of them has been performed, as in the instant case, such gross breach became irremediable and no equitable principle could have come to the rescue of Mesco as it has utterly failed to fulfil its obligations.21. It was submitted on behalf of Mesco that IDCO is bound by promissory estoppel. We find the submission to be wholly unworthy of acceptance. It is not the case of Mesco that there was any assurance given to it on the basis of which it has acted upon. The State Government had withdrawn its initial offer of equity participation of Rs. 25 crores well before the order of allotment was issued. It was made clear in the order that the State Government had directed IDCO to allot 2500 acres of land subject to execution of lease deed. In such a situation there is no room to entertain the plea of promissory estoppel and it is not the case that any of the authorized persons had at any point of time, without execution of lease deed, asked Mesco to do anything. Any such assurance even if it had been given, would be of no consequence as held by this Court in Mumbai International Airport Private Ltd. v. Golden Chariot Airport & Anr., 2011(1) R.C.R.(Rent) 472 : (2010) 10 SCC 422. Therein a question arose that the Airports Authority of India being a statutory body constituted under section 3 of the Airports Authority of India Act, 1944 was required to execute the contract in a particular form as provided under the Act and the Regulations. As such it was held that even if oral assurance of execution of licence is proved, such assurance cannot bind the statutory body. In the facts of the instant case, the principle of promissory estoppel is not attracted at all. IDCO is a statutory body and can act only in the mode prescribed and Mesco was informed of the lease deed to be executed in prescribed format. Thus the High Court could not have issued the impugned direction.22. In the writ petition, a prayer had been made for grant of relief of a declaration that Mesco has acquired full title to hold the property in question for a period of 99 years from the date of possession and IDCO has lost its title to the said land and has the remedy to recover the balance amount by filing a suit. The prayer was wholly misconceived. In the instant case, on the basis of MOU or allotment letter, no right has accrued to Mesco, and it having failed to perform its mandatory part, the MOU/offer became void and unenforceable. IDCO was fully justified in resuming the land.23. The High Court has totally misdirected itself in directing to lease out the balance land. The High Court has also ignored that certain intervening events have taken place and there was total failure on the part of Mesco to carry out its obligations. The High Court could not have issued the direction more so in the changed situation and in view of the defaults committed by Mesco. As a matter of fact, Mesco was never inclined to abide by the terms of the letter dated 4.7.2003. When resumption was made on 25.7.2003, a representation was submitted on 20.8.2003 by Mesco. In that, an attempt was made to dictate its own terms in the garb of prayer for payment. As a matter of fact, it is apparent from the conduct of Mesco that it had no justification at any point of time not to execute the lease deed. It was delaying the same for the reasons best known to it which was wholly impermissible conduct, particularly after taking possession. The breach was not remedied for several years much less for three months in which it was to be remedied. Thus, High Court misadventured into holding the action of IDCO of resumption of land to be illegal. There was no equitable or legal consideration in favour of the respondent herein and a writ is not issued to perpetuate an illegality. Not only the conduct of Mesco was unfair, third party rights had also intervened. Lawful method had been exercised for resumption of land and cancellation of letter of handing over the possession. | 1[ds]14. In the instant case it is apparent that possession had been enjoyed by Mesco without execution of the lease deed. The conduct of IDCO was also not diligent. Notice was served in the year 1997 for resumption but thereafter up to July, 2003 nothing was done by either IDCO or Mesco. Not even a single communication has been placed on record by Mesco containing its proposal to remedy breach and on a specific query being made to the learned counsel appearing for Mesco, they were unable to explain as to what transpired between 1997 and 2003 except a vague submission was made that it was mired in certain litigations which fact has not been even pleaded. Thus, no explanation, good, bad or otherwise has been placed on record for inaction on the part of Mesco. The transaction became void, due to Mescos own lapse and negligence, and it has forfeited the right to get the lease deed executed. After taking possession, it could not have waited for so many years. What was required to be performed by Mesco was not done. It also failed to make any development of worth on the land. We find no force in the submission that they have spent a sum of Rs. 22 crores as they were unable to explain how they spent the said amount, and only a bald statement was made that they have constructed a boundary wall. It has not been established that a sum of Rs. 22 crores had been spent by Mesco. Apart from that, having failed to execute the lease deed, they were to invest at their own peril. In case they have invested some amount, on that basis they cannot claim any legal or equitable right.15. IDCO is a statutory authority and it can act only on the basis of written lease deed. The execution of lease deed is necessary and it is in public interest to prevent unauthorized leasing out of property on its behalf. Lease is required to be executed in a prescribed format in the shape of formal document which is sine qua non. In the absence thereof, it would not be permissible to hold that relationship of lessor and lessee came into being. A situation arose under section 175(3) of the Government of India Act, 1935 a formal document was required to be executed which provision was pari materia to Article 299 of the Constitution, this Court held in Bhikraj Jaipuria v. Union of India AIR 1962 SC 113 that for a contract between Government and private individuals, formal document is necessary and where it is required that a thing shall be done in the prescribed manner or form but does not set out the consequences of non- compliance, the question whether the provision was mandatory or directory has to be judged in the light of the intention of the legislature as disclosed by the object. If the provisions of statute are mandatory, the thing done not in the manner or form prescribed can have no effect or validity. This Court also observed that it is in the interest of the public that the question whether a binding contract has been made between the State and a private individual should not be left to dispute and litigation.It is apparent that there is a manner of executing the lease deed with the Corporation. Prescribed form of draft lease deed had been sent by IDCO to Mesco but it failed to execute it. Thus, there was no contract which could have been enforced and it became void due to inaction of Mesco itself.16. Forfeiture of amount of Rs. 1.25 crores was also appropriate. In State of West Bengal v. M/s. B.K. Mondal and Sons AIR 1962 SC 779 , this Court held that the provision of section 175(3) is mandatory and non-compliance makes the contract invalid and section 70 of the Contract Act prevents unjust enrichment. It applies as much to individuals as to corporations and Government. Section 70 of the Contract Act deals with the cases where a person does a thing not intending to act gratuitously and others enjoyed it. In such a situation compensation can be claimed under section 70 and this Court has held that section 175(3) of the Government of India Act is not in conflict with the principles enunciated under section 70 of the Contract Act. Thus, we find no force in the submission on the part of Mesco with respect to the forfeiture of amount of Rs. 1.25 crores. In addition, they would be liable to pay as compensation for retaining possession so long. In New Marine Coal Co. (Bengal) Private Ltd. v. The Union of India AIR 1964 SC 152 also, this Court has held that when a contract is found to be void due to the provisions of section 175(3) of the Government of India Act it becomes unenforceable but in case a party had performed its obligation, section 70 is attracted in order to recover compensation.There is no question of estoppel or ratification in such cases. In Mulamchand v. State of Madhya Pradesh AIR 1968 SC 1218 , this Court observed thusThe principle is that the provisions of Section 175(3) of the Government of India Act, 1935 or the corresponding provisions of Article 299(1) of the Constitution of India are mandatory in character and the contravention of these provisions nullifies the contracts and makes them void. There is no question of estoppel or ratification in such a case. The reason is that the provisions of Section 175(3) of the Government of India Act and the corresponding provisions of Article 299(1) of the Constitution have not been enacted for the sake of mere form but they have been enacted for safeguarding the Government against unauthorised contracts. The provisions are embodied in Section 175(3) of the Government of India Act and Article 299(1) of the Constitution on the ground of public policy - on the ground of protection of general public -and these formalities cannot be waived or dispensed with. If the plea of the respondent regarding estoppel or ratification is admitted, that would mean in effect the repeal of an important constitutional provision intended for the protection of the general public. That is why the plea of estoppel or ratification cannot be permitted in such a case. But if money is deposited and goods are supplied or if services are rendered in terms of the void contract, the provisions of Section 70 of the Indian Contract Act may be applicable. In other words if the conditions imposed by Section 70 of the Indian Contract Act are satisfied then the provisions of that section can be invoked by the aggrieved party to the void contract. The first condition is that a person should lawfully do something for another person or deliver something to him; the second condition is that in doing the said thing or delivering the said thing he must not intend to act gratuitously; and the third condition is that the other person for whom something is done or to whom something is delivered must enjoy the benefit thereof. If these conditions are satisfied, Section 70 imposes upon the latter person the liability to make compensation to the former in respect of, or to restore, the thing so done or delivered. The important point to notice is that in a case falling under Section 70 the person doing something for another or delivering something to another cannot sue for the specific performance of the contract, nor ask for damages for the breach of the contract, for the simple reason that there is no contract between him and the other person for whom he does something or to whom he delivers something. So where a claim for compensation is made by one person against another under Section 70 it is not on the basis of any subsisting contract between the parties but on a different kind of obligation. The juristic basis of the obligation in such a case is not founded upon any contract or tort but upon a third category of law, namely, quasi-contract or restitution. In Bibrosa v. Fairbairn, 1943 AC 32 Lord Wright has stated the legal position as follows:"... any civilised system of law is bound to provide remedies for cases of what has been called unjust enrichment or unjust benefit, that is, to prevent a man from retaining the money of, or some benefit derived from, another which it is against conscience that he should keep. Such remedies in English Law are generically different from remedies in contract or in tort, and are now recognised to fall within a third category of the common law which has been called quasi-contract or restitution".In the light of aforesaid decision, when we consider the overall conduct of Mesco in the instant case, we are fully satisfied that the High Court has adventured into an avoidable illegality while directing execution of lease deed. It is a settled law that equity follows the rule of common law in respect of such contracts. Renewal of lease is a privilege and if a tenant wishes to claim the privilege, he must do so strictly within the time limited for the purpose. This Court has further considered the question where there is no time limit, an application may be made within a reasonable time. If delay is on the part of lessee for renewal arising out of mere neglect on his part and which could have been avoided by reasonable diligence, would not entitle him to claim renewal. Applying the same principle to the instant case, it is apparent that the conduct of Mesco was unfair and unpardonable. The conduct disentitled it from indulgence by Court in any manner. We are constrained to observe that a number of times the High Court had unnecessarily directed the matter to be reconsidered and on each and every occasion there was rejection of the representation by the concerned authorities. Thus, no equitable consideration was available with Mesco to invoke the writ jurisdiction for the reliefs sought. Relief granted is not permissible as per law.It was submitted on behalf of Mesco that IDCO is bound by promissory estoppel. We find the submission to be wholly unworthy of acceptance. It is not the case of Mesco that there was any assurance given to it on the basis of which it has acted upon. The State Government had withdrawn its initial offer of equity participation of Rs. 25 crores well before the order of allotment was issued. It was made clear in the order that the State Government had directed IDCO to allot 2500 acres of land subject to execution of lease deed. In such a situation there is no room to entertain the plea of promissory estoppel and it is not the case that any of the authorized persons had at any point of time, without execution of lease deed, asked Mesco to do anything. Any such assurance even if it had been given, would be of no consequence as held by this Court in Mumbai International Airport Private Ltd. v. Golden Chariot Airport & Anr., 2011(1) R.C.R.(Rent) 472 : (2010) 10 SCC 422. Therein a question arose that the Airports Authority of India being a statutory body constituted under section 3 of the Airports Authority of India Act, 1944 was required to execute the contract in a particular form as provided under the Act and the Regulations. As such it was held that even if oral assurance of execution of licence is proved, such assurance cannot bind the statutory body. In the facts of the instant case, the principle of promissory estoppel is not attracted at all. IDCO is a statutory body and can act only in the mode prescribed and Mesco was informed of the lease deed to be executed in prescribed format. Thus the High Court could not have issued the impugned direction.22. In the writ petition, a prayer had been made for grant of relief of a declaration that Mesco has acquired full title to hold the property in question for a period of 99 years from the date of possession and IDCO has lost its title to the said land and has the remedy to recover the balance amount by filing a suit. The prayer was wholly misconceived. In the instant case, on the basis of MOU or allotment letter, no right has accrued to Mesco, and it having failed to perform its mandatory part, the MOU/offer became void and unenforceable. IDCO was fully justified in resuming the land.23. The High Court has totally misdirected itself in directing to lease out the balance land. The High Court has also ignored that certain intervening events have taken place and there was total failure on the part of Mesco to carry out its obligations. The High Court could not have issued the direction more so in the changed situation and in view of the defaults committed by Mesco. As a matter of fact, Mesco was never inclined to abide by the terms of the letter dated 4.7.2003. When resumption was made on 25.7.2003, a representation was submitted on 20.8.2003 by Mesco. In that, an attempt was made to dictate its own terms in the garb of prayer for payment. As a matter of fact, it is apparent from the conduct of Mesco that it had no justification at any point of time not to execute the lease deed. It was delaying the same for the reasons best known to it which was wholly impermissible conduct, particularly after taking possession. The breach was not remedied for several years much less for three months in which it was to be remedied. Thus, High Court misadventured into holding the action of IDCO of resumption of land to be illegal. There was no equitable or legal consideration in favour of the respondent herein and a writ is not issued to perpetuate an illegality. Not only the conduct of Mesco was unfair, third party rights had also intervened. Lawful method had been exercised for resumption of land and cancellation of letter of handing over the possession. | 1 | 6,658 | 2,563 | ### Instruction:
Speculate on the likely judgment (yes (1) or no (0) to the appeal) and then delve into the case proceeding to elucidate your prediction, focusing on critical sentences.
### Input:
different quarters, administrative as well as political.xxx xxx xxx32.We have carefully gone through the provisions of the 2009 Act and find that they do not even remotely deal with the issue of allotment of land to the educational institutions. Therefore, the Division Bench of the High Court was not at all justified in ordering transfer of the plot to Respondent 1 and that too by ignoring its own finding that the said respondent was a ranked defaulter and the writ petition was filed after a time gap of 13 years without any tangible explanation."(emphasis added by us)20. Mesco was required to do several acts in this case as per the general terms and conditions subject to which the lease was to be granted. Nothing has been performed including payment of instalments etc. and in such a situation no relief is permissible to be given as held by this Court in Raj Kishore (Dead) by LRs. v. Prem Singh & Ors., 2011(1) R.C.R.(Civil) 383 : (2011) 1 SCC 657 in which this Court has referred to Halsburys Laws of England thus :"33.This Court also quoted with approval the following passage from Halsburys Laws of England, Vol. 14, IIIrd Edn., p. 622, Para 1151:"1151. Conditions must as a general rule be strictly observed.-Where under a contract, conveyance, or will a beneficial right is to arise upon the performance by the beneficiary of some act in a stated manner, or at a stated time, the act must be performed accordingly in order to obtain the enjoyment of the right, and in the absence of fraud, accident or surprise, equity will not relieve against a breach of the terms.""It is apparent that when several acts are to be done in a stated manner and in stipulated time and none of them has been performed, as in the instant case, such gross breach became irremediable and no equitable principle could have come to the rescue of Mesco as it has utterly failed to fulfil its obligations.21. It was submitted on behalf of Mesco that IDCO is bound by promissory estoppel. We find the submission to be wholly unworthy of acceptance. It is not the case of Mesco that there was any assurance given to it on the basis of which it has acted upon. The State Government had withdrawn its initial offer of equity participation of Rs. 25 crores well before the order of allotment was issued. It was made clear in the order that the State Government had directed IDCO to allot 2500 acres of land subject to execution of lease deed. In such a situation there is no room to entertain the plea of promissory estoppel and it is not the case that any of the authorized persons had at any point of time, without execution of lease deed, asked Mesco to do anything. Any such assurance even if it had been given, would be of no consequence as held by this Court in Mumbai International Airport Private Ltd. v. Golden Chariot Airport & Anr., 2011(1) R.C.R.(Rent) 472 : (2010) 10 SCC 422. Therein a question arose that the Airports Authority of India being a statutory body constituted under section 3 of the Airports Authority of India Act, 1944 was required to execute the contract in a particular form as provided under the Act and the Regulations. As such it was held that even if oral assurance of execution of licence is proved, such assurance cannot bind the statutory body. In the facts of the instant case, the principle of promissory estoppel is not attracted at all. IDCO is a statutory body and can act only in the mode prescribed and Mesco was informed of the lease deed to be executed in prescribed format. Thus the High Court could not have issued the impugned direction.22. In the writ petition, a prayer had been made for grant of relief of a declaration that Mesco has acquired full title to hold the property in question for a period of 99 years from the date of possession and IDCO has lost its title to the said land and has the remedy to recover the balance amount by filing a suit. The prayer was wholly misconceived. In the instant case, on the basis of MOU or allotment letter, no right has accrued to Mesco, and it having failed to perform its mandatory part, the MOU/offer became void and unenforceable. IDCO was fully justified in resuming the land.23. The High Court has totally misdirected itself in directing to lease out the balance land. The High Court has also ignored that certain intervening events have taken place and there was total failure on the part of Mesco to carry out its obligations. The High Court could not have issued the direction more so in the changed situation and in view of the defaults committed by Mesco. As a matter of fact, Mesco was never inclined to abide by the terms of the letter dated 4.7.2003. When resumption was made on 25.7.2003, a representation was submitted on 20.8.2003 by Mesco. In that, an attempt was made to dictate its own terms in the garb of prayer for payment. As a matter of fact, it is apparent from the conduct of Mesco that it had no justification at any point of time not to execute the lease deed. It was delaying the same for the reasons best known to it which was wholly impermissible conduct, particularly after taking possession. The breach was not remedied for several years much less for three months in which it was to be remedied. Thus, High Court misadventured into holding the action of IDCO of resumption of land to be illegal. There was no equitable or legal consideration in favour of the respondent herein and a writ is not issued to perpetuate an illegality. Not only the conduct of Mesco was unfair, third party rights had also intervened. Lawful method had been exercised for resumption of land and cancellation of letter of handing over the possession.
### Response:
1
### Explanation:
Bibrosa v. Fairbairn, 1943 AC 32 Lord Wright has stated the legal position as follows:"... any civilised system of law is bound to provide remedies for cases of what has been called unjust enrichment or unjust benefit, that is, to prevent a man from retaining the money of, or some benefit derived from, another which it is against conscience that he should keep. Such remedies in English Law are generically different from remedies in contract or in tort, and are now recognised to fall within a third category of the common law which has been called quasi-contract or restitution".In the light of aforesaid decision, when we consider the overall conduct of Mesco in the instant case, we are fully satisfied that the High Court has adventured into an avoidable illegality while directing execution of lease deed. It is a settled law that equity follows the rule of common law in respect of such contracts. Renewal of lease is a privilege and if a tenant wishes to claim the privilege, he must do so strictly within the time limited for the purpose. This Court has further considered the question where there is no time limit, an application may be made within a reasonable time. If delay is on the part of lessee for renewal arising out of mere neglect on his part and which could have been avoided by reasonable diligence, would not entitle him to claim renewal. Applying the same principle to the instant case, it is apparent that the conduct of Mesco was unfair and unpardonable. The conduct disentitled it from indulgence by Court in any manner. We are constrained to observe that a number of times the High Court had unnecessarily directed the matter to be reconsidered and on each and every occasion there was rejection of the representation by the concerned authorities. Thus, no equitable consideration was available with Mesco to invoke the writ jurisdiction for the reliefs sought. Relief granted is not permissible as per law.It was submitted on behalf of Mesco that IDCO is bound by promissory estoppel. We find the submission to be wholly unworthy of acceptance. It is not the case of Mesco that there was any assurance given to it on the basis of which it has acted upon. The State Government had withdrawn its initial offer of equity participation of Rs. 25 crores well before the order of allotment was issued. It was made clear in the order that the State Government had directed IDCO to allot 2500 acres of land subject to execution of lease deed. In such a situation there is no room to entertain the plea of promissory estoppel and it is not the case that any of the authorized persons had at any point of time, without execution of lease deed, asked Mesco to do anything. Any such assurance even if it had been given, would be of no consequence as held by this Court in Mumbai International Airport Private Ltd. v. Golden Chariot Airport & Anr., 2011(1) R.C.R.(Rent) 472 : (2010) 10 SCC 422. Therein a question arose that the Airports Authority of India being a statutory body constituted under section 3 of the Airports Authority of India Act, 1944 was required to execute the contract in a particular form as provided under the Act and the Regulations. As such it was held that even if oral assurance of execution of licence is proved, such assurance cannot bind the statutory body. In the facts of the instant case, the principle of promissory estoppel is not attracted at all. IDCO is a statutory body and can act only in the mode prescribed and Mesco was informed of the lease deed to be executed in prescribed format. Thus the High Court could not have issued the impugned direction.22. In the writ petition, a prayer had been made for grant of relief of a declaration that Mesco has acquired full title to hold the property in question for a period of 99 years from the date of possession and IDCO has lost its title to the said land and has the remedy to recover the balance amount by filing a suit. The prayer was wholly misconceived. In the instant case, on the basis of MOU or allotment letter, no right has accrued to Mesco, and it having failed to perform its mandatory part, the MOU/offer became void and unenforceable. IDCO was fully justified in resuming the land.23. The High Court has totally misdirected itself in directing to lease out the balance land. The High Court has also ignored that certain intervening events have taken place and there was total failure on the part of Mesco to carry out its obligations. The High Court could not have issued the direction more so in the changed situation and in view of the defaults committed by Mesco. As a matter of fact, Mesco was never inclined to abide by the terms of the letter dated 4.7.2003. When resumption was made on 25.7.2003, a representation was submitted on 20.8.2003 by Mesco. In that, an attempt was made to dictate its own terms in the garb of prayer for payment. As a matter of fact, it is apparent from the conduct of Mesco that it had no justification at any point of time not to execute the lease deed. It was delaying the same for the reasons best known to it which was wholly impermissible conduct, particularly after taking possession. The breach was not remedied for several years much less for three months in which it was to be remedied. Thus, High Court misadventured into holding the action of IDCO of resumption of land to be illegal. There was no equitable or legal consideration in favour of the respondent herein and a writ is not issued to perpetuate an illegality. Not only the conduct of Mesco was unfair, third party rights had also intervened. Lawful method had been exercised for resumption of land and cancellation of letter of handing over the possession.
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Bhargavi Constructions Vs. Kothakapu Muthyam Reddy | 32) The question as to whether the expression "law" occurring in clause(d) of Rule 11 of Order 7 of the Code includes "judicial decisions of the Apex Court" came up for consideration before the Division Bench of the Allahabad High Court in Virender Kumar Dixit vs. State of U.P., 2014(9) ADJ 1506. The Division Bench dealt with the issue in detail in the context of several decisions on the subject and held in para 15 as under:?15. Law includes not only legislative enactments but also judicial precedents. An authoritative judgment of the Courts including higher judiciary is also law.?33) This very issue was again considered by the Gujarat High Court (Single Bench) in the case of Hermes Marines Limited vs. Capeshore Maritime Partners F.Z.C. & Anr. (unreported decision in Civil Application (OJ) No.144 of 2016 in Admiralty Suit No.10 of 2016 decided on 22.04.2016). The learned Single Judge examined the issue and relying upon the decision of the Allahabad High Court quoted supra held in Para 53 as under:?53. In the light of the above discussion, in the considered view of this Court, it cannot be said that the term ?barred by any law? occurring in clause(d) of Rule 11 of Order 7 of the Code, ought to be read to mean only the law codified in a legislative enactment and not the law laid down by the Courts in judicial precedents. The judicial precedent of the Supreme Court in Liverpool & London Steamship Protection and Indemnity Association vs. M.V. Sea Success, 2004(9) SCC 512 has been followed by the decision of the Division Bench in Croft Sales & Distribution Ltd. vs. M.V. Basil, 2011(2) GLR 1027. It is, therefore, the law as of today, which is that the Geneva Convention of 1999 cannot be made applicable to a contract that does not involve public law character. Such a contract would not give rise to a maritime claim. As discussed earlier, the word ‘law? as occurring in Order 7 Rule 11(d) would also mean judicial precedent. If the judicial precedent bars any action that would be the law.?34) Similarly, this very issue was again examined by the Bombay High Court (Single Judge) in Shahid s. Sarkar & Ors. Vs. Usha Ramrao Bhojane, 2017 SCC OnLine Bom 3440. The learned Judge placed reliance on the decisions of the Allahabad High Court in Virender Kumar Dixit vs. State of U.P. (Supra) and the Gujarat High Court in Hermes Marines Limited (supra) and held as under:?18…………….The law laid down by the highest court of a State as well as the Supreme Court, is the law. In fact, Article 141 of the Constitution of India categorically states that the law declared by the Supreme Court shall be binding on all Courts within the territories of India. There is nothing even in the C.P.C. to restrict the meaning of the words ?barred by any law? to mean only codified law or statute law as sought to be contended by Mr. Patil. In the view that I have taken, I am supported by a decision of the Gujarat High Court in the case of Hermes Marines Ltd..………..........................? ?19. One must also not lose sight of the purpose and intention behind Order VII Rule 11(d). The intention appears to be that when the suit appears from the statement in the plaint to be barred by any law, the Courts will not unnecessarily protract the litigation and proceed with the hearing of the suit. The purpose clearly appears to be to ensure that where a Defendant is able to establish that the Plaint ought to be rejected on any of the grounds set out in the said Rule, the Court would be duty bound to do so, so as to save expenses, achieve expedition and avoid the court?s resources being used up on cases which will serve no useful purpose. A litigation, which in the opinion of the court, is doomed to fail would not further be allowed to be used as a device to harass a Defendant…………………..?35) Similarly, issue was again examined by the High Court of Jharkhand(Single Judge) in Mira Sinha & Ors. Vs. State of Jharkhand & Ors., 2015 SCC OnLine Jhar.4377. The learned Judge, in paragraph 7 held as under:?7. In the background of the law laid down by the Hon?ble Supreme Court, it is apparent that Order VII Rule 11(d) C.P.C. application is maintainable only when the suit is barred by any law. The expression ?law? included in Rule 11(d) includes Law of Limitation and, it would also include the law declared by the Hon?ble Supreme Court………?36) We are in agreement with the view taken by Allahabad, Gujarat, Bombay and Jharkhand High Courts in the aforementioned four decisions which, in our opinion, is the proper interpretation of the expression "law" occurring in clause (d) of Rule 11 of Order 7 of the Code. This answers the first submission of the learned counsel for the respondents against the respondents. 37) So far as the second submission of learned counsel for the respondents is concerned, it also has no merit. In our view, the decision rendered in the case of State of Punjab (supra) is by the larger Bench (Three Judge) and is, therefore, binding on us. No efforts were made and rightly to contend that the said decision needs reconsideration on the issue in question. That apart, when this Court has laid down a particular remedy to follow for challenging the award of Lok Adalat then in our view, the same is required to be followed by the litigant in letter and spirit as provided therein for adjudication of his grievance in the first instance. The reason being that it is a law of the land under Article 141 of the Constitution of India (see - M. Nagaraj & Ors. Vs. U.O.I. & Ors. 2006 ( 8 ) SCC 212). It is then for the writ court to decide as to what orders need to be passed on the facts arising in the case. | 1[ds]24) Having heard the learned counsel for the parties and on perusal of the record of the case, we find force in the submissions of the learned counsel for theIn our considered view, the aforesaid law laid down by this Court is binding on all the Courts in the country by virtue of mandate of Article 141 of the Constitution. This Court, in no uncertain terms, has laid down that challenge to the award of Lok Adalat can be done only by filing a writ petition under Article 226 and/or Article 227 of the Constitution of India in the High Court and that too on very limitedIn the light of clear pronouncement of the law by this Court, we are of the opinion that the only remedy available to the aggrieved person(respondents herein/plaintiffs) was to file a writ petition under Article 226 and/or 227 of the Constitution of India in the High Court for challenging the award dated 22.08.2007 passed by the Lok Adalat. It was then for the writ Court to decide as to whether any ground was made out by the writ petitioners for quashing the award and, if so, whether those grounds are sufficient for itsThe High Court was, therefore, not right in by passing the law laid down by this Court on the ground that the suit can be filed to challenge the award, if the challenge is founded on the allegations of fraud. In our opinion, it was not correct approach of the High Court to deal with the issue in question to which we do notWe also do not agree with the submissions of Mr. Adinarayana Rao, learned senior counsel for the respondents when he urged that firstly, the expression "law" occurring in clause(d) of Rule 11 Order 7 does not include the "judicial decisions" and clause (d) applies only to bar which is contained in ?the Act? enacted by the Legislature; and Secondly, even if it is held to include the ?judicial decisions?, yet the law laid down in the case of State of Punjab (supra) cannot be read to hold that the suit is barred. Both these submissions, in our view, have noWe are in agreement with the view taken by Allahabad, Gujarat, Bombay and Jharkhand High Courts in the aforementioned four decisions which, in our opinion, is the proper interpretation of the expression "law" occurring in clause (d) of Rule 11 of Order 7 of the Code. This answers the first submission of the learned counsel for the respondents against theSo far as the second submission of learned counsel for the respondents is concerned, it also has no merit. In our view, the decision rendered in the case of State of Punjab (supra) is by the larger Bench (Three Judge) and is, therefore, binding on us. No efforts were made and rightly to contend that the said decision needs reconsideration on the issue in question. That apart, when this Court has laid down a particular remedy to follow for challenging the award of Lok Adalat then in our view, the same is required to be followed by the litigant in letter and spirit as provided therein for adjudication of his grievance in the first instance. The reason being that it is a law of the land under Article 141 of the Constitution of India (seeM. Nagaraj & Ors. Vs. U.O.I. & Ors. 2006 ( 8 ) SCC 212). It is then for the writ court to decide as to what orders need to be passed on the facts arising in the case. | 1 | 3,761 | 668 | ### Instruction:
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32) The question as to whether the expression "law" occurring in clause(d) of Rule 11 of Order 7 of the Code includes "judicial decisions of the Apex Court" came up for consideration before the Division Bench of the Allahabad High Court in Virender Kumar Dixit vs. State of U.P., 2014(9) ADJ 1506. The Division Bench dealt with the issue in detail in the context of several decisions on the subject and held in para 15 as under:?15. Law includes not only legislative enactments but also judicial precedents. An authoritative judgment of the Courts including higher judiciary is also law.?33) This very issue was again considered by the Gujarat High Court (Single Bench) in the case of Hermes Marines Limited vs. Capeshore Maritime Partners F.Z.C. & Anr. (unreported decision in Civil Application (OJ) No.144 of 2016 in Admiralty Suit No.10 of 2016 decided on 22.04.2016). The learned Single Judge examined the issue and relying upon the decision of the Allahabad High Court quoted supra held in Para 53 as under:?53. In the light of the above discussion, in the considered view of this Court, it cannot be said that the term ?barred by any law? occurring in clause(d) of Rule 11 of Order 7 of the Code, ought to be read to mean only the law codified in a legislative enactment and not the law laid down by the Courts in judicial precedents. The judicial precedent of the Supreme Court in Liverpool & London Steamship Protection and Indemnity Association vs. M.V. Sea Success, 2004(9) SCC 512 has been followed by the decision of the Division Bench in Croft Sales & Distribution Ltd. vs. M.V. Basil, 2011(2) GLR 1027. It is, therefore, the law as of today, which is that the Geneva Convention of 1999 cannot be made applicable to a contract that does not involve public law character. Such a contract would not give rise to a maritime claim. As discussed earlier, the word ‘law? as occurring in Order 7 Rule 11(d) would also mean judicial precedent. If the judicial precedent bars any action that would be the law.?34) Similarly, this very issue was again examined by the Bombay High Court (Single Judge) in Shahid s. Sarkar & Ors. Vs. Usha Ramrao Bhojane, 2017 SCC OnLine Bom 3440. The learned Judge placed reliance on the decisions of the Allahabad High Court in Virender Kumar Dixit vs. State of U.P. (Supra) and the Gujarat High Court in Hermes Marines Limited (supra) and held as under:?18…………….The law laid down by the highest court of a State as well as the Supreme Court, is the law. In fact, Article 141 of the Constitution of India categorically states that the law declared by the Supreme Court shall be binding on all Courts within the territories of India. There is nothing even in the C.P.C. to restrict the meaning of the words ?barred by any law? to mean only codified law or statute law as sought to be contended by Mr. Patil. In the view that I have taken, I am supported by a decision of the Gujarat High Court in the case of Hermes Marines Ltd..………..........................? ?19. One must also not lose sight of the purpose and intention behind Order VII Rule 11(d). The intention appears to be that when the suit appears from the statement in the plaint to be barred by any law, the Courts will not unnecessarily protract the litigation and proceed with the hearing of the suit. The purpose clearly appears to be to ensure that where a Defendant is able to establish that the Plaint ought to be rejected on any of the grounds set out in the said Rule, the Court would be duty bound to do so, so as to save expenses, achieve expedition and avoid the court?s resources being used up on cases which will serve no useful purpose. A litigation, which in the opinion of the court, is doomed to fail would not further be allowed to be used as a device to harass a Defendant…………………..?35) Similarly, issue was again examined by the High Court of Jharkhand(Single Judge) in Mira Sinha & Ors. Vs. State of Jharkhand & Ors., 2015 SCC OnLine Jhar.4377. The learned Judge, in paragraph 7 held as under:?7. In the background of the law laid down by the Hon?ble Supreme Court, it is apparent that Order VII Rule 11(d) C.P.C. application is maintainable only when the suit is barred by any law. The expression ?law? included in Rule 11(d) includes Law of Limitation and, it would also include the law declared by the Hon?ble Supreme Court………?36) We are in agreement with the view taken by Allahabad, Gujarat, Bombay and Jharkhand High Courts in the aforementioned four decisions which, in our opinion, is the proper interpretation of the expression "law" occurring in clause (d) of Rule 11 of Order 7 of the Code. This answers the first submission of the learned counsel for the respondents against the respondents. 37) So far as the second submission of learned counsel for the respondents is concerned, it also has no merit. In our view, the decision rendered in the case of State of Punjab (supra) is by the larger Bench (Three Judge) and is, therefore, binding on us. No efforts were made and rightly to contend that the said decision needs reconsideration on the issue in question. That apart, when this Court has laid down a particular remedy to follow for challenging the award of Lok Adalat then in our view, the same is required to be followed by the litigant in letter and spirit as provided therein for adjudication of his grievance in the first instance. The reason being that it is a law of the land under Article 141 of the Constitution of India (see - M. Nagaraj & Ors. Vs. U.O.I. & Ors. 2006 ( 8 ) SCC 212). It is then for the writ court to decide as to what orders need to be passed on the facts arising in the case.
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24) Having heard the learned counsel for the parties and on perusal of the record of the case, we find force in the submissions of the learned counsel for theIn our considered view, the aforesaid law laid down by this Court is binding on all the Courts in the country by virtue of mandate of Article 141 of the Constitution. This Court, in no uncertain terms, has laid down that challenge to the award of Lok Adalat can be done only by filing a writ petition under Article 226 and/or Article 227 of the Constitution of India in the High Court and that too on very limitedIn the light of clear pronouncement of the law by this Court, we are of the opinion that the only remedy available to the aggrieved person(respondents herein/plaintiffs) was to file a writ petition under Article 226 and/or 227 of the Constitution of India in the High Court for challenging the award dated 22.08.2007 passed by the Lok Adalat. It was then for the writ Court to decide as to whether any ground was made out by the writ petitioners for quashing the award and, if so, whether those grounds are sufficient for itsThe High Court was, therefore, not right in by passing the law laid down by this Court on the ground that the suit can be filed to challenge the award, if the challenge is founded on the allegations of fraud. In our opinion, it was not correct approach of the High Court to deal with the issue in question to which we do notWe also do not agree with the submissions of Mr. Adinarayana Rao, learned senior counsel for the respondents when he urged that firstly, the expression "law" occurring in clause(d) of Rule 11 Order 7 does not include the "judicial decisions" and clause (d) applies only to bar which is contained in ?the Act? enacted by the Legislature; and Secondly, even if it is held to include the ?judicial decisions?, yet the law laid down in the case of State of Punjab (supra) cannot be read to hold that the suit is barred. Both these submissions, in our view, have noWe are in agreement with the view taken by Allahabad, Gujarat, Bombay and Jharkhand High Courts in the aforementioned four decisions which, in our opinion, is the proper interpretation of the expression "law" occurring in clause (d) of Rule 11 of Order 7 of the Code. This answers the first submission of the learned counsel for the respondents against theSo far as the second submission of learned counsel for the respondents is concerned, it also has no merit. In our view, the decision rendered in the case of State of Punjab (supra) is by the larger Bench (Three Judge) and is, therefore, binding on us. No efforts were made and rightly to contend that the said decision needs reconsideration on the issue in question. That apart, when this Court has laid down a particular remedy to follow for challenging the award of Lok Adalat then in our view, the same is required to be followed by the litigant in letter and spirit as provided therein for adjudication of his grievance in the first instance. The reason being that it is a law of the land under Article 141 of the Constitution of India (seeM. Nagaraj & Ors. Vs. U.O.I. & Ors. 2006 ( 8 ) SCC 212). It is then for the writ court to decide as to what orders need to be passed on the facts arising in the case.
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Union Of India Vs. Birla Cotton Spinning & Weaving Mills Ltd | urged that mere refusal by the Union to pay the amount due is sufficient to raise a dispute "in connection with the contract" within the meaning of Cl. 21 of the Arbitration agreement. We are unable to agree with that contention. A dispute that the Union is not liable to pay the price under the terms of the contract is undoubtedly a dispute under the contract, and in any event in connection with the contract. But a plea that the Union though liable to pay the amount under the terms of the contract will not pay it because it desires to appropriate it towards another claim under another independent contract cannot reasonably be regarded as a dispute "under or in connection" with that contract under which the liability sought to be enforced has arisen.6. The decision of the Calcutta High Court in Uttam Chand Saligram v. Jewa Mamooji, ILR 46 Ca1 534: (AIR 1920 Cal 143), on which reliance was placed by the Union does not, in our judgment, support any such proposition. In that case an award of the arbitrator was challenged on the ground that it was without jurisdiction, there being no dispute between the parties, the party applying having admitted his liability under the contract. Rankin, J., held that though the existence of a dispute was an essential condition for the arbitrators jurisdiction, the dispute may be either in the acknowledgement of the debt or as regards the mode and time of satisfying it. In that case the Court held that the defence of the applicant applying for vacating the award was that he was not under any obligation to pay the amount due. This is clear from the observation made on p.540 where the learned Judge observed :"* * * but in truth the petitioners later letters to the Chamber, his petition itself in Paras. 5, 6 and 12, Para 6 of the affidavit filed in this behalf in reply all show conclusively that he was withholding payment under a claim of right so to do. That the claim has little substance makes his case so much the worse."The Union is, however, not seeking to withhold payment under a claim of right so to do. What the Union contends is that under the contract they are liable to pay the amounts due but they will not pay because they have another claim unrelated to the claim in suit against the Company.7. The decision of the Calcutta High Court in Chandanmull Jhaleria v. Clive Mills Co. Ltd., ILR (1948) 2 Cal 297: (AIR 1948 Cal 257 ), on which also reliance was placed does not assist the Union. In that case the Court decided that an arbitration clause in a contract, by which the parties thereto agree to refer their disputes to arbitration, may be wide enough to include a dispute whether the contract itself has or has not been frustrated, but in the present case we are not concerned about any dispute relating to frustration of the contract.8. The principle of the decision of the House of Lords in Heyman v. Darwins Ltd.,1942 AC 356, on which reliance was placed on behalf of the Union has also no application. It was held in that case that when an arbitration clause in a contract provides without any qualification that any difference or dispute which may arise "in respect of" or "with regard to" or "under the contract" shall be referred to arbitration, and the parties are at one in asserting that they entered into a binding contract, the clause will apply even if the dispute involves an assertion by one party that circumstances have arisen, whether before or after the contract has been partly performed, which have the effect of discharging one or both parties from all subsequent liability under the contract, such as repudiation of the contract by one party accepted by the other, or frustration of the contract. Viscount Simon, L. C. observed in that case :"An arbitration clause is a written submission, agreed to by the parties to the contract, and, like other written submissions to arbitration, must be construed according to its language and in the light of the circumstances in which it is made. If the dispute is whether the contract which contains the clause has ever been entered into at all, the issue cannot go to arbitration under the clause, for the party who denies that he has ever entered into the contract is thereby denying that he has ever joined in the submission. Similarly, if one party to the alleged contract is contending that it is void ab initio (because, for example, the making of such a contract is illegal), the arbitration clause cannot operate, for on this view the clause itself also is void. But, in a situation where the parties are at one in asserting that they entered into a binding contract, but a difference has arisen between them whether there has been a breach by one side or the other, or whether circumstances have arisen which have discharged one or both parties from further performance, such differences should be regarded as differences which have arisen "in respect of," or "with regard to" or "under the contract", and an arbitration clause which uses these, or similar expressions should be construed accordingly."But the Unions is not seeking to go to arbitration on a dispute between the parties about a breach committed by one side or the other or whether circumstances have arisen which have discharged one or both parties from further performance. It is a case in which in substance there is no dispute between the parties "under", "in connection with", or even "with regard to" the contracts. The plea raised by the Union for stay of the suit was frivolous. It is somewhat surprising that the plea should have been raised and persisted in, and even after going to arbitration in the other case have been brought up to this Court involving large costs to the public exchequer. | 0[ds]8. The principle of the decision of the House of Lords in Heyman v. Darwins Ltd.,1942 AC 356, on which reliance was placed on behalf of the Union has also no application. It was held in that case that when an arbitration clause in a contract provides without any qualification that any difference or dispute which may arise "in respect of" or "with regard to" or "under the contract" shall be referred to arbitration, and the parties are at one in asserting that they entered into a binding contract, the clause will apply even if the dispute involves an assertion by one party that circumstances have arisen, whether before or after the contract has been partly performed, which have the effect of discharging one or both parties from all subsequent liability under the contract, such as repudiation of the contract by one party accepted by the other, or frustration of thethe Unions is not seeking to go to arbitration on a dispute between the parties about a breach committed by one side or the other or whether circumstances have arisen which have discharged one or both parties from further performance. It is a case in which in substance there is no dispute between the parties "under", "in connection with", or even "with regard to" the contracts. The plea raised by the Union for stay of the suit was frivolous. It is somewhat surprising that the plea should have been raised and persisted in, and even after going to arbitration in the other case have been brought up to this Court involving large costs to the public exchequer. | 0 | 2,247 | 299 | ### Instruction:
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urged that mere refusal by the Union to pay the amount due is sufficient to raise a dispute "in connection with the contract" within the meaning of Cl. 21 of the Arbitration agreement. We are unable to agree with that contention. A dispute that the Union is not liable to pay the price under the terms of the contract is undoubtedly a dispute under the contract, and in any event in connection with the contract. But a plea that the Union though liable to pay the amount under the terms of the contract will not pay it because it desires to appropriate it towards another claim under another independent contract cannot reasonably be regarded as a dispute "under or in connection" with that contract under which the liability sought to be enforced has arisen.6. The decision of the Calcutta High Court in Uttam Chand Saligram v. Jewa Mamooji, ILR 46 Ca1 534: (AIR 1920 Cal 143), on which reliance was placed by the Union does not, in our judgment, support any such proposition. In that case an award of the arbitrator was challenged on the ground that it was without jurisdiction, there being no dispute between the parties, the party applying having admitted his liability under the contract. Rankin, J., held that though the existence of a dispute was an essential condition for the arbitrators jurisdiction, the dispute may be either in the acknowledgement of the debt or as regards the mode and time of satisfying it. In that case the Court held that the defence of the applicant applying for vacating the award was that he was not under any obligation to pay the amount due. This is clear from the observation made on p.540 where the learned Judge observed :"* * * but in truth the petitioners later letters to the Chamber, his petition itself in Paras. 5, 6 and 12, Para 6 of the affidavit filed in this behalf in reply all show conclusively that he was withholding payment under a claim of right so to do. That the claim has little substance makes his case so much the worse."The Union is, however, not seeking to withhold payment under a claim of right so to do. What the Union contends is that under the contract they are liable to pay the amounts due but they will not pay because they have another claim unrelated to the claim in suit against the Company.7. The decision of the Calcutta High Court in Chandanmull Jhaleria v. Clive Mills Co. Ltd., ILR (1948) 2 Cal 297: (AIR 1948 Cal 257 ), on which also reliance was placed does not assist the Union. In that case the Court decided that an arbitration clause in a contract, by which the parties thereto agree to refer their disputes to arbitration, may be wide enough to include a dispute whether the contract itself has or has not been frustrated, but in the present case we are not concerned about any dispute relating to frustration of the contract.8. The principle of the decision of the House of Lords in Heyman v. Darwins Ltd.,1942 AC 356, on which reliance was placed on behalf of the Union has also no application. It was held in that case that when an arbitration clause in a contract provides without any qualification that any difference or dispute which may arise "in respect of" or "with regard to" or "under the contract" shall be referred to arbitration, and the parties are at one in asserting that they entered into a binding contract, the clause will apply even if the dispute involves an assertion by one party that circumstances have arisen, whether before or after the contract has been partly performed, which have the effect of discharging one or both parties from all subsequent liability under the contract, such as repudiation of the contract by one party accepted by the other, or frustration of the contract. Viscount Simon, L. C. observed in that case :"An arbitration clause is a written submission, agreed to by the parties to the contract, and, like other written submissions to arbitration, must be construed according to its language and in the light of the circumstances in which it is made. If the dispute is whether the contract which contains the clause has ever been entered into at all, the issue cannot go to arbitration under the clause, for the party who denies that he has ever entered into the contract is thereby denying that he has ever joined in the submission. Similarly, if one party to the alleged contract is contending that it is void ab initio (because, for example, the making of such a contract is illegal), the arbitration clause cannot operate, for on this view the clause itself also is void. But, in a situation where the parties are at one in asserting that they entered into a binding contract, but a difference has arisen between them whether there has been a breach by one side or the other, or whether circumstances have arisen which have discharged one or both parties from further performance, such differences should be regarded as differences which have arisen "in respect of," or "with regard to" or "under the contract", and an arbitration clause which uses these, or similar expressions should be construed accordingly."But the Unions is not seeking to go to arbitration on a dispute between the parties about a breach committed by one side or the other or whether circumstances have arisen which have discharged one or both parties from further performance. It is a case in which in substance there is no dispute between the parties "under", "in connection with", or even "with regard to" the contracts. The plea raised by the Union for stay of the suit was frivolous. It is somewhat surprising that the plea should have been raised and persisted in, and even after going to arbitration in the other case have been brought up to this Court involving large costs to the public exchequer.
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8. The principle of the decision of the House of Lords in Heyman v. Darwins Ltd.,1942 AC 356, on which reliance was placed on behalf of the Union has also no application. It was held in that case that when an arbitration clause in a contract provides without any qualification that any difference or dispute which may arise "in respect of" or "with regard to" or "under the contract" shall be referred to arbitration, and the parties are at one in asserting that they entered into a binding contract, the clause will apply even if the dispute involves an assertion by one party that circumstances have arisen, whether before or after the contract has been partly performed, which have the effect of discharging one or both parties from all subsequent liability under the contract, such as repudiation of the contract by one party accepted by the other, or frustration of thethe Unions is not seeking to go to arbitration on a dispute between the parties about a breach committed by one side or the other or whether circumstances have arisen which have discharged one or both parties from further performance. It is a case in which in substance there is no dispute between the parties "under", "in connection with", or even "with regard to" the contracts. The plea raised by the Union for stay of the suit was frivolous. It is somewhat surprising that the plea should have been raised and persisted in, and even after going to arbitration in the other case have been brought up to this Court involving large costs to the public exchequer.
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DLF Home Developers Limited Vs. Rajapura Homes Private Limited & Anr | the main agreement itself. 29. The nature of arbitration clauses in the present case are substantially different when compared with the dispute resolution clause of the main agreement in Olympus Superstructure (Supra). The arbitration Clause 9 of the Rajapura SPA/Southern Homes SPA does not have any overriding effect and is in no way broader or wider when compared to Clause 11 of the RCMA/SCMA. Therefore, even if we were to assume that the present differences between the parties are incidental to the terms of the Share Purchase Agreements, it is difficult to construe that Clause 9 of Share Purchase Agreements contemplates adjudication of the issues that are connected with or are in relation to the subject matter of the Share Purchase Agreements. 30. Further, if the Respondent(s) plea, that present dispute(s) should be arbitrated only under the Rajapura SPA/Southern Homes SPA is accepted at face value, the eventual result would be that any and all disputes relating to the Petitioners construction obligation would be arbitrable under the provisions of the Share Purchase Agreements only. But then, what would be the purpose of having a separate arbitration clause 11 under the RCMA/SCMA? The parties do not seem to have rendered the arbitration clause in RCMA and SCMA as redundant, more so when these are the agreements later in time. It, thus, appears to us that the scope of the arbitration clause in Rajapura SPA/Southern Homes SPA is limited to issues relating to the agreements primary subject matter, i.e., any dispute arising out of the transaction of sale and purchase of shares. The provisions of the RCMA/SCMA, and the arbitration clause therein, would as a logical corollary then be applicable to any dispute/difference concerning the performance of the construction related obligations and deposit of agreed amount by Respondent No.2 or payment thereof to the Petitioner-DHDL. 31. The Petitioner has not once alleged in these Petitions that the dispute sought to be referred to Arbitration emanates from the Share Purchase Agreements. As far as the share transactions between the Petitioner and Respondent No.2 is concerned, learned Senior Counsel for the Petitioner has unequivocally submitted that the purchase of shares by Respondent No.2 has been duly completed. There is nothing on record to suggest that Respondent No.2 is aggrieved by non-compliance, deviation or breach of promise to sell its shares by the Petitioner-DHDL. On the contrary, the counter-affidavit filed by the Respondent(s) indicates that the sale of the shares of Respondent No.1 and the Begur Company have been completed. Still further, it is not the case that Ressimo PCC has already invoked Clause 9 of the Rajapura SPA or of the Southern Homes SPA. Thus, when neither party has pleaded the infringement of the core provisions of the Share Purchase Agreements, it is difficult to accept outrightly that the subject-controversy falls within the ambit of Clause 9 of the said agreements and can be adjudicated only under the rules of SIAC, with seat and venue at Singapore. 32. At the cost of repetition, we may re-iterate that the Parties have neither denied that there is no arbitrable dispute between them nor have they challenged the existence of the arbitration clause(s) in the Construction Management Service Agreements. Considering that the primary twin-test envisioned under Section 11(6) of the Act has been satisfied by the Petitioner-DHDL, we are of the view that the instant application(s) are maintainable. The nature of disputes that have arisen between the parties, thus, can be adjudicated in the arbitral proceedings under Clause 11 of the RCMA and SCMA. 33. It goes without saying, that if on appreciation of the facts and law, the arbitrator finds that the real dispute between the parties stems from the Share Purchase Agreements dated 08.07.2016 and 25.01.2017, the arbitrator shall be free to wind up the proceedings with liberty to the Parties to seek redressal under the rules of SIAC. 34. We may now briefly deal with the question whether the disputes should be referred to a consolidated and composite tribunal or should there be two different arbitral tribunals to resolve the same. It was urged on behalf of the Petitioner that since the RCMA and SCMA are inextricably interlinked to each other, the dispute/difference cannot be segregated into two separate proceedings. It was pointed out that the obligation of computation/determination and payment of Fee to the Petitioner arises out of the SCMA, the RCMA and the Fee Agreement, and under the Fee Agreement, the parties have to calculate the DLF Receivables. Such DLF Receivables have to be computed taking into account financial components/accounts of both, the Southern Homes Project and the Rajapura Homes Projects. It was thus submitted that in order to avoid multiplicity of proceedings which may result in conflicting awards, the sum of disputes may be referred to a single and composite arbitral tribunal. 35. The fact remains that the RCMA and SCMA, though interlinked and connected, are still two separate agreements. We also cannot lose sight of the fact that the case of the Respondent(s) is that the Petitioner has committed breaches under both RCMA as well as SCMA, and that the genesis of the disputes lies in separate and distinct facts. Save where the parties have resolved to the contrary, it would be inappropriate to consolidate the proceedings originating out of two separate agreements. However, since the Fee Agreement provides that the Fee can only be calculated after taking into consideration various financial components of both the Rajapura Homes Projects and the Southern Homes Project, it would be necessary for the sake of avoiding wastage of time and resources, and to avoid any conflicting awards, that the disputes under Arbitration Petition No.17 and Arbitration Petition No.16 are referred to a sole Arbitrator. We leave it to the wisdom of the sole arbitrator to decide whether the disputes should be consolidated and adjudicated under one composite award or otherwise. The modalities and manner in which the two separate arbitral proceedings shall be conducted shall also be resolved by the sole arbitrator. CONCLUSION | 1[ds]18. The jurisdiction of this Court under Section 11 is primarily to find out whether there exists a written agreement between the parties for resolution of disputes through arbitration and whether the aggrieved party has made out a prima facie arbitrable case. The limited jurisdiction, however, does not denude this Court of its judicial function to look beyond the bare existence of an arbitration clause to cut the deadwood. A three-judge bench in Vidya Drolia (Supra), has eloquently clarified that this Court, with a view to prevent wastage of public and private resources, may conduct prima facie review at the stage of reference to weed out any frivolous or vexatious claims. In this context, the Court, speaking through Sanjiv Khanna, J. held that:154.2. Scope of judicial review and jurisdiction of the court under Sections 8 and 11 of the Arbitration Act is identical but extremely limited and restricted.154.3. The general rule and principle, in view of the legislative mandate clear from Act 3 of 2016 and Act 33 of 2019, and the principle of severability and competence-competence, is that the Arbitral Tribunal is the preferred first authority to determine and decide all questions of non-arbitrability. The court has been conferred power of second look on aspects of non-arbitrability post the award in terms of sub-clauses (i), (ii) or (iv) of Section 34(2)(a) or sub-clause (i) of Section 34(2)(b) of the Arbitration Act.154.4. Rarely as a demurrer the court may interfere at Section 8 or 11 stage when it is manifestly and ex facie certain that the arbitration agreement is non-existent, invalid or the disputes are non-arbitrable, though the nature and facet of non-arbitrability would, to some extent, determine the level and nature of judicial scrutiny. The restricted and limited review is to check and protect parties from being forced to arbitrate when the matter is demonstrably non-arbitrable and to cut off the deadwood. The court by default would refer the matter when contentions relating to non-arbitrability are plainly arguable; when consideration in summary proceedings would be insufficient and inconclusive; when facts are contested; when the party opposing arbitration adopts delaying tactics or impairs conduct of arbitration proceedings. This is not the stage for the court to enter into a mini trial or elaborate review so as to usurp the jurisdiction of the Arbitral Tribunal but to affirm and uphold integrity and efficacy of arbitration as an alternative dispute resolution mechanism.N.V. Ramana, J. (as His Lordship then was) in his supplementary opinion further crystalised the position as follows:244. Before we part, the conclusions reached, with respect to Question 1, are:244.1. Sections 8 and 11 of the Act have the same ambit with respect to judicial interference.244.2. Usually, subject-matter arbitrability cannot be decided at the stage of Section 8 or 11 of the Act, unless it is a clear case of deadwood.244.3. The court, under Sections 8 and 11, has to refer a matter to arbitration or to appoint an arbitrator, as the case may be, unless a party has established a prima facie (summary findings) case of non- existence of valid arbitration agreement, by summarily portraying a strong case that he is entitled to such a finding.244.4. The court should refer a matter if the validity of the arbitration agreement cannot be determined on a prima facie basis, as laid down above i.e. when in doubt, do refer.244.5. The scope of the court to examine the prima facie validity of an arbitration agreement includes only:244.5.1. Whether the arbitration agreement was in writing? Or244.5.3. Whether the core contractual ingredients qua the arbitration agreement were fulfilled?244.5.4. On rare occasions, whether the subject-matter of dispute is arbitrable?19. To say it differently, this Court or a High Court, as the case may be, are not expected to act mechanically merely to deliver a purported dispute raised by an applicant at the doors of the chosen Arbitrator. On the contrary, the Court(s) are obliged to apply their mind to the core preliminary issues, albeit, within the framework of Section 11(6-A) of the Act. Such a review, as already clarified by this Court, is not intended to usurp the jurisdiction of the Arbitral Tribunal but is aimed at streamlining the process of arbitration. Therefore, even when an arbitration agreement exists, it would not prevent the Court to decline a prayer for reference if the dispute in question does not correlate to the said agreement.25. The Share Purchase Agreements as well as the Construction Management Agreements are subsisting and have not been repudiated by the Parties. Both sets of agreements contain arbitration clauses that are not similar to one another. We are, therefore, of the considered opinion that in order to determine the nature of arbitral proceedings, the two groups of agreements will have to be read in harmony and reconciled so as to avoid any head on collision, and thereafter a conclusion as to which of the clauses would be applicable in the present case, needs to be drawn.26. Upon perusing the Share Purchase Agreements, it is clear that the primary purpose of these agreements is to effectuate the change of ownership of Respondent No.1 and the Begur Company from DHDL to Resimmo PCC. No doubt, the Rajapura SPA and the Southern Homes SPA as per their Clause 6.1 and 6.2, do provide for the completion of the respective residential projects as a post- closing obligation, however, these construction obligations had to be fulfilled in accordance with the terms of the Construction Agreements. The very purpose of the RCMA and SCMA was, on the other hand, to operationalise the manner in which the Petitioner- DHDL would achieve the said construction related obligations. The construction agreements not only contemplate the scope of services to be provided by the petitioner but also lays down the obligation on Respondent No.2 to pay Fee to the Petitioner-DHDL upon completion of the residential projects. A prima facie reading of `Share Purchase Agreements and `Construction Management Agreements, does suggest that notwithstanding certain overlaps between these agreements, their object and field of operation is different and distinct in nature. It is therefore difficult for us to accept it outrightly that the respective Share Purchase Agreements are the principal agreements governing the transaction between the parties or that the present disputes can be resolved solely under the arbitration clause contained therein.27. The dispute sought to be referred to arbitration by the Petitioner DHDL pertains to non-deposit of agreed amount by Respondent No.2 and resultant payment thereof as `Fee which the Petitioner claims in terms of clause 4 of RCMA/SCMA. Whether or not the Petitioner has complied with the condition precedent under Rajapura SPA and thus has become entitled to `fee as per clause referred to above, is purely a question of fact to be determined by the Arbitral Tribunal.28. We may at this stage also briefly refer to the judgment of this Court in Olympus Superstructure (Supra), wherein this Court faced two different arbitration clauses in two related agreements between the same parties. The main agreement therein was concerned with the selling of certain flats, and the related agreement was an Interior Design Agreement, both of which contained an arbitration clause that was not similar to each other. Since two valid arbitration clauses existed and the parties were relying upon the different arbitration clauses, this Court harmonised both the clauses and viewed that the arbitration clause in the main agreement was worded in wide terms and specifically contemplated issues that were in any way connected with, arising out of or in relation to the subject matter of the arbitration agreement. This Court, therefore, aptly held that since the disputes arising from the Interior Design Agreement were intrinsically connected with the disputes and differences arising out of the main contract, such dispute could also be adjudicated under the main agreement itself.29. The nature of arbitration clauses in the present case are substantially different when compared with the dispute resolution clause of the main agreement in Olympus Superstructure (Supra). The arbitration Clause 9 of the Rajapura SPA/Southern Homes SPA does not have any overriding effect and is in no way broader or wider when compared to Clause 11 of the RCMA/SCMA. Therefore, even if we were to assume that the present differences between the parties are incidental to the terms of the Share Purchase Agreements, it is difficult to construe that Clause 9 of Share Purchase Agreements contemplates adjudication of the issues that are connected with or are in relation to the subject matter of the Share Purchase Agreements.30. Further, if the Respondent(s) plea, that present dispute(s) should be arbitrated only under the Rajapura SPA/Southern Homes SPA is accepted at face value, the eventual result would be that any and all disputes relating to the Petitioners construction obligation would be arbitrable under the provisions of the Share Purchase Agreements only. But then, what would be the purpose of having a separate arbitration clause 11 under the RCMA/SCMA? The parties do not seem to have rendered the arbitration clause in RCMA and SCMA as redundant, more so when these are the agreements later in time. It, thus, appears to us that the scope of the arbitration clause in Rajapura SPA/Southern Homes SPA is limited to issues relating to the agreements primary subject matter, i.e., any dispute arising out of the transaction of sale and purchase of shares. The provisions of the RCMA/SCMA, and the arbitration clause therein, would as a logical corollary then be applicable to any dispute/difference concerning the performance of the construction related obligations and deposit of agreed amount by Respondent No.2 or payment thereof to the Petitioner-DHDL.There is nothing on record to suggest that Respondent No.2 is aggrieved by non-compliance, deviation or breach of promise to sell its shares by the Petitioner-DHDL. On the contrary, the counter-affidavit filed by the Respondent(s) indicates that the sale of the shares of Respondent No.1 and the Begur Company have been completed. Still further, it is not the case that Ressimo PCC has already invoked Clause 9 of the Rajapura SPA or of the Southern Homes SPA. Thus, when neither party has pleaded the infringement of the core provisions of the Share Purchase Agreements, it is difficult to accept outrightly that the subject-controversy falls within the ambit of Clause 9 of the said agreements and can be adjudicated only under the rules of SIAC, with seat and venue at Singapore.32. At the cost of repetition, we may re-iterate that the Parties have neither denied that there is no arbitrable dispute between them nor have they challenged the existence of the arbitration clause(s) in the Construction Management Service Agreements. Considering that the primary twin-test envisioned under Section 11(6) of the Act has been satisfied by the Petitioner-DHDL, we are of the view that the instant application(s) are maintainable. The nature of disputes that have arisen between the parties, thus, can be adjudicated in the arbitral proceedings under Clause 11 of the RCMA and SCMA.33. It goes without saying, that if on appreciation of the facts and law, the arbitrator finds that the real dispute between the parties stems from the Share Purchase Agreements dated 08.07.2016 and 25.01.2017, the arbitrator shall be free to wind up the proceedings with liberty to the Parties to seek redressal under the rules of SIAC.35. The fact remains that the RCMA and SCMA, though interlinked and connected, are still two separate agreements. We also cannot lose sight of the fact that the case of the Respondent(s) is that the Petitioner has committed breaches under both RCMA as well as SCMA, and that the genesis of the disputes lies in separate and distinct facts. Save where the parties have resolved to the contrary, it would be inappropriate to consolidate the proceedings originating out of two separate agreements. However, since the Fee Agreement provides that the Fee can only be calculated after taking into consideration various financial components of both the Rajapura Homes Projects and the Southern Homes Project, it would be necessary for the sake of avoiding wastage of time and resources, and to avoid any conflicting awards, that the disputes under Arbitration Petition No.17 and Arbitration Petition No.16 are referred to a sole Arbitrator. We leave it to the wisdom of the sole arbitrator to decide whether the disputes should be consolidated and adjudicated under one composite award or otherwise. 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the main agreement itself. 29. The nature of arbitration clauses in the present case are substantially different when compared with the dispute resolution clause of the main agreement in Olympus Superstructure (Supra). The arbitration Clause 9 of the Rajapura SPA/Southern Homes SPA does not have any overriding effect and is in no way broader or wider when compared to Clause 11 of the RCMA/SCMA. Therefore, even if we were to assume that the present differences between the parties are incidental to the terms of the Share Purchase Agreements, it is difficult to construe that Clause 9 of Share Purchase Agreements contemplates adjudication of the issues that are connected with or are in relation to the subject matter of the Share Purchase Agreements. 30. Further, if the Respondent(s) plea, that present dispute(s) should be arbitrated only under the Rajapura SPA/Southern Homes SPA is accepted at face value, the eventual result would be that any and all disputes relating to the Petitioners construction obligation would be arbitrable under the provisions of the Share Purchase Agreements only. But then, what would be the purpose of having a separate arbitration clause 11 under the RCMA/SCMA? The parties do not seem to have rendered the arbitration clause in RCMA and SCMA as redundant, more so when these are the agreements later in time. It, thus, appears to us that the scope of the arbitration clause in Rajapura SPA/Southern Homes SPA is limited to issues relating to the agreements primary subject matter, i.e., any dispute arising out of the transaction of sale and purchase of shares. The provisions of the RCMA/SCMA, and the arbitration clause therein, would as a logical corollary then be applicable to any dispute/difference concerning the performance of the construction related obligations and deposit of agreed amount by Respondent No.2 or payment thereof to the Petitioner-DHDL. 31. The Petitioner has not once alleged in these Petitions that the dispute sought to be referred to Arbitration emanates from the Share Purchase Agreements. As far as the share transactions between the Petitioner and Respondent No.2 is concerned, learned Senior Counsel for the Petitioner has unequivocally submitted that the purchase of shares by Respondent No.2 has been duly completed. There is nothing on record to suggest that Respondent No.2 is aggrieved by non-compliance, deviation or breach of promise to sell its shares by the Petitioner-DHDL. On the contrary, the counter-affidavit filed by the Respondent(s) indicates that the sale of the shares of Respondent No.1 and the Begur Company have been completed. Still further, it is not the case that Ressimo PCC has already invoked Clause 9 of the Rajapura SPA or of the Southern Homes SPA. Thus, when neither party has pleaded the infringement of the core provisions of the Share Purchase Agreements, it is difficult to accept outrightly that the subject-controversy falls within the ambit of Clause 9 of the said agreements and can be adjudicated only under the rules of SIAC, with seat and venue at Singapore. 32. At the cost of repetition, we may re-iterate that the Parties have neither denied that there is no arbitrable dispute between them nor have they challenged the existence of the arbitration clause(s) in the Construction Management Service Agreements. Considering that the primary twin-test envisioned under Section 11(6) of the Act has been satisfied by the Petitioner-DHDL, we are of the view that the instant application(s) are maintainable. The nature of disputes that have arisen between the parties, thus, can be adjudicated in the arbitral proceedings under Clause 11 of the RCMA and SCMA. 33. It goes without saying, that if on appreciation of the facts and law, the arbitrator finds that the real dispute between the parties stems from the Share Purchase Agreements dated 08.07.2016 and 25.01.2017, the arbitrator shall be free to wind up the proceedings with liberty to the Parties to seek redressal under the rules of SIAC. 34. We may now briefly deal with the question whether the disputes should be referred to a consolidated and composite tribunal or should there be two different arbitral tribunals to resolve the same. It was urged on behalf of the Petitioner that since the RCMA and SCMA are inextricably interlinked to each other, the dispute/difference cannot be segregated into two separate proceedings. It was pointed out that the obligation of computation/determination and payment of Fee to the Petitioner arises out of the SCMA, the RCMA and the Fee Agreement, and under the Fee Agreement, the parties have to calculate the DLF Receivables. Such DLF Receivables have to be computed taking into account financial components/accounts of both, the Southern Homes Project and the Rajapura Homes Projects. It was thus submitted that in order to avoid multiplicity of proceedings which may result in conflicting awards, the sum of disputes may be referred to a single and composite arbitral tribunal. 35. The fact remains that the RCMA and SCMA, though interlinked and connected, are still two separate agreements. We also cannot lose sight of the fact that the case of the Respondent(s) is that the Petitioner has committed breaches under both RCMA as well as SCMA, and that the genesis of the disputes lies in separate and distinct facts. Save where the parties have resolved to the contrary, it would be inappropriate to consolidate the proceedings originating out of two separate agreements. However, since the Fee Agreement provides that the Fee can only be calculated after taking into consideration various financial components of both the Rajapura Homes Projects and the Southern Homes Project, it would be necessary for the sake of avoiding wastage of time and resources, and to avoid any conflicting awards, that the disputes under Arbitration Petition No.17 and Arbitration Petition No.16 are referred to a sole Arbitrator. We leave it to the wisdom of the sole arbitrator to decide whether the disputes should be consolidated and adjudicated under one composite award or otherwise. The modalities and manner in which the two separate arbitral proceedings shall be conducted shall also be resolved by the sole arbitrator. CONCLUSION
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and resultant payment thereof as `Fee which the Petitioner claims in terms of clause 4 of RCMA/SCMA. Whether or not the Petitioner has complied with the condition precedent under Rajapura SPA and thus has become entitled to `fee as per clause referred to above, is purely a question of fact to be determined by the Arbitral Tribunal.28. We may at this stage also briefly refer to the judgment of this Court in Olympus Superstructure (Supra), wherein this Court faced two different arbitration clauses in two related agreements between the same parties. The main agreement therein was concerned with the selling of certain flats, and the related agreement was an Interior Design Agreement, both of which contained an arbitration clause that was not similar to each other. Since two valid arbitration clauses existed and the parties were relying upon the different arbitration clauses, this Court harmonised both the clauses and viewed that the arbitration clause in the main agreement was worded in wide terms and specifically contemplated issues that were in any way connected with, arising out of or in relation to the subject matter of the arbitration agreement. This Court, therefore, aptly held that since the disputes arising from the Interior Design Agreement were intrinsically connected with the disputes and differences arising out of the main contract, such dispute could also be adjudicated under the main agreement itself.29. The nature of arbitration clauses in the present case are substantially different when compared with the dispute resolution clause of the main agreement in Olympus Superstructure (Supra). The arbitration Clause 9 of the Rajapura SPA/Southern Homes SPA does not have any overriding effect and is in no way broader or wider when compared to Clause 11 of the RCMA/SCMA. Therefore, even if we were to assume that the present differences between the parties are incidental to the terms of the Share Purchase Agreements, it is difficult to construe that Clause 9 of Share Purchase Agreements contemplates adjudication of the issues that are connected with or are in relation to the subject matter of the Share Purchase Agreements.30. Further, if the Respondent(s) plea, that present dispute(s) should be arbitrated only under the Rajapura SPA/Southern Homes SPA is accepted at face value, the eventual result would be that any and all disputes relating to the Petitioners construction obligation would be arbitrable under the provisions of the Share Purchase Agreements only. But then, what would be the purpose of having a separate arbitration clause 11 under the RCMA/SCMA? The parties do not seem to have rendered the arbitration clause in RCMA and SCMA as redundant, more so when these are the agreements later in time. It, thus, appears to us that the scope of the arbitration clause in Rajapura SPA/Southern Homes SPA is limited to issues relating to the agreements primary subject matter, i.e., any dispute arising out of the transaction of sale and purchase of shares. The provisions of the RCMA/SCMA, and the arbitration clause therein, would as a logical corollary then be applicable to any dispute/difference concerning the performance of the construction related obligations and deposit of agreed amount by Respondent No.2 or payment thereof to the Petitioner-DHDL.There is nothing on record to suggest that Respondent No.2 is aggrieved by non-compliance, deviation or breach of promise to sell its shares by the Petitioner-DHDL. On the contrary, the counter-affidavit filed by the Respondent(s) indicates that the sale of the shares of Respondent No.1 and the Begur Company have been completed. Still further, it is not the case that Ressimo PCC has already invoked Clause 9 of the Rajapura SPA or of the Southern Homes SPA. Thus, when neither party has pleaded the infringement of the core provisions of the Share Purchase Agreements, it is difficult to accept outrightly that the subject-controversy falls within the ambit of Clause 9 of the said agreements and can be adjudicated only under the rules of SIAC, with seat and venue at Singapore.32. At the cost of repetition, we may re-iterate that the Parties have neither denied that there is no arbitrable dispute between them nor have they challenged the existence of the arbitration clause(s) in the Construction Management Service Agreements. Considering that the primary twin-test envisioned under Section 11(6) of the Act has been satisfied by the Petitioner-DHDL, we are of the view that the instant application(s) are maintainable. The nature of disputes that have arisen between the parties, thus, can be adjudicated in the arbitral proceedings under Clause 11 of the RCMA and SCMA.33. It goes without saying, that if on appreciation of the facts and law, the arbitrator finds that the real dispute between the parties stems from the Share Purchase Agreements dated 08.07.2016 and 25.01.2017, the arbitrator shall be free to wind up the proceedings with liberty to the Parties to seek redressal under the rules of SIAC.35. The fact remains that the RCMA and SCMA, though interlinked and connected, are still two separate agreements. We also cannot lose sight of the fact that the case of the Respondent(s) is that the Petitioner has committed breaches under both RCMA as well as SCMA, and that the genesis of the disputes lies in separate and distinct facts. Save where the parties have resolved to the contrary, it would be inappropriate to consolidate the proceedings originating out of two separate agreements. However, since the Fee Agreement provides that the Fee can only be calculated after taking into consideration various financial components of both the Rajapura Homes Projects and the Southern Homes Project, it would be necessary for the sake of avoiding wastage of time and resources, and to avoid any conflicting awards, that the disputes under Arbitration Petition No.17 and Arbitration Petition No.16 are referred to a sole Arbitrator. We leave it to the wisdom of the sole arbitrator to decide whether the disputes should be consolidated and adjudicated under one composite award or otherwise. The modalities and manner in which the two separate arbitral proceedings shall be conducted shall also be resolved by the sole arbitrator.
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Chandra Bhavan Boarding And Lodging, Bangalore Vs. The State Of Mysore And Anr | on the extent to which the directive principles are implemented. The mandate of the Constitution is to build a welfare society in which justice social, economic and political shall inform all institutions of our national life. The hopes and aspirations aroused by the Constitution will be belied if the minimum needs of the lowest of our citizens are not met.16. It was urged on behalf of the hotel owners that the power conferred to fix the minimum wage on the appropriate Government under S. 5 (1) is a quasi-judicial power and in exercising that power, it was incumbent on the appropriate Government to observe the principles of natural justice. The Government having failed to observe those principles, the fixation of wages made is liable to be struck down. It is unnecessary for our present purpose to go into the question whether the power given under the Act to fix minimum wages is a quasi-judicial power or an administrative power. As observed by this Court in A. K. Karaipak v. Union of India, 1969-2 SCC 262 = (AIR 1970 SC 150 ), the dividing line between an administrative power and quasi-judicial power is quite thin and is being gradually obliterated.It is further observed therein that principles of natural justice apply to the exercise of the administrative powers as well. But those principles are not embodied rules. What particular rule of natural justice, if any, should apply to a given case must depend to a great extent on the facts and circumstances of that case, the framework, of the law under which the inquiry is held and the constitution of the tribunal or body of persons appointed for the purpose.17. Taking into consideration the provisions of the Act, the objective behind the Act, the purposes intended to be achieved and the high authority on whom the power is conferred, we have no doubt that the procedure adopted was adequate and effective.We have equally no doubt that reasonable opportunity had been given to all the concerned parties to represent their case. We are unable to agree that the impugned order is vitiated because of the Governments failure to constitute a committee under Section 5 (1) (a).We see no substance in the contention that the Government is not competent to enhance the rate of wages mentioned in the proposals published. If it has power to reduce those rates, as desired by the employers, it necessarily follows that it has power to enhance them. There is no merit in the contention that the Government must go on publishing proposals after proposals until a stage is reached where no change whatsoever is necessary to be made in the last proposal made.18. The contention that the Government has no power to fix different minimum wages for different industries or in different localities is no more available in view of the decision of this Court in M/s. Bhaikusa Yamass Khatriya v. Sangamner Akola Taluka Bidi Kamgar Union, (1963) Supp SCR 524 = (AIR 1963 SC 806 ).The fixation of minimum wages depends on the prevailing economic conditions, the cost of living in a place, the nature of the work to be performed and the conditions in which the work is performed.The contention that it was impermissible for the Government to divide the State into several zones is opposed to Section 3 (3) as well as to the scheme of the Act.19. On the basis of the material before us we are unable to say that the various zones had not been made on any rational basis. The Government has given good reasons in support of the steps taken by it. Bangalore is the capital of the State and Mangalore is a major port. Therefore they may stand on a different footing. In matter like the preparation of zones we have to trust the State Government unless it is shown that collateral considerations have influenced its decision. No such plea was taken. The argument based on cost of living index showing that cost of living index was higher in several other towns in the State than Bangalore or Mangalore is not a well-founded argument. The cost of living is one thing, cost of living index is another. What is relevant is the former and not the latter. The latter depends on the base year, which is not the same in all the towns and the prices of certain selected goods in each of the towns concerned in the base year and thereafter which again is likely to differ from town to town.20. The contention relating to the value of the food that may be supplied to the employee is not merely petty, it is misconceived as well. For example the employers contend that a minimum wage of Rs. 80 per month in Bangalore and Mangalore for a cleaner is excessive; at the same time they assert that the computation of the value of the food to be supplied to him at Rs. 40 per month is not adequate. They fail to see the obvious contradictions in those pleas. In fixing minimum wages, a family of three members has to be taken into consideration. Further the food is not the only item taken into consideration. We have earlier referred to the other components of a minimum wage. Therefore if the value of the food supplied has to be increased, minimum wages also will have to be increased. Further the impugned notification does not authorise under Section 11 (2) the payment of any portion of wages in kind.It merely says that if the employer supplies free meals to any employee, he may deduct the sum mentioned in the notification. It is only an option given and not a duty imposed. Therefore the procedure prescribed in Rule 21 of the Rules framed under the Act is inapplicable to the facts of the case before us. The relevant rule is Rule 22 (2) (v) i.e., the valuation of an amenity. We fail to see why the supplying of food is not an amenity.21. | 0[ds]It is true that this Court has firmly ruled that the procedural inequality, if read and substantial is also within the vice of Article 14. But then, before a power can be held to be bad the same should be an unguided and unregulated one. But if a power is given to an authority to have recourse to different procedures under different circumstances, that power cannot be considered as an arbitrary power. It must also be remembered that power under Section 5 (1) is given to the State Government and not to any petty official. The State Government can be trusted to exercise that power to further the purposes of the Act. It is not the law that the guidance for the exercise of a power should be gatherable from one of the provisions in the Act. It can be gathered from the circumstances that led to the enactment of the law in question i.e., the mischief that was intended to be remedied, the preamble to the Act or even from the scheme of the Act.We have earlier noticed the circumstances under which the Act came to be enacted. Its main object is to prevent sweated labour as well as exploitation of unorganised labour. It proceeds on the basis that it is the duty of the State to see that at least minimum wages are paid to the employees irrespective of the capacity of the industry or unit to pay the same. The mandate of Article 43 of the Constitution is that the State should endeavour to secure by suitable legislation or economic organisation or in any other way, to all workers agricultural, industrial or otherwise, work, a living wage, conditions of work ensuring a decent standard of life and full enjoyment of leisure and social and cultural opportunities. The fixing of minimum wages is just the first step in that direction. In course of time the State has to take many more steps to implement that mandate. As seen earlier that resolution of the Geneva Convention of 1928 which had been accepted by this country called upon the covenanting States to fix minimum wages for the employees in employments where the labour is unorganized or where the wages paid are low. Minimum wage does not mean wage just sufficient for bare sustenance. At present the conception of a minimum wage is a wage which is somewhat intermediate to a wage which is just sufficient for bare sustenance and a fair wage. That concept includes not only the wage sufficient to meet the bare sustenance of an employee and his family. It also includes expenses necessary for his other primary needs such as medical expenses, expenses to meet some education for his children, and in some cases transport charges etc. - see U. Unnichoyi v. State of Kerala, 1962-1 SCR 946 = (AIR 1962 SC 12 ).The concept of minimum wage is likely to undergo a change with the growth of our economy and with the change in the standard of living. It is not a static concept. Its concomitants must necessarily increase with the progress of the society. It is likely to differ from place to place and from industry to industry. That is clear from the provisions of the Act itself and is inherent in the very concept. That being the case it is absolutely impossible for the legislature to undertake the task of fixing minimum wages in respect of any industry much less in respect of an employment. That process must necessarily be left to the Government. Before minimum wages in any employment can be fixed it will be necessary to collect considerable data. That cannot be done by the legislature. It can be best done by the Government. The legislature has determined the legislative policy and formulated the same as a binding rule of conduct.The legislative policy is enumerated with sufficient clearness. The Government is merely charged with the duty of implementing that policy. There is no basis for saying that the legislature had abdicated any of its legislative functions. The legislature has prescribed two different procedures for collecting the necessary data, one contained in Section 5 (1) (a) and the other in Section 5 (1) (b). In either case it is merely a procedure for gathering the necessary information. The Government is not bound by the advice given by the committee appointed under Section 5 (1) (a). Discretion to select one of the two procedures prescribed for collecting the data is advisedly left to the Government.In the case of a particular employment, the Government may have sufficient data in its possession to enable it to formulate proposals under Section 5 (1) (b). Therefore it may not be necessary for it to constitute a committee to tender advice to it but in the case of another employment it may not be in possession of sufficient data. Therefore it might be necessary for it to constitute a committee to collect the data and tender its advice. If the Government is satisfied that it has enough material before it to enable it to proceed under Section 5 (1) (b) it can very well do so.Which procedure should be adopted in any particular employment depends on the nature of the employment and the information the Government has in its possession about that employment. Hence the powers conferred on the Government cannot be considered as either unguided or arbitrary.In the instant case as seen earlier the question of fixing wages for the various categories of employees in residential hotels and eating houses was before the Government from 1960 and the Government had taken various steps in that regard. It is reasonable to assume that by the time the Government published the proposals in pursuance of which the impugned notification was issued, it had before it adequate material on the basis of which it could formulate its proposals. Before publishing those proposals, the Government had consulted the advisory committee constituted under Section 7.Under those circumstances we are unable to accede to the contention that either the power conferred under Section 5 (1) is an arbitrary power or that the same had been arbitrarilyis unnecessary for our present purpose to go into the question whether the power given under the Act to fix minimum wages is a quasi-judicial power or an administrative power. As observed by this Court in A. K. Karaipak v. Union of India, 1969-2 SCC 262 = (AIR 1970 SC 150 ), the dividing line between an administrative power and quasi-judicial power is quite thin and is being gradually obliterated.It is further observed therein that principles of natural justice apply to the exercise of the administrative powers as well. But those principles are not embodied rules. What particular rule of natural justice, if any, should apply to a given case must depend to a great extent on the facts and circumstances of that case, the framework, of the law under which the inquiry is held and the constitution of the tribunal or body of persons appointed for the purpose.Taking into consideration the provisions of the Act, the objective behind the Act, the purposes intended to be achieved and the high authority on whom the power is conferred, we have no doubt that the procedure adopted was adequate and effective.We have equally no doubt that reasonable opportunity had been given to all the concerned parties to represent their case. We are unable to agree that the impugned order is vitiated because of the Governments failure to constitute a committee under Section 5 (1) (a).We see no substance in the contention that the Government is not competent to enhance the rate of wages mentioned in the proposals published. If it has power to reduce those rates, as desired by the employers, it necessarily follows that it has power to enhance them. There is no merit in the contention that the Government must go on publishing proposals after proposals until a stage is reached where no change whatsoever is necessary to be made in the last proposal made.The contention that the Government has no power to fix different minimum wages for different industries or in different localities is no more available in view of the decision of this Court in M/s. Bhaikusa Yamass Khatriya v. Sangamner Akola Taluka Bidi Kamgar Union, (1963) Supp SCR 524 = (AIR 1963 SC 806 ).The fixation of minimum wages depends on the prevailing economic conditions, the cost of living in a place, the nature of the work to be performed and the conditions in which the work is performed.The contention that it was impermissible for the Government to divide the State into several zones is opposed to Section 3 (3) as well as to the scheme of the Act.On the basis of the material before us we are unable to say that the various zones had not been made on any rational basis. The Government has given good reasons in support of the steps taken by it. Bangalore is the capital of the State and Mangalore is a major port. Therefore they may stand on a different footing. In matter like the preparation of zones we have to trust the State Government unless it is shown that collateral considerations have influenced its decision. No such plea was taken. The argument based on cost of living index showing that cost of living index was higher in several other towns in the State than Bangalore or Mangalore is not a well-founded argument. The cost of living is one thing, cost of living index is another. What is relevant is the former and not the latter. The latter depends on the base year, which is not the same in all the towns and the prices of certain selected goods in each of the towns concerned in the base year and thereafter which again is likely to differ from town to town.The contention relating to the value of the food that may be supplied to the employee is not merely petty, it is misconceived as well. For example the employers contend that a minimum wage of Rs. 80 per month in Bangalore and Mangalore for a cleaner is excessive; at the same time they assert that the computation of the value of the food to be supplied to him at Rs. 40 per month is not adequate. They fail to see the obvious contradictions in those pleas. In fixing minimum wages, a family of three members has to be taken into consideration. Further the food is not the only item taken into consideration. We have earlier referred to the other components of a minimum wage. Therefore if the value of the food supplied has to be increased, minimum wages also will have to be increased. Further the impugned notification does not authorise under Section 11 (2) the payment of any portion of wages in kind.It merely says that if the employer supplies free meals to any employee, he may deduct the sum mentioned in the notification. It is only an option given and not a duty imposed. Therefore the procedure prescribed in Rule 21 of the Rules framed under the Act is inapplicable to the facts of the case before us. The relevant rule is Rule 22 (2) (v) i.e., the valuation of an amenity. We fail to see why the supplying of food is not an amenity. | 0 | 5,842 | 2,047 | ### 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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on the extent to which the directive principles are implemented. The mandate of the Constitution is to build a welfare society in which justice social, economic and political shall inform all institutions of our national life. The hopes and aspirations aroused by the Constitution will be belied if the minimum needs of the lowest of our citizens are not met.16. It was urged on behalf of the hotel owners that the power conferred to fix the minimum wage on the appropriate Government under S. 5 (1) is a quasi-judicial power and in exercising that power, it was incumbent on the appropriate Government to observe the principles of natural justice. The Government having failed to observe those principles, the fixation of wages made is liable to be struck down. It is unnecessary for our present purpose to go into the question whether the power given under the Act to fix minimum wages is a quasi-judicial power or an administrative power. As observed by this Court in A. K. Karaipak v. Union of India, 1969-2 SCC 262 = (AIR 1970 SC 150 ), the dividing line between an administrative power and quasi-judicial power is quite thin and is being gradually obliterated.It is further observed therein that principles of natural justice apply to the exercise of the administrative powers as well. But those principles are not embodied rules. What particular rule of natural justice, if any, should apply to a given case must depend to a great extent on the facts and circumstances of that case, the framework, of the law under which the inquiry is held and the constitution of the tribunal or body of persons appointed for the purpose.17. Taking into consideration the provisions of the Act, the objective behind the Act, the purposes intended to be achieved and the high authority on whom the power is conferred, we have no doubt that the procedure adopted was adequate and effective.We have equally no doubt that reasonable opportunity had been given to all the concerned parties to represent their case. We are unable to agree that the impugned order is vitiated because of the Governments failure to constitute a committee under Section 5 (1) (a).We see no substance in the contention that the Government is not competent to enhance the rate of wages mentioned in the proposals published. If it has power to reduce those rates, as desired by the employers, it necessarily follows that it has power to enhance them. There is no merit in the contention that the Government must go on publishing proposals after proposals until a stage is reached where no change whatsoever is necessary to be made in the last proposal made.18. The contention that the Government has no power to fix different minimum wages for different industries or in different localities is no more available in view of the decision of this Court in M/s. Bhaikusa Yamass Khatriya v. Sangamner Akola Taluka Bidi Kamgar Union, (1963) Supp SCR 524 = (AIR 1963 SC 806 ).The fixation of minimum wages depends on the prevailing economic conditions, the cost of living in a place, the nature of the work to be performed and the conditions in which the work is performed.The contention that it was impermissible for the Government to divide the State into several zones is opposed to Section 3 (3) as well as to the scheme of the Act.19. On the basis of the material before us we are unable to say that the various zones had not been made on any rational basis. The Government has given good reasons in support of the steps taken by it. Bangalore is the capital of the State and Mangalore is a major port. Therefore they may stand on a different footing. In matter like the preparation of zones we have to trust the State Government unless it is shown that collateral considerations have influenced its decision. No such plea was taken. The argument based on cost of living index showing that cost of living index was higher in several other towns in the State than Bangalore or Mangalore is not a well-founded argument. The cost of living is one thing, cost of living index is another. What is relevant is the former and not the latter. The latter depends on the base year, which is not the same in all the towns and the prices of certain selected goods in each of the towns concerned in the base year and thereafter which again is likely to differ from town to town.20. The contention relating to the value of the food that may be supplied to the employee is not merely petty, it is misconceived as well. For example the employers contend that a minimum wage of Rs. 80 per month in Bangalore and Mangalore for a cleaner is excessive; at the same time they assert that the computation of the value of the food to be supplied to him at Rs. 40 per month is not adequate. They fail to see the obvious contradictions in those pleas. In fixing minimum wages, a family of three members has to be taken into consideration. Further the food is not the only item taken into consideration. We have earlier referred to the other components of a minimum wage. Therefore if the value of the food supplied has to be increased, minimum wages also will have to be increased. Further the impugned notification does not authorise under Section 11 (2) the payment of any portion of wages in kind.It merely says that if the employer supplies free meals to any employee, he may deduct the sum mentioned in the notification. It is only an option given and not a duty imposed. Therefore the procedure prescribed in Rule 21 of the Rules framed under the Act is inapplicable to the facts of the case before us. The relevant rule is Rule 22 (2) (v) i.e., the valuation of an amenity. We fail to see why the supplying of food is not an amenity.21.
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be considered as either unguided or arbitrary.In the instant case as seen earlier the question of fixing wages for the various categories of employees in residential hotels and eating houses was before the Government from 1960 and the Government had taken various steps in that regard. It is reasonable to assume that by the time the Government published the proposals in pursuance of which the impugned notification was issued, it had before it adequate material on the basis of which it could formulate its proposals. Before publishing those proposals, the Government had consulted the advisory committee constituted under Section 7.Under those circumstances we are unable to accede to the contention that either the power conferred under Section 5 (1) is an arbitrary power or that the same had been arbitrarilyis unnecessary for our present purpose to go into the question whether the power given under the Act to fix minimum wages is a quasi-judicial power or an administrative power. As observed by this Court in A. K. Karaipak v. Union of India, 1969-2 SCC 262 = (AIR 1970 SC 150 ), the dividing line between an administrative power and quasi-judicial power is quite thin and is being gradually obliterated.It is further observed therein that principles of natural justice apply to the exercise of the administrative powers as well. But those principles are not embodied rules. What particular rule of natural justice, if any, should apply to a given case must depend to a great extent on the facts and circumstances of that case, the framework, of the law under which the inquiry is held and the constitution of the tribunal or body of persons appointed for the purpose.Taking into consideration the provisions of the Act, the objective behind the Act, the purposes intended to be achieved and the high authority on whom the power is conferred, we have no doubt that the procedure adopted was adequate and effective.We have equally no doubt that reasonable opportunity had been given to all the concerned parties to represent their case. We are unable to agree that the impugned order is vitiated because of the Governments failure to constitute a committee under Section 5 (1) (a).We see no substance in the contention that the Government is not competent to enhance the rate of wages mentioned in the proposals published. If it has power to reduce those rates, as desired by the employers, it necessarily follows that it has power to enhance them. There is no merit in the contention that the Government must go on publishing proposals after proposals until a stage is reached where no change whatsoever is necessary to be made in the last proposal made.The contention that the Government has no power to fix different minimum wages for different industries or in different localities is no more available in view of the decision of this Court in M/s. Bhaikusa Yamass Khatriya v. Sangamner Akola Taluka Bidi Kamgar Union, (1963) Supp SCR 524 = (AIR 1963 SC 806 ).The fixation of minimum wages depends on the prevailing economic conditions, the cost of living in a place, the nature of the work to be performed and the conditions in which the work is performed.The contention that it was impermissible for the Government to divide the State into several zones is opposed to Section 3 (3) as well as to the scheme of the Act.On the basis of the material before us we are unable to say that the various zones had not been made on any rational basis. The Government has given good reasons in support of the steps taken by it. Bangalore is the capital of the State and Mangalore is a major port. Therefore they may stand on a different footing. In matter like the preparation of zones we have to trust the State Government unless it is shown that collateral considerations have influenced its decision. No such plea was taken. The argument based on cost of living index showing that cost of living index was higher in several other towns in the State than Bangalore or Mangalore is not a well-founded argument. The cost of living is one thing, cost of living index is another. What is relevant is the former and not the latter. The latter depends on the base year, which is not the same in all the towns and the prices of certain selected goods in each of the towns concerned in the base year and thereafter which again is likely to differ from town to town.The contention relating to the value of the food that may be supplied to the employee is not merely petty, it is misconceived as well. For example the employers contend that a minimum wage of Rs. 80 per month in Bangalore and Mangalore for a cleaner is excessive; at the same time they assert that the computation of the value of the food to be supplied to him at Rs. 40 per month is not adequate. They fail to see the obvious contradictions in those pleas. In fixing minimum wages, a family of three members has to be taken into consideration. Further the food is not the only item taken into consideration. We have earlier referred to the other components of a minimum wage. Therefore if the value of the food supplied has to be increased, minimum wages also will have to be increased. Further the impugned notification does not authorise under Section 11 (2) the payment of any portion of wages in kind.It merely says that if the employer supplies free meals to any employee, he may deduct the sum mentioned in the notification. It is only an option given and not a duty imposed. Therefore the procedure prescribed in Rule 21 of the Rules framed under the Act is inapplicable to the facts of the case before us. The relevant rule is Rule 22 (2) (v) i.e., the valuation of an amenity. We fail to see why the supplying of food is not an amenity.
|
Travancore Cochin Chemicals Limited Vs. Commissioner Of Income-Tax, Kerala | the construction of the road and, therefore, the amount contributed was capital expenditure. The High Court accordingly answered the question in the negative and against the assessee. In this appeal, brought on a certificate under section 261 of the Income-tax Act, 1961, the assessee challenges the correctness of the answer given by the High Court to the question. 2. The authorities both in this country and in England have pointed out the difficulties in formulating precise rules for distinguishing capital expenditure from revenue expenditure. The line of demarcation has been found to be very thin. Certain broad tests have, however, been laid down, and of them the test suggested by Viscount Cave L.C. in Atherton v. British Insulated and Helsby Cables Ltd. [1925] 10 TC 155 (HL) appears to have been largely accepted in this country. This court in Assam Bengal Cement Co. Ltd. v. Commissioner of Income-tax [1955] 27 ITR 34 (SC), Sitalpur Sugar Works Ltd. v. Commissioner of Income-tax [1963] 49 ITR (SC) 160 and a number of other decisions has adopted the test as laid down in Athertons case [1925] 10 TC 155, 192 (HL) : to refer again to these often quoted lines from Viscount Caves judgment :" When an expenditure is made ...... with a view to bringing into existence an asset or an advantage for the enduring benefit of a trade, I think that there is very good reason (in the absence of special circumstances leading to an opposite conclusion) for treating such an expenditure as properly attributable not to revenue but to capital ". Referring to Athertons case [1925] 10 TC 155 (HL) and certain other authorities on the distinction between capital expenditure and revenue expenditure and the tests to be applied, this court in Assam Bengal Cement Co. Ltd. v. Commissioner of Income-tax [1955] 27 ITR 34 , 45 (SC) observed" If the expenditure is made for acquiring or bringing into existence an asset or advantage for the enduring benefit of the business it is properly attributable to capital and is of the nature of capital expenditure. If on the other hand it is made not for the purpose of bringing into existence any such asset or advantage but for running the business or working it with a view to produce the profits, it is a revenue expenditure. If any such asset or advantage for the enduring benefit of the business is thus acquired or brought into existence it would be immaterial whether the source of the payment was the capital or the income of the concern or whether the payment was made once and for all or was made periodically. The aim and object of the expenditure would determine the character of the expenditure whether it is a capital expenditure or a revenue expenditure. The source or the manner of the payment would then be of no consequence. It is only in those cases where this test is of no avail that one may go to the test of fixed or circulating capital and consider whether the expenditure incurred was part of the fixed capital of the business or part of its circulating capital. If it was part of the fixed capital of the business it would be of the nature of capital expenditure and if it was part of its circulating capital it would be of the nature of revenue expenditure. " 3. In the case before us, the High Court applied Viscount Caves test and found that the expenditure made by the assessee brought into existence an advantage for the enduring benefit of the assessees trade and accordingly held that this was capital expenditure. 4. Each case turns on its own facts. It is not disputed here that the correct test has been applied. Did the money spent by the assessee on construction of the new road secured for it an enduring benefit, or was it necessary for running its business ? On the facts of the case the position seems to us clear enough not to merit an elaborate consideration, that by having the new road constructed for the improvement of transport facilities, the assessee acquired an enduring advantage for its business. The High Court rightly pointed out that the decision of the Calcutta High Court in Commissioner of Income-tax v. Hindusthan Motors Ltd. [1968] 68 ITR 301 (Cal) , on which the Appellate Tribunal relied, is clearly distinguishable on facts ; that was a case where the expenditure incurred was for repair of an existing road which is different from the case where a new road is laid out for the purpose of the assessees business. Mr. Pai, learned counsel for the appellant, has relied on the decision of this court in Lakshmiji Sugar Mills Co. Private Ltd. v. Commissioner of Income-tax [1971] 82 ITR 376 (SC) to contend that even the expenditure on the construction of roads could be revenue expenditure and not expenditure of a capital nature. In Lakshmiji Sugar Mills case. [1971] 82 ITR 376 (SC) the assessee was a private limited company carrying on the business of manufacture and sale of sugar. Under the provisions of the U. P. Sugarcane Regulation of Supply and Purchase Act, 1953, the assessee-company was obliged to contribute certain amounts for the development of roads which were originally the property of the Government and remained so even after the improvement had been madeApart from the fact that in this case the expenditure incurred under a statutory compulsion, there was no finding that the roads were newly made. On the facts of that case this court was satisfied that the development of the roads was meant for facilitating the carrying on of the assessees business. Lakshmiji Sugar Mills case [1971] 82 ITR 376 (SC) is quite different on facts from the one before us and must be confined to the peculiar facts of that case. On the facts of the instant case, we have no doubt that the expenditure incurred by the assessee was of a capital nature. 5. | 0[ds]In the case before us, the High Court applied Viscount Caves test and found that the expenditure made by the assessee brought into existence an advantage for the enduring benefit of the assessees trade and accordingly held that this was capital expenditureEach case turns on its own facts. It is not disputed here that the correct test has been applied. Did the money spent by the assessee on construction of the new road secured for it an enduring benefit, or was it necessary for running its business ? On the facts of the case the position seems to us clear enough not to merit an elaborate consideration, that by having the new road constructed for the improvement of transport facilities, the assessee acquired an enduring advantage for its business. The High Court rightly pointed out that the decision of the Calcutta High Court in Commissioner of Income-tax v. Hindusthan Motors Ltd. [1968] 68 ITR 301 (Cal) , on which the Appellate Tribunal relied, is clearly distinguishable on facts ; that was a case where the expenditure incurred was for repair of an existing road which is different from the case where a new road is laid out for the purpose of the assessees businessUnder the provisions of the U. P. Sugarcane Regulation of Supply and Purchase Act, 1953, the assessee-company was obliged to contribute certain amounts for the development of roads which were originally the property of the Government and remained so even after the improvement had been madeApart from the fact that in this case the expenditure incurred under a statutory compulsion, there was no finding that the roads were newly made. On the facts of that case this court was satisfied that the development of the roads was meant for facilitating the carrying on of the assessees business. Lakshmiji Sugar Mills case [1971] 82 ITR 376 (SC) is quite different on facts from the one before us and must be confined to the peculiar facts of that case. On the facts of the instant case, we have no doubt that the expenditure incurred by the assessee was of a capital nature. | 0 | 1,506 | 381 | ### Instruction:
Speculate on the likely judgment (yes (1) or no (0) to the appeal) and then delve into the case proceeding to elucidate your prediction, focusing on critical sentences.
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the construction of the road and, therefore, the amount contributed was capital expenditure. The High Court accordingly answered the question in the negative and against the assessee. In this appeal, brought on a certificate under section 261 of the Income-tax Act, 1961, the assessee challenges the correctness of the answer given by the High Court to the question. 2. The authorities both in this country and in England have pointed out the difficulties in formulating precise rules for distinguishing capital expenditure from revenue expenditure. The line of demarcation has been found to be very thin. Certain broad tests have, however, been laid down, and of them the test suggested by Viscount Cave L.C. in Atherton v. British Insulated and Helsby Cables Ltd. [1925] 10 TC 155 (HL) appears to have been largely accepted in this country. This court in Assam Bengal Cement Co. Ltd. v. Commissioner of Income-tax [1955] 27 ITR 34 (SC), Sitalpur Sugar Works Ltd. v. Commissioner of Income-tax [1963] 49 ITR (SC) 160 and a number of other decisions has adopted the test as laid down in Athertons case [1925] 10 TC 155, 192 (HL) : to refer again to these often quoted lines from Viscount Caves judgment :" When an expenditure is made ...... with a view to bringing into existence an asset or an advantage for the enduring benefit of a trade, I think that there is very good reason (in the absence of special circumstances leading to an opposite conclusion) for treating such an expenditure as properly attributable not to revenue but to capital ". Referring to Athertons case [1925] 10 TC 155 (HL) and certain other authorities on the distinction between capital expenditure and revenue expenditure and the tests to be applied, this court in Assam Bengal Cement Co. Ltd. v. Commissioner of Income-tax [1955] 27 ITR 34 , 45 (SC) observed" If the expenditure is made for acquiring or bringing into existence an asset or advantage for the enduring benefit of the business it is properly attributable to capital and is of the nature of capital expenditure. If on the other hand it is made not for the purpose of bringing into existence any such asset or advantage but for running the business or working it with a view to produce the profits, it is a revenue expenditure. If any such asset or advantage for the enduring benefit of the business is thus acquired or brought into existence it would be immaterial whether the source of the payment was the capital or the income of the concern or whether the payment was made once and for all or was made periodically. The aim and object of the expenditure would determine the character of the expenditure whether it is a capital expenditure or a revenue expenditure. The source or the manner of the payment would then be of no consequence. It is only in those cases where this test is of no avail that one may go to the test of fixed or circulating capital and consider whether the expenditure incurred was part of the fixed capital of the business or part of its circulating capital. If it was part of the fixed capital of the business it would be of the nature of capital expenditure and if it was part of its circulating capital it would be of the nature of revenue expenditure. " 3. In the case before us, the High Court applied Viscount Caves test and found that the expenditure made by the assessee brought into existence an advantage for the enduring benefit of the assessees trade and accordingly held that this was capital expenditure. 4. Each case turns on its own facts. It is not disputed here that the correct test has been applied. Did the money spent by the assessee on construction of the new road secured for it an enduring benefit, or was it necessary for running its business ? On the facts of the case the position seems to us clear enough not to merit an elaborate consideration, that by having the new road constructed for the improvement of transport facilities, the assessee acquired an enduring advantage for its business. The High Court rightly pointed out that the decision of the Calcutta High Court in Commissioner of Income-tax v. Hindusthan Motors Ltd. [1968] 68 ITR 301 (Cal) , on which the Appellate Tribunal relied, is clearly distinguishable on facts ; that was a case where the expenditure incurred was for repair of an existing road which is different from the case where a new road is laid out for the purpose of the assessees business. Mr. Pai, learned counsel for the appellant, has relied on the decision of this court in Lakshmiji Sugar Mills Co. Private Ltd. v. Commissioner of Income-tax [1971] 82 ITR 376 (SC) to contend that even the expenditure on the construction of roads could be revenue expenditure and not expenditure of a capital nature. In Lakshmiji Sugar Mills case. [1971] 82 ITR 376 (SC) the assessee was a private limited company carrying on the business of manufacture and sale of sugar. Under the provisions of the U. P. Sugarcane Regulation of Supply and Purchase Act, 1953, the assessee-company was obliged to contribute certain amounts for the development of roads which were originally the property of the Government and remained so even after the improvement had been madeApart from the fact that in this case the expenditure incurred under a statutory compulsion, there was no finding that the roads were newly made. On the facts of that case this court was satisfied that the development of the roads was meant for facilitating the carrying on of the assessees business. Lakshmiji Sugar Mills case [1971] 82 ITR 376 (SC) is quite different on facts from the one before us and must be confined to the peculiar facts of that case. On the facts of the instant case, we have no doubt that the expenditure incurred by the assessee was of a capital nature. 5.
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In the case before us, the High Court applied Viscount Caves test and found that the expenditure made by the assessee brought into existence an advantage for the enduring benefit of the assessees trade and accordingly held that this was capital expenditureEach case turns on its own facts. It is not disputed here that the correct test has been applied. Did the money spent by the assessee on construction of the new road secured for it an enduring benefit, or was it necessary for running its business ? On the facts of the case the position seems to us clear enough not to merit an elaborate consideration, that by having the new road constructed for the improvement of transport facilities, the assessee acquired an enduring advantage for its business. The High Court rightly pointed out that the decision of the Calcutta High Court in Commissioner of Income-tax v. Hindusthan Motors Ltd. [1968] 68 ITR 301 (Cal) , on which the Appellate Tribunal relied, is clearly distinguishable on facts ; that was a case where the expenditure incurred was for repair of an existing road which is different from the case where a new road is laid out for the purpose of the assessees businessUnder the provisions of the U. P. Sugarcane Regulation of Supply and Purchase Act, 1953, the assessee-company was obliged to contribute certain amounts for the development of roads which were originally the property of the Government and remained so even after the improvement had been madeApart from the fact that in this case the expenditure incurred under a statutory compulsion, there was no finding that the roads were newly made. On the facts of that case this court was satisfied that the development of the roads was meant for facilitating the carrying on of the assessees business. Lakshmiji Sugar Mills case [1971] 82 ITR 376 (SC) is quite different on facts from the one before us and must be confined to the peculiar facts of that case. On the facts of the instant case, we have no doubt that the expenditure incurred by the assessee was of a capital nature.
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Samarendra Nath Sinha & Anr Vs. Krishna Kumar Nag | whole and that the decree following the concluding portion of the judgment awarding costs against all the defendants was not in accord with the true intention of the court. 15. The second contention is based on the observations of Lord Herschell in Hatton v. Harris, 1892 AC 547 at p. 558 where he stated:-"that there may possibly be cases in which an application to correct an error of this description would be too late. The rights of third parties may have intervened, based upon the existence of the decree and ignorance of any circumstances which would tend to show that it was erroneous, so as to disentitle the parties to the suit or those interested in it to come at so late a period and ask for the correction to be made." It is true that the respondent purchased part of the equity of redemption from his judgment-debtor, Hazra, after the preliminary decree was passed. It is also true that that decree was not in the form of a foreclosure decree but of a mortgage decree for sale. But according to Lord Herschells observations, the intervening interest of third parties must be based on the existence of the decree and ignorance of any circumstances which would tend to show that it was erroneous. No such thing has happened and indeed it was never the case of the respondent that he purchased the interest of the said Hazra because he was aware that a preliminary decree for sale has been passed and that under that decree he would be entitled to redeem the mortgaged property or that he was ignorant of the mistake in that decree. That being the position it is difficult to see how the case of 1892 AC 547 (supra) can apply to the present case. In this view, the Trial Court had the power to correct the accidental slip which had crept in its judgment and correct that error by passing the final decree in accordance with its true intention. The final decree was passed after notice to the mortgagors and the said Hazra and after hearing them. The respondent was not made a party to that application as the appellants were never made aware of his purchase. The respondent also had not cared to be brought on record in substitution of or in addition to the said Hazra from whom he derived his interest in the equity of redemption. In our view, both the contentions raised by the respondent in this behalf must be rejected. 16. What then is the position of the respondent once it is held that the final decree for foreclosure was validly passed by the Trial Court? Could he challenge that decree in an appeal against it in the High Court on the basis that he was entitled to redeem the said mortgage? Section 91 of the Transfer of Property Act provides that besides the mortgagor any person other than the mortgagee who has any interest in or charge upon the property mortgaged or in or upon the right to redeem the same may redeem or institute a suit for redemption of such mortgaged property.An execution purchaser therefore of the whole or part of the equity of redemption has the right to redeem the mortgaged property. Such a right is based on the principle that he steps in the shoes of his predecessor-in-title and has therefore the same rights which his predecessor-in-title had before the purchase. Under Section 59-A of the Act also all persons who derive title from the mortgagor are included in the term "mortgagor" and therefore entitled to redeem. But under Section 52 which incorporates the doctrine of lis pendens, during the pendency of a suit in which any right to an immovable property is directly and specifically in question such a property cannot be transferred or otherwise dealt with by any party to the suit or proceeding so as to affect the rights of any other party thereto under any decree or order which may be made therein except under the authority of the court and on such terms as it may impose. Under the Explanation to that section the pendency of such a suit commences from the date of its institution and continues until it is disposed of by a final decree or order and complete satisfaction or discharge of such a decree or order has been obtained. The purchaser pendente lite under this doctrine is bound by the result of the litigation on the principle that since the result must bind the party to it so must it bind the person deriving his right, title and interest from or through him. This principle is well illustrated in Radhamadhub Holdar v. Monohur, (1888) 15 Ind App. 97 (PC)where the facts were almost similar to those in the instant case. It is true that Section 52 strictly speaking does not apply to involuntary alienations such as court sales but it is well established that the principle of lis pendens applies to such alienations.(See Nilkant v. Suresh Chandra, (1885) 12 Ind App 171 (PC) and Motilal v. Karrabuldin, (1897) 24 Ind App 170 (PC). It follows that the respondent having purchased from the said Hazra while the appeal by the said Hazra against the said preliminary decree was pending in the High Court, the doctrine of lis pendens must imply to his purchase and as aforesaid he was bound by the result of that suit. In the view we have taken that the final foreclosure decree was competently passed by the Trial Court, his right to equity of redemption was extinguished by that decree and he had therefore no longer any right to redeem the said mortgage. His appeal against the said final decree was misconceived and the High Court was in error in allowing it and in passing the said order of remand directing the Trial Court to reopen the questions of redemption and to allow the respondent to participate in proceedings to amend the said preliminary decree. | 1[ds]7. It is manifest that the High Courts judgment meant that the respondent had sufficient interest to maintain the said appeal and participate in the proceedings before the Trial Court on the said remand for considering the question whether the said preliminary decree should be altered or not and if not whether the respondent had still the right to redeem the said mortgage, though the time for payment fixed under the said preliminary decree had expired, that is, six months from December 23, 1946, long before the respondent became a purchaser of part of the said equity of redemption on February 15, 1951. There is no dispute that the valuation test for a certificate is satisfied in the present case. The judgment and decree passed by the High Court is also not one of affirmance as the High Court set aside the said finally decree. There can be no dispute also that the question whether the appellant who was the auction-purchaser pendente lite had the locus standi to maintain the appeal was finally decided and he was given liberty to participate in the proceedings for correcting the preliminary decree and was enabled thereby to contend that he was still entitled to redeem the said mortgage and retain possession of the mortgaged property. The Trial Court was bound to allow him to participate in those proceedings as the High Courts judgment specifically directed it do deal with the case in accordance with the directions contained in the said judgment. The judgment and decree of the High Court thus, besides settings aside the said final decree meant that the respondent had still sufficient interest entitling him to challenge the appellants claim to have a final foreclosure decree and to maintain that the question of redemption was still open and he had the right to redeem the mortgaged propertyThe High Court has given its judgment and in pursuance thereof passed a decree setting aside the said final decree. If the High Court had held that the respondent in the circumstances of the case had no right to maintain his appeal, the final decree would have become a concluded decree and his right of redemption, if any, would have been totally extinguished. It is true that the High Court remitted the case to the trial Court but it was obviously not an order of remand simpliciter. The decision of the High Court was not on a preliminary issue leaving undecided other issues to be tried by the Trial Court. It will be observed that the respondent was not a party to the suit he could not be because when the preliminary decree was passed he was not on the scene. Though he became an auction-purchaser while the appeal against the preliminary decree was pending, he did not apply for being brought on record. The appellants on their predecessor-in-title would not aware of his purchase and therefore could not implead in the suit or in the appeal. The respondent filed his appeal against the said final decree and two questions arose in that appeal: (1) whether being a purchaser pendente lite he had locus standi to file an appeal and challenge the final decree and (2) whether the Trial Court had jurisdiction to pass the final decree which was not in conformity with the preliminary decree. The judgment of the High Court is unfortunately laconic and one wishes that the learned Judges had taken us a little more into confidence by giving some reasons at least. Nonetheless, it is clear that they decided both the questions by holding that the respondent had still sufficient interest in the matter and therefore had locus standi and by setting aside the final decree and directing the Trial Court to decide the question as to whether it could correct the said preliminary decree in accordance with the directions given by them they held that the respondent was entitled to participate in those proceedings and plead that the final decree should be one for sale and consequently he was entitled to redeem the said mortgage. There can be no question that the two questions raised in the appeal before the High Court were disposed of finally inasmuch as the said final decree was set aside as not being valid and binding on the respondent and the question of redemption by him which was extinguished by that final decree was reopened entitling the respondent to contend that he had the right to redeem and to hold the said property. In these circumstances, the preliminary objection raised by Mr. Chatterjee cannot be sustained and the certificate must be held to be competent14. No one can quarrel with these propositions. But considering the nature of the mortgage, the cause of action and the prayers in the suit, the absence of any contest as regards that cause of action and the prayers, and the tenor of the judgment until it came to its penultimate part, there can be no doubt that the intention of the Trial Court was to pass a preliminary decree for foreclosure as prayed for and that was what the court had decided. It was therefore through an accidental slip that in that final part of the judgment the Subordinate Judge used the phraseology used in a preliminary decree for sale. Therefore, there is no question of a wrong judgment having been passed by the Judge or the preliminary decree correctly representing that which was wrongly decided by the Judge. If that had been so, neither the judgment not the decree could be corrected and the obvious remedy would be by way of an appealIt is true that the respondent purchased part of the equity of redemption from his judgment-debtor, Hazra, after the preliminary decree was passed. It is also true that that decree was not in the form of a foreclosure decree but of a mortgage decree for sale. But according to Lord Herschells observations, the intervening interest of third parties must be based on the existence of the decree and ignorance of any circumstances which would tend to show that it was erroneous. No such thing has happened and indeed it was never the case of the respondent that he purchased the interest of the said Hazra because he was aware that a preliminary decree for sale has been passed and that under that decree he would be entitled to redeem the mortgaged property or that he was ignorant of the mistake in that decree. That being the position it is difficult to see how the case of 1892 AC 547 (supra) can apply to the present case. In this view, the Trial Court had the power to correct the accidental slip which had crept in its judgment and correct that error by passing the final decree in accordance with its true intention. The final decree was passed after notice to the mortgagors and the said Hazra and after hearing them. The respondent was not made a party to that application as the appellants were never made aware of his purchase. The respondent also had not cared to be brought on record in substitution of or in addition to the said Hazra from whom he derived his interest in the equity of redemption. In our view, both the contentions raised by the respondent in this behalf must be rejected16. What then is the position of the respondent once it is held that the final decree for foreclosure was validly passed by the Trial Court? Could he challenge that decree in an appeal against it in the High Court on the basis that he was entitled to redeem the said mortgage? Section 91 of the Transfer of Property Act provides that besides the mortgagor any person other than the mortgagee who has any interest in or charge upon the property mortgaged or in or upon the right to redeem the same may redeem or institute a suit for redemption of such mortgaged property.An execution purchaser therefore of the whole or part of the equity of redemption has the right to redeem the mortgaged property. Such a right is based on the principle that he steps in the shoes of his predecessor-in-title and has therefore the same rights which his predecessor-in-title had before the purchase. Under Section 59-A of the Act also all persons who derive title from the mortgagor are included in the term "mortgagor" and therefore entitled to redeem. But under Section 52 which incorporates the doctrine of lis pendens, during the pendency of a suit in which any right to an immovable property is directly and specifically in question such a property cannot be transferred or otherwise dealt with by any party to the suit or proceeding so as to affect the rights of any other party thereto under any decree or order which may be made therein except under the authority of the court and on such terms as it may impose. Under the Explanation to that section the pendency of such a suit commences from the date of its institution and continues until it is disposed of by a final decree or order and complete satisfaction or discharge of such a decree or order has been obtained. The purchaser pendente lite under this doctrine is bound by the result of the litigation on the principle that since the result must bind the party to it so must it bind the person deriving his right, title and interest from or through him. This principle is well illustrated in Radhamadhub Holdar v. Monohur, (1888) 15 Ind App. 97 (PC)where the facts were almost similar to those in the instant case. It is true that Section 52 strictly speaking does not apply to involuntary alienations such as court sales but it is well established that the principle of lis pendens applies to such alienations.(See Nilkant v. Suresh Chandra, (1885) 12 Ind App 171 (PC) and Motilal v. Karrabuldin, (1897) 24 Ind App 170 (PC). It follows that the respondent having purchased from the said Hazra while the appeal by the said Hazra against the said preliminary decree was pending in the High Court, the doctrine of lis pendens must imply to his purchase and as aforesaid he was bound by the result of that suit. In the view we have taken that the final foreclosure decree was competently passed by the Trial Court, his right to equity of redemption was extinguished by that decree and he had therefore no longer any right to redeem the said mortgage. His appeal against the said final decree was misconceived and the High Court was in error in allowing it and in passing the said order of remand directing the Trial Court to reopen the questions of redemption and to allow the respondent to participate in proceedings to amend the said preliminary decree9. In our opinion, these decisions cannot help Mr. Chatterjee as the position here is not the same as in those two decisions11. Now, it is well settled that there is an inherent power in the court which passed the judgment to correct a clerical mistake or an error arising from an accidental slip or omission and to vary its judgment so as to give effect to its meaning and intention12. As already pointed out, the mortgage in question was one by conditional sale empowering the mortgagee to take possession of the mortgage security if the monies due thereunder were not paid by the due date. The suit filed by the mortgagee was also for a foreclosure decree. The tenor of the judgment of the Trial Court shows that the court meant to pass such a foreclosure decree especially as the plaint contained no prayer for a decree for sale or for a personal decree against the mortgagors or the said Hazra, if the sale proceeds were found insufficient. The written statements of the defendants did not raise any contention against the mortgagees right for a foreclosure decree, their defence being only that they were entitled to pay the mortgage amount by instalments. There can therefore be little doubt that the court had no occasion to pass a preliminary decree for sale and that it was through an accidental slip or inadvertence that in the penultimate part of its judgment the court used the phraseology proper in a mortgage decree for sale. Once this error had crept in the judgment it was repeatedly in the preliminary decree and their error was not even noticed by the High Court when it dismissed Hazras appeal and confirmed that decree. The error was later on noticed by the appellants as is seen from the order passed by the Trial Court dismissing the respondents application under Section 151 for setting aside the final decree. That order states that the Subordinate Judge who tried the suit through oversight passed a preliminary decree for sale overlooking the fact that it was a suit for foreclosure and possession, that it was also apparent that this mistake of the Trial Court went unnoticed in the High Court which confirmed the decree of the Trial Court and:"therefore, this court, when it passed the final decree being apprised of the apparent mistake in the form of the preliminary decree, corrected the initial mistake and did justice by passing a final decree for foreclosure and for possession which was the only scope of this suit"."This being the position the Trial Court had the power under Section 151 and Section 152 to correct its own error which had crept in the judgment and the preliminary decree and pass a proper final decree for foreclosure as intended by it. | 1 | 4,999 | 2,400 | ### Instruction:
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whole and that the decree following the concluding portion of the judgment awarding costs against all the defendants was not in accord with the true intention of the court. 15. The second contention is based on the observations of Lord Herschell in Hatton v. Harris, 1892 AC 547 at p. 558 where he stated:-"that there may possibly be cases in which an application to correct an error of this description would be too late. The rights of third parties may have intervened, based upon the existence of the decree and ignorance of any circumstances which would tend to show that it was erroneous, so as to disentitle the parties to the suit or those interested in it to come at so late a period and ask for the correction to be made." It is true that the respondent purchased part of the equity of redemption from his judgment-debtor, Hazra, after the preliminary decree was passed. It is also true that that decree was not in the form of a foreclosure decree but of a mortgage decree for sale. But according to Lord Herschells observations, the intervening interest of third parties must be based on the existence of the decree and ignorance of any circumstances which would tend to show that it was erroneous. No such thing has happened and indeed it was never the case of the respondent that he purchased the interest of the said Hazra because he was aware that a preliminary decree for sale has been passed and that under that decree he would be entitled to redeem the mortgaged property or that he was ignorant of the mistake in that decree. That being the position it is difficult to see how the case of 1892 AC 547 (supra) can apply to the present case. In this view, the Trial Court had the power to correct the accidental slip which had crept in its judgment and correct that error by passing the final decree in accordance with its true intention. The final decree was passed after notice to the mortgagors and the said Hazra and after hearing them. The respondent was not made a party to that application as the appellants were never made aware of his purchase. The respondent also had not cared to be brought on record in substitution of or in addition to the said Hazra from whom he derived his interest in the equity of redemption. In our view, both the contentions raised by the respondent in this behalf must be rejected. 16. What then is the position of the respondent once it is held that the final decree for foreclosure was validly passed by the Trial Court? Could he challenge that decree in an appeal against it in the High Court on the basis that he was entitled to redeem the said mortgage? Section 91 of the Transfer of Property Act provides that besides the mortgagor any person other than the mortgagee who has any interest in or charge upon the property mortgaged or in or upon the right to redeem the same may redeem or institute a suit for redemption of such mortgaged property.An execution purchaser therefore of the whole or part of the equity of redemption has the right to redeem the mortgaged property. Such a right is based on the principle that he steps in the shoes of his predecessor-in-title and has therefore the same rights which his predecessor-in-title had before the purchase. Under Section 59-A of the Act also all persons who derive title from the mortgagor are included in the term "mortgagor" and therefore entitled to redeem. But under Section 52 which incorporates the doctrine of lis pendens, during the pendency of a suit in which any right to an immovable property is directly and specifically in question such a property cannot be transferred or otherwise dealt with by any party to the suit or proceeding so as to affect the rights of any other party thereto under any decree or order which may be made therein except under the authority of the court and on such terms as it may impose. Under the Explanation to that section the pendency of such a suit commences from the date of its institution and continues until it is disposed of by a final decree or order and complete satisfaction or discharge of such a decree or order has been obtained. The purchaser pendente lite under this doctrine is bound by the result of the litigation on the principle that since the result must bind the party to it so must it bind the person deriving his right, title and interest from or through him. This principle is well illustrated in Radhamadhub Holdar v. Monohur, (1888) 15 Ind App. 97 (PC)where the facts were almost similar to those in the instant case. It is true that Section 52 strictly speaking does not apply to involuntary alienations such as court sales but it is well established that the principle of lis pendens applies to such alienations.(See Nilkant v. Suresh Chandra, (1885) 12 Ind App 171 (PC) and Motilal v. Karrabuldin, (1897) 24 Ind App 170 (PC). It follows that the respondent having purchased from the said Hazra while the appeal by the said Hazra against the said preliminary decree was pending in the High Court, the doctrine of lis pendens must imply to his purchase and as aforesaid he was bound by the result of that suit. In the view we have taken that the final foreclosure decree was competently passed by the Trial Court, his right to equity of redemption was extinguished by that decree and he had therefore no longer any right to redeem the said mortgage. His appeal against the said final decree was misconceived and the High Court was in error in allowing it and in passing the said order of remand directing the Trial Court to reopen the questions of redemption and to allow the respondent to participate in proceedings to amend the said preliminary decree.
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entitled to redeem the said mortgage? Section 91 of the Transfer of Property Act provides that besides the mortgagor any person other than the mortgagee who has any interest in or charge upon the property mortgaged or in or upon the right to redeem the same may redeem or institute a suit for redemption of such mortgaged property.An execution purchaser therefore of the whole or part of the equity of redemption has the right to redeem the mortgaged property. Such a right is based on the principle that he steps in the shoes of his predecessor-in-title and has therefore the same rights which his predecessor-in-title had before the purchase. Under Section 59-A of the Act also all persons who derive title from the mortgagor are included in the term "mortgagor" and therefore entitled to redeem. But under Section 52 which incorporates the doctrine of lis pendens, during the pendency of a suit in which any right to an immovable property is directly and specifically in question such a property cannot be transferred or otherwise dealt with by any party to the suit or proceeding so as to affect the rights of any other party thereto under any decree or order which may be made therein except under the authority of the court and on such terms as it may impose. Under the Explanation to that section the pendency of such a suit commences from the date of its institution and continues until it is disposed of by a final decree or order and complete satisfaction or discharge of such a decree or order has been obtained. The purchaser pendente lite under this doctrine is bound by the result of the litigation on the principle that since the result must bind the party to it so must it bind the person deriving his right, title and interest from or through him. This principle is well illustrated in Radhamadhub Holdar v. Monohur, (1888) 15 Ind App. 97 (PC)where the facts were almost similar to those in the instant case. It is true that Section 52 strictly speaking does not apply to involuntary alienations such as court sales but it is well established that the principle of lis pendens applies to such alienations.(See Nilkant v. Suresh Chandra, (1885) 12 Ind App 171 (PC) and Motilal v. Karrabuldin, (1897) 24 Ind App 170 (PC). It follows that the respondent having purchased from the said Hazra while the appeal by the said Hazra against the said preliminary decree was pending in the High Court, the doctrine of lis pendens must imply to his purchase and as aforesaid he was bound by the result of that suit. In the view we have taken that the final foreclosure decree was competently passed by the Trial Court, his right to equity of redemption was extinguished by that decree and he had therefore no longer any right to redeem the said mortgage. His appeal against the said final decree was misconceived and the High Court was in error in allowing it and in passing the said order of remand directing the Trial Court to reopen the questions of redemption and to allow the respondent to participate in proceedings to amend the said preliminary decree9. In our opinion, these decisions cannot help Mr. Chatterjee as the position here is not the same as in those two decisions11. Now, it is well settled that there is an inherent power in the court which passed the judgment to correct a clerical mistake or an error arising from an accidental slip or omission and to vary its judgment so as to give effect to its meaning and intention12. As already pointed out, the mortgage in question was one by conditional sale empowering the mortgagee to take possession of the mortgage security if the monies due thereunder were not paid by the due date. The suit filed by the mortgagee was also for a foreclosure decree. The tenor of the judgment of the Trial Court shows that the court meant to pass such a foreclosure decree especially as the plaint contained no prayer for a decree for sale or for a personal decree against the mortgagors or the said Hazra, if the sale proceeds were found insufficient. The written statements of the defendants did not raise any contention against the mortgagees right for a foreclosure decree, their defence being only that they were entitled to pay the mortgage amount by instalments. There can therefore be little doubt that the court had no occasion to pass a preliminary decree for sale and that it was through an accidental slip or inadvertence that in the penultimate part of its judgment the court used the phraseology proper in a mortgage decree for sale. Once this error had crept in the judgment it was repeatedly in the preliminary decree and their error was not even noticed by the High Court when it dismissed Hazras appeal and confirmed that decree. The error was later on noticed by the appellants as is seen from the order passed by the Trial Court dismissing the respondents application under Section 151 for setting aside the final decree. That order states that the Subordinate Judge who tried the suit through oversight passed a preliminary decree for sale overlooking the fact that it was a suit for foreclosure and possession, that it was also apparent that this mistake of the Trial Court went unnoticed in the High Court which confirmed the decree of the Trial Court and:"therefore, this court, when it passed the final decree being apprised of the apparent mistake in the form of the preliminary decree, corrected the initial mistake and did justice by passing a final decree for foreclosure and for possession which was the only scope of this suit"."This being the position the Trial Court had the power under Section 151 and Section 152 to correct its own error which had crept in the judgment and the preliminary decree and pass a proper final decree for foreclosure as intended by it.
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Bhawanji Lakhamhi & Ors Vs. Himatlal Jamnadas Dani & Ors | landlord of his former power of eviction, no such inference can properly be drawn. That is the very obvious and cogent basis of the decision in 1920-3 KB 428".11. It was argued on behalf of the appellants, on the basis of the decision of this Court in Manujendra Dutt v. Purnendu Prosad Roy Chowdhury, (1967) 1 SCR 475 = (AIR 1967 SC 1419 ) that if in the case of a tenancy to which Rent Restriction Acts applied, the provisions of Section 106 of the Transfer of Property Act was applicable, there is nothing incongruous in making Section 116 also applicable in the case of statutory tenancy. In the said decision the appellant before this Court was a tenant of a piece of land. The lease was for a period of ten years but the lessee was given the option of renewal on his fulfilling certain conditions. The lease deed also provided that if the lessor required the lessee to vacate the premises, whether at the time of the expiry of the lease or thereafter (in case the lessee exercised his option to renew the lesse) six months notice to the lessee was necessary. The lessee exercised his option to renew the lease and offered to fulfil the condition therefor. In the meanwhile the Calcutta Thika Tenancy Act, 1949, was passed. One of the questions which arose for consideration was whether the Thika tenant was entitled to the notice provided under the lease. This Court held that the Act did not give a right to the landlord to evict a contractual tenant without first determining the contractual tenancy. After referring to the decision of this Court in Mangilal v. Sugan Chand, AIR 1965 SC 101 it was held that Section 3 of the Act in question was similar to Section 4 of the Madhya Pradesh Accommodation Control Act (XXIII of 1965). It was further held that on the construction placed upon the section, namely, that the provisions of the section are in addition to those of the Transfer of Property Act, it follows that, before a tenant can be evicted, a landlord must comply with both the provisions of Section 106 of the Transfer of Property Act and those of Section 3. In the case before us, admittedly, the tenancy has been determined by efflux of time and what is contended for is that by the acceptance of rent, a new tenancy has been created by virtue of the provisions of Section 116 of the Transfer of Property Act. In other words, the question here is whether the conditions for the application of Section 116 of the Transfer of Property Act are fulfilled.12. Learned counsel for the appellants argued that whenever rent is accepted by a landlord from a tenant whose tenancy has been determined, but who continues in possession, a tenancy by holding over is created. The argument was that the assent of the lessor alone and not that of the lessee was material for the purposes of Sec. 116. We are not inclined to accept this contention. We have already shown that the basis of the section is a bilateral contract between the erstwhile landlord and the erstwhile tenant, if the tenant has the statutory right to remain in possession, and if he pays the rent, that will not normally be referable to an offer for his continuing in possession which can be converted into a contract by acceptance thereof by the landlord. We do not say that the operation of Section 116 is always excluded whatever might be the circumstances under which the tenant pays the rent and the landlord accepts it. We have earlier referred to the observations of this Court in AIR 1961 SC 1067 regarding some of the circumstances in which a fresh contract of tenancy may be inferred. We have already held the whole basis of Section 116 of the Transfer of Property Act is that, in case of normal tenancy, a landlord is entitled, where he does not accept the rent after the notice to quit, to file a suit in ejectment and obtain a decree for possession, and so his acceptance of rent is an unequivocal act referable only to his desire to assent to the tenant continuing in possession. That is not so where Rent Act exists; and if the tenant says that landlord accepted the rent not as statutory tenant but only as legal rent indicating his assent to the tenants continuing in possession, it is for the tenant to establish it. No attempt has been made to establish it in this case and there is no evidence, apart from the acceptance of the rent by the landlord, to indicate even remotely that he desired the appellants to continue in possession after the termination of the tenancy.Besides, as we have already indicated the animus of the tenant in tendering the rent is also material. If he tenders the rent as the rent payable under the statutory tenancy, the landlord cannot, by accepting it as rent, create a tenancy by holding over. In such a case the parties would not be id idem and there will be no consensus. The decision in AIR 1961 SC 1067 which followed the principles laid down by the Federal Court in 1949 FCR 262 = (AIR 1949 FC 124) is correct and does not require re-consideration.13. We, therefore come to the conclusion that there was no holding over by the appellants and if that be so, the question whether the tenancy created by holding over was for manufacturing purpose and therefore the landlord was bound to give six months notice for the determination of the tenancy by holding over does not arise for consideration.14. Appellants counsel prayed that the appellants may be given some time for vacating the premises. This Court, when passing the order on July 31, 1969, on the application for stay by the appellants had observed:"Petitioner undertakes to vacate the premises within such time as may be fixed by this Court". | 1[ds]9. The act of holding over after the expiration of the term does not create a tenancy of any kind. If a tenant remains in possession after the determination of the lease, the common law rule is that he is a tenant on sufferance.A distinction should be drawn between a tenant continuing in possession after the determination of the term with the consent of the landlord and a tenant doing so without his consent. The former is a tenant at sufferance in English Law and the latter a tenant holding over or a tenant at will. In view of the concluding words of Section 116 of the Transfer of Property Act, a lessee holding over is in a better position than a tenant at will. The assent of the landlord to the continuance of possession after the determination of the tenancy will create a new tenancy. What the section contemplated is that on one side there should be an offer of taking a new lease evidenced by the lessee or sub-lessee remaining in possession of the peoperty after his term was over and on the other side there must be a definite consent to the continuance of possession by the landlord expressed by acceptance of rent orthe said decision the appellant before this Court was a tenant of a piece of land. The lease was for a period of ten years but the lessee was given the option of renewal on his fulfilling certain conditions. The lease deed also provided that if the lessor required the lessee to vacate the premises, whether at the time of the expiry of the lease or thereafter (in case the lessee exercised his option to renew the lesse) six months notice to the lessee was necessary. The lessee exercised his option to renew the lease and offered to fulfil the condition therefor. In the meanwhilethe Calcutta Thika Tenancy Act, 1949, was passed. One of the questions which arose for consideration was whether the Thika tenant was entitled to the notice provided under the lease. This Court held that the Act did not give a right to the landlord to evict a contractual tenant without first determining the contractual tenancy. After referring to the decision of this Court in Mangilal v. Sugan Chand, AIR 1965 SC 101 it was held that Section 3 of the Act in question was similar to Section 4 of the Madhya Pradesh Accommodation Control Act (XXIII of 1965). It was further held that on the construction placed upon the section, namely, that the provisions of the section are in addition to those of the Transfer of Property Act, it follows that, before a tenant can be evicted, a landlord must comply with both the provisions of Section 106 of the Transfer of Property Act and those of Section 3. In the case before us, admittedly, the tenancy has been determined by efflux of time and what is contended for is that by the acceptance of rent, a new tenancy has been created by virtue of the provisions of Section 116 of the Transfer of Property Act. In other words, the question here is whether the conditions for the application of Section 116 of the Transfer of Property Act areare not inclined to accept this contention. We have already shown that the basis of the section is a bilateral contract between the erstwhile landlord and the erstwhile tenant, if the tenant has the statutory right to remain in possession, and if he pays the rent, that will not normally be referable to an offer for his continuing in possession which can be converted into a contract by acceptance thereof by the landlord. We do not say that the operation of Section 116 is always excluded whatever might be the circumstances under which the tenant pays the rent and the landlord accepts it. We have earlier referred to the observations of this Court in AIR 1961 SC 1067 regarding some of the circumstances in which a fresh contract of tenancy may be inferred. We have already held the whole basis of Section 116 of the Transfer of Property Act is that, in case of normal tenancy, a landlord is entitled, where he does not accept the rent after the notice to quit, to file a suit in ejectment and obtain a decree for possession, and so his acceptance of rent is an unequivocal act referable only to his desire to assent to the tenant continuing in possession. That is not so where Rent Act exists; and if the tenant says that landlord accepted the rent not as statutory tenant but only as legal rent indicating his assent to the tenants continuing in possession, it is for the tenant to establish it. No attempt has been made to establish it in this case and there is no evidence, apart from the acceptance of the rent by the landlord, to indicate even remotely that he desired the appellants to continue in possession after the termination of the tenancy.Besides, as we have already indicated the animus of the tenant in tendering the rent is also material. If he tenders the rent as the rent payable under the statutory tenancy, the landlord cannot, by accepting it as rent, create a tenancy by holding over. In such a case the parties would not be id idem and there will be no consensus. The decision in AIR 1961 SC 1067 which followed the principles laid down by the Federal Court in 1949 FCR 262 = (AIR 1949 FC 124) is correct and does not require re-consideration.13. We, therefore come to the conclusion that there was no holding over by the appellants and if that be so, the question whether the tenancy created by holding over was for manufacturing purpose and therefore the landlord was bound to give six months notice for the determination of the tenancy by holding over does not arise for consideration. | 1 | 3,692 | 1,057 | ### Instruction:
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landlord of his former power of eviction, no such inference can properly be drawn. That is the very obvious and cogent basis of the decision in 1920-3 KB 428".11. It was argued on behalf of the appellants, on the basis of the decision of this Court in Manujendra Dutt v. Purnendu Prosad Roy Chowdhury, (1967) 1 SCR 475 = (AIR 1967 SC 1419 ) that if in the case of a tenancy to which Rent Restriction Acts applied, the provisions of Section 106 of the Transfer of Property Act was applicable, there is nothing incongruous in making Section 116 also applicable in the case of statutory tenancy. In the said decision the appellant before this Court was a tenant of a piece of land. The lease was for a period of ten years but the lessee was given the option of renewal on his fulfilling certain conditions. The lease deed also provided that if the lessor required the lessee to vacate the premises, whether at the time of the expiry of the lease or thereafter (in case the lessee exercised his option to renew the lesse) six months notice to the lessee was necessary. The lessee exercised his option to renew the lease and offered to fulfil the condition therefor. In the meanwhile the Calcutta Thika Tenancy Act, 1949, was passed. One of the questions which arose for consideration was whether the Thika tenant was entitled to the notice provided under the lease. This Court held that the Act did not give a right to the landlord to evict a contractual tenant without first determining the contractual tenancy. After referring to the decision of this Court in Mangilal v. Sugan Chand, AIR 1965 SC 101 it was held that Section 3 of the Act in question was similar to Section 4 of the Madhya Pradesh Accommodation Control Act (XXIII of 1965). It was further held that on the construction placed upon the section, namely, that the provisions of the section are in addition to those of the Transfer of Property Act, it follows that, before a tenant can be evicted, a landlord must comply with both the provisions of Section 106 of the Transfer of Property Act and those of Section 3. In the case before us, admittedly, the tenancy has been determined by efflux of time and what is contended for is that by the acceptance of rent, a new tenancy has been created by virtue of the provisions of Section 116 of the Transfer of Property Act. In other words, the question here is whether the conditions for the application of Section 116 of the Transfer of Property Act are fulfilled.12. Learned counsel for the appellants argued that whenever rent is accepted by a landlord from a tenant whose tenancy has been determined, but who continues in possession, a tenancy by holding over is created. The argument was that the assent of the lessor alone and not that of the lessee was material for the purposes of Sec. 116. We are not inclined to accept this contention. We have already shown that the basis of the section is a bilateral contract between the erstwhile landlord and the erstwhile tenant, if the tenant has the statutory right to remain in possession, and if he pays the rent, that will not normally be referable to an offer for his continuing in possession which can be converted into a contract by acceptance thereof by the landlord. We do not say that the operation of Section 116 is always excluded whatever might be the circumstances under which the tenant pays the rent and the landlord accepts it. We have earlier referred to the observations of this Court in AIR 1961 SC 1067 regarding some of the circumstances in which a fresh contract of tenancy may be inferred. We have already held the whole basis of Section 116 of the Transfer of Property Act is that, in case of normal tenancy, a landlord is entitled, where he does not accept the rent after the notice to quit, to file a suit in ejectment and obtain a decree for possession, and so his acceptance of rent is an unequivocal act referable only to his desire to assent to the tenant continuing in possession. That is not so where Rent Act exists; and if the tenant says that landlord accepted the rent not as statutory tenant but only as legal rent indicating his assent to the tenants continuing in possession, it is for the tenant to establish it. No attempt has been made to establish it in this case and there is no evidence, apart from the acceptance of the rent by the landlord, to indicate even remotely that he desired the appellants to continue in possession after the termination of the tenancy.Besides, as we have already indicated the animus of the tenant in tendering the rent is also material. If he tenders the rent as the rent payable under the statutory tenancy, the landlord cannot, by accepting it as rent, create a tenancy by holding over. In such a case the parties would not be id idem and there will be no consensus. The decision in AIR 1961 SC 1067 which followed the principles laid down by the Federal Court in 1949 FCR 262 = (AIR 1949 FC 124) is correct and does not require re-consideration.13. We, therefore come to the conclusion that there was no holding over by the appellants and if that be so, the question whether the tenancy created by holding over was for manufacturing purpose and therefore the landlord was bound to give six months notice for the determination of the tenancy by holding over does not arise for consideration.14. Appellants counsel prayed that the appellants may be given some time for vacating the premises. This Court, when passing the order on July 31, 1969, on the application for stay by the appellants had observed:"Petitioner undertakes to vacate the premises within such time as may be fixed by this Court".
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9. The act of holding over after the expiration of the term does not create a tenancy of any kind. If a tenant remains in possession after the determination of the lease, the common law rule is that he is a tenant on sufferance.A distinction should be drawn between a tenant continuing in possession after the determination of the term with the consent of the landlord and a tenant doing so without his consent. The former is a tenant at sufferance in English Law and the latter a tenant holding over or a tenant at will. In view of the concluding words of Section 116 of the Transfer of Property Act, a lessee holding over is in a better position than a tenant at will. The assent of the landlord to the continuance of possession after the determination of the tenancy will create a new tenancy. What the section contemplated is that on one side there should be an offer of taking a new lease evidenced by the lessee or sub-lessee remaining in possession of the peoperty after his term was over and on the other side there must be a definite consent to the continuance of possession by the landlord expressed by acceptance of rent orthe said decision the appellant before this Court was a tenant of a piece of land. The lease was for a period of ten years but the lessee was given the option of renewal on his fulfilling certain conditions. The lease deed also provided that if the lessor required the lessee to vacate the premises, whether at the time of the expiry of the lease or thereafter (in case the lessee exercised his option to renew the lesse) six months notice to the lessee was necessary. The lessee exercised his option to renew the lease and offered to fulfil the condition therefor. In the meanwhilethe Calcutta Thika Tenancy Act, 1949, was passed. One of the questions which arose for consideration was whether the Thika tenant was entitled to the notice provided under the lease. This Court held that the Act did not give a right to the landlord to evict a contractual tenant without first determining the contractual tenancy. After referring to the decision of this Court in Mangilal v. Sugan Chand, AIR 1965 SC 101 it was held that Section 3 of the Act in question was similar to Section 4 of the Madhya Pradesh Accommodation Control Act (XXIII of 1965). It was further held that on the construction placed upon the section, namely, that the provisions of the section are in addition to those of the Transfer of Property Act, it follows that, before a tenant can be evicted, a landlord must comply with both the provisions of Section 106 of the Transfer of Property Act and those of Section 3. In the case before us, admittedly, the tenancy has been determined by efflux of time and what is contended for is that by the acceptance of rent, a new tenancy has been created by virtue of the provisions of Section 116 of the Transfer of Property Act. In other words, the question here is whether the conditions for the application of Section 116 of the Transfer of Property Act areare not inclined to accept this contention. We have already shown that the basis of the section is a bilateral contract between the erstwhile landlord and the erstwhile tenant, if the tenant has the statutory right to remain in possession, and if he pays the rent, that will not normally be referable to an offer for his continuing in possession which can be converted into a contract by acceptance thereof by the landlord. We do not say that the operation of Section 116 is always excluded whatever might be the circumstances under which the tenant pays the rent and the landlord accepts it. We have earlier referred to the observations of this Court in AIR 1961 SC 1067 regarding some of the circumstances in which a fresh contract of tenancy may be inferred. We have already held the whole basis of Section 116 of the Transfer of Property Act is that, in case of normal tenancy, a landlord is entitled, where he does not accept the rent after the notice to quit, to file a suit in ejectment and obtain a decree for possession, and so his acceptance of rent is an unequivocal act referable only to his desire to assent to the tenant continuing in possession. That is not so where Rent Act exists; and if the tenant says that landlord accepted the rent not as statutory tenant but only as legal rent indicating his assent to the tenants continuing in possession, it is for the tenant to establish it. No attempt has been made to establish it in this case and there is no evidence, apart from the acceptance of the rent by the landlord, to indicate even remotely that he desired the appellants to continue in possession after the termination of the tenancy.Besides, as we have already indicated the animus of the tenant in tendering the rent is also material. If he tenders the rent as the rent payable under the statutory tenancy, the landlord cannot, by accepting it as rent, create a tenancy by holding over. In such a case the parties would not be id idem and there will be no consensus. The decision in AIR 1961 SC 1067 which followed the principles laid down by the Federal Court in 1949 FCR 262 = (AIR 1949 FC 124) is correct and does not require re-consideration.13. We, therefore come to the conclusion that there was no holding over by the appellants and if that be so, the question whether the tenancy created by holding over was for manufacturing purpose and therefore the landlord was bound to give six months notice for the determination of the tenancy by holding over does not arise for consideration.
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State Of Madras Vs. G. Sundaram | provided for the enquiry by the Tribunal and the subsequent proceedings differs from similar procedure under the Rules in a way which is prejudicial to the interests of the Police Officer. We need not elaborately deal with these contentions as this Court had to deal with substantially the same contentions in Jagannath Prasad Sharma v. State of Uttar Pradesh, (1962) 1 SCR 151 : (AIR 1961 SC 1245 ). That case related to a Police Officer in Uttar Pradesh. The contentions raised were that the order dismissing him was unauthorized because the Governor had no power under S. 7 of the Police Act V of 1861 and the regulations framed thereunder to pass the order and further, even if the Governor could dismiss the Police Officer, a mode of enquiry prejudicial to the appellant in that case had been adopted out of two alternative modes of enquiry and, therefore, the proceedings of the Tribunal which enquired into the charges against him were void on account of the equal protection clause of the Constitution. It may be mentioned that the appellant in that case was a Deputy Superintendent of Police and the Act applicable to him was the Police Act of 1861. Section 7 of that Act is practically identical with S.10 of the Madras Act. The rule making power under both the Acts is with the State Government. The rules made by the Uttar Pradesh Government, are known as the Police Regulations. The U. P. Government made the Administrative Tribunal Rules in the exercise of powers conferred inter alia by S. 7 of the 1861 Act just as the Madras Tribunal Rules were framed by the Governor of Madras in the exercise of powers conferred by S. 211 of the Government of India Act, 1935 and of all other powers enabling the Governor to make rules. Such powers include the powers under S.10 of the Police Act. In Jagannath Prasads case. (1962) 1 SCR 151 : (AIR 1961 SC 1245 ), it was said at p. 159 : (at p. 1250 of AIR) : By virtue of Art. 313, the Police Regulations as well as the Tribunal Rules in so far as they were not inconsistent with the provisions of the Constitution remained in operation after the Constitution. The authority vested in the Inspector-General of Police and his subordinates by S. 7 of the Police Act was not exclusive. It was controlled by the Government of India Act 1935, and the Constitution which made the tenure of all civil servants of a Province during the pleasure of the Governor of that Province. The plea that the Governor had no power to dismiss the appellant from service and such power could only be exercised by the Inspector General of Police and the officers named in S. 7 of the Police Act is, therefore, without substance. 16. It can be similarly said in the present case that the Tribunal rules are applicable to the respondent, that the Governor had the power to retire him compulsorily and that consequently the Governor could refer the enquiry into the allegations against the respondent to the Tribunal. 17. We have carefully compared the provisions of R. 8 of the Tribunal Rules with R. 3(b) of the Police Rules which lay down the procedure to be followed is substantially the same. The Police officer proceeded against is furnished with the appropriate charges he has to meet. The enquiry is conducted in his presence. The Police Officer is entitled to cross-examine the witness examined to give evidence in person and to have such witnesses called as he may wish. He can put in a written statement of defence and can argue orally in person. The procedure followed agrees in substance with what is laid down in the rules and is in accordance with the requirements of natural justice. It is not complained that there had been any irregularities in the course of the enquiry which prejudiced the respondent. The only difference between the provisions of the Tribunal Rules and the Police Rules is said to be that the Tribunal Rules do not provide for an appeal against the order of the Government while under the Police Rules an appeal is provided under R. 5. 18. If the order is of compulsory retirement passed by the State Government, the appeal lies to the Governor. The Tribunal Rules do not say that the order of the Government which is the authority competent to impose a penalty in cases enquired into by the Tribunal would be appealable or not. There is no reason why R. 5 of the Police Rules will not apply to the order passed by Government after having the enquiry into the allegations against the Police officer conducted by a Tribunal when an appeal lies against its order on the basis of an inquiry conducted through any other authority. The rules do not specify the authority which is to enquire into the various complaints against a Police officer governed by those rules. They provide an appeal against the order of the State Government imposing any penalty referred to in R. 2 which would include an order made by the Government after considering the report of the Tribunal. 19. The record in the present case shows that the respondent did prefer an appeal to the Governor of Madras for reinstatement and that that appeal was rejected. It follows, therefore, that this contention about the enquiry by the Tribunal being prejudicial and about the respondent having been prejudicial has no substance as an appeal against the State Government is not barred under the Tribunal Rules and as factually the respondent did prefer an appeal against the order of compulsory retirement. 20. We are, therefore, of opinion that the High Court was in error in quashing the order of the State Government retiring the respondent compulsorily on the ground that the evidence during the inquiry proceedings by the Tribunal was not sufficient to establish the charges against him beyond reasonable doubt. | 1[ds]7. It is well settled now that a High Court, in the exercise of its jurisdiction under Art. 226 of the Constitution, cannot sit in appeal over the findings of fact recorded by a competent Tribunal in a properly conducted departmental enquiry except when it be shown that the impugned findings were not supported by any evidence. It was so held in State of Orissa v. Murlidhar, AIR 1963 SC 404 , where it was said at p. 408 :Whether or not the evidence on which the Tribunal relied was satisfactory and sufficient for justifying its conclusion would not fall to be considered in a writ petition. That in effect is the approach initially adopted by the High Court at the beginning of its judgment. However, in the subsequent part of the judgment the High Court appears to have been persuaded to appreciate the evidence for itself, and that, in our opinion, is not reasonable or legitimate10. It is, therefore, clear that the High Court was in error in reappreciating the evidence before the Tribunal and recording the conclusion that that evidence did not establish the charges against the respondent. This is the only ground on which the Letters Patent Appeal has been allowed by the Division Bench, all other points urged by the respondent having been rejected by it. In the present appeal, the respondent has attempted to support the decision of the High Court under appeal on the ground that the findings recorded by the High Court on the said other points are erroneous. We will, therefore deal with the said points one by one12. Firstly, an order of compulsory retirement does not amount to an order of dismissal and, therefore, does not come within the language of this section. Secondly, the provisions of this section are subject to the provisions of Art. 311 of the Constitution, and to the rules framed by the State Government under the Police Act. If the order of compulsory retirement amounts, in the circumstances of this case, to an order of dismissal, the Constitutional requirement of Art. 311 that the respondent could not have been dismissed from service by an authority subordinate to that by which he was appointed has been satisfied. The respondent must have been appointed to the Police Service in 1929 by an authority subordinate to the State Government and, therefore, the State Government was competent to dismiss him. R. 4 specifies the authority which may impose any of the penalties prescribed in R. 2 on a member of the service specified in column 1 of the Schedule to the Rules and states that it shall be the authority specified in the corresponding entry under columns 2 to 8, therefore, whichever is relevant or any higher authority. According to the entry in the Schedule, the authority competent to order compulsory retirement, removal or dismissal of an Inspector of Police in the districts, is the Deputy Inspector-General of Police. The State Government is an authority higher than the Deputy Inspector-General of Police. This cannot be gainsaidWe do not agree with this contention16. It can be similarly said in the present case that the Tribunal rules are applicable to the respondent, that the Governor had the power to retire him compulsorily and that consequently the Governor could refer the enquiry into the allegations against the respondent to the Tribunal17. We have carefully compared the provisions of R. 8 of the Tribunal Rules with R. 3(b) of the Police Rules which lay down the procedure to be followed is substantially the same. The Police officer proceeded against is furnished with the appropriate charges he has to meet. The enquiry is conducted in his presence. The Police Officer is entitled to cross-examine the witness examined to give evidence in person and to have such witnesses called as he may wish. He can put in a written statement of defence and can argue orally in person. The procedure followed agrees in substance with what is laid down in the rules and is in accordance with the requirements of natural justice. It is not complained that there had been any irregularities in the course of the enquiry which prejudiced the respondent. The only difference between the provisions of the Tribunal Rules and the Police Rules is said to be that the Tribunal Rules do not provide for an appeal against the order of the Government while under the Police Rules an appeal is provided under R. 518. If the order is of compulsory retirement passed by the State Government, the appeal lies to the Governor. The Tribunal Rules do not say that the order of the Government which is the authority competent to impose a penalty in cases enquired into by the Tribunal would be appealable or not. There is no reason why R. 5 of the Police Rules will not apply to the order passed by Government after having the enquiry into the allegations against the Police officer conducted by a Tribunal when an appeal lies against its order on the basis of an inquiry conducted through any other authority. The rules do not specify the authority which is to enquire into the various complaints against a Police officer governed by those rules. They provide an appeal against the order of the State Government imposing any penalty referred to in R. 2 which would include an order made by the Government after considering the report of the Tribunal19. The record in the present case shows that the respondent did prefer an appeal to the Governor of Madras for reinstatement and that that appeal was rejected. It follows, therefore, that this contention about the enquiry by the Tribunal being prejudicial and about the respondent having been prejudicial has no substance as an appeal against the State Government is not barred under the Tribunal Rules and as factually the respondent did prefer an appeal against the order of compulsory retirement20. We are, therefore, of opinion that the High Court was in error in quashing the order of the State Government retiring the respondent compulsorily on the ground that the evidence during the inquiry proceedings by the Tribunal was not sufficient to establish the charges against him beyond reasonable doubt. | 1 | 3,461 | 1,113 | ### Instruction:
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provided for the enquiry by the Tribunal and the subsequent proceedings differs from similar procedure under the Rules in a way which is prejudicial to the interests of the Police Officer. We need not elaborately deal with these contentions as this Court had to deal with substantially the same contentions in Jagannath Prasad Sharma v. State of Uttar Pradesh, (1962) 1 SCR 151 : (AIR 1961 SC 1245 ). That case related to a Police Officer in Uttar Pradesh. The contentions raised were that the order dismissing him was unauthorized because the Governor had no power under S. 7 of the Police Act V of 1861 and the regulations framed thereunder to pass the order and further, even if the Governor could dismiss the Police Officer, a mode of enquiry prejudicial to the appellant in that case had been adopted out of two alternative modes of enquiry and, therefore, the proceedings of the Tribunal which enquired into the charges against him were void on account of the equal protection clause of the Constitution. It may be mentioned that the appellant in that case was a Deputy Superintendent of Police and the Act applicable to him was the Police Act of 1861. Section 7 of that Act is practically identical with S.10 of the Madras Act. The rule making power under both the Acts is with the State Government. The rules made by the Uttar Pradesh Government, are known as the Police Regulations. The U. P. Government made the Administrative Tribunal Rules in the exercise of powers conferred inter alia by S. 7 of the 1861 Act just as the Madras Tribunal Rules were framed by the Governor of Madras in the exercise of powers conferred by S. 211 of the Government of India Act, 1935 and of all other powers enabling the Governor to make rules. Such powers include the powers under S.10 of the Police Act. In Jagannath Prasads case. (1962) 1 SCR 151 : (AIR 1961 SC 1245 ), it was said at p. 159 : (at p. 1250 of AIR) : By virtue of Art. 313, the Police Regulations as well as the Tribunal Rules in so far as they were not inconsistent with the provisions of the Constitution remained in operation after the Constitution. The authority vested in the Inspector-General of Police and his subordinates by S. 7 of the Police Act was not exclusive. It was controlled by the Government of India Act 1935, and the Constitution which made the tenure of all civil servants of a Province during the pleasure of the Governor of that Province. The plea that the Governor had no power to dismiss the appellant from service and such power could only be exercised by the Inspector General of Police and the officers named in S. 7 of the Police Act is, therefore, without substance. 16. It can be similarly said in the present case that the Tribunal rules are applicable to the respondent, that the Governor had the power to retire him compulsorily and that consequently the Governor could refer the enquiry into the allegations against the respondent to the Tribunal. 17. We have carefully compared the provisions of R. 8 of the Tribunal Rules with R. 3(b) of the Police Rules which lay down the procedure to be followed is substantially the same. The Police officer proceeded against is furnished with the appropriate charges he has to meet. The enquiry is conducted in his presence. The Police Officer is entitled to cross-examine the witness examined to give evidence in person and to have such witnesses called as he may wish. He can put in a written statement of defence and can argue orally in person. The procedure followed agrees in substance with what is laid down in the rules and is in accordance with the requirements of natural justice. It is not complained that there had been any irregularities in the course of the enquiry which prejudiced the respondent. The only difference between the provisions of the Tribunal Rules and the Police Rules is said to be that the Tribunal Rules do not provide for an appeal against the order of the Government while under the Police Rules an appeal is provided under R. 5. 18. If the order is of compulsory retirement passed by the State Government, the appeal lies to the Governor. The Tribunal Rules do not say that the order of the Government which is the authority competent to impose a penalty in cases enquired into by the Tribunal would be appealable or not. There is no reason why R. 5 of the Police Rules will not apply to the order passed by Government after having the enquiry into the allegations against the Police officer conducted by a Tribunal when an appeal lies against its order on the basis of an inquiry conducted through any other authority. The rules do not specify the authority which is to enquire into the various complaints against a Police officer governed by those rules. They provide an appeal against the order of the State Government imposing any penalty referred to in R. 2 which would include an order made by the Government after considering the report of the Tribunal. 19. The record in the present case shows that the respondent did prefer an appeal to the Governor of Madras for reinstatement and that that appeal was rejected. It follows, therefore, that this contention about the enquiry by the Tribunal being prejudicial and about the respondent having been prejudicial has no substance as an appeal against the State Government is not barred under the Tribunal Rules and as factually the respondent did prefer an appeal against the order of compulsory retirement. 20. We are, therefore, of opinion that the High Court was in error in quashing the order of the State Government retiring the respondent compulsorily on the ground that the evidence during the inquiry proceedings by the Tribunal was not sufficient to establish the charges against him beyond reasonable doubt.
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competent Tribunal in a properly conducted departmental enquiry except when it be shown that the impugned findings were not supported by any evidence. It was so held in State of Orissa v. Murlidhar, AIR 1963 SC 404 , where it was said at p. 408 :Whether or not the evidence on which the Tribunal relied was satisfactory and sufficient for justifying its conclusion would not fall to be considered in a writ petition. That in effect is the approach initially adopted by the High Court at the beginning of its judgment. However, in the subsequent part of the judgment the High Court appears to have been persuaded to appreciate the evidence for itself, and that, in our opinion, is not reasonable or legitimate10. It is, therefore, clear that the High Court was in error in reappreciating the evidence before the Tribunal and recording the conclusion that that evidence did not establish the charges against the respondent. This is the only ground on which the Letters Patent Appeal has been allowed by the Division Bench, all other points urged by the respondent having been rejected by it. In the present appeal, the respondent has attempted to support the decision of the High Court under appeal on the ground that the findings recorded by the High Court on the said other points are erroneous. We will, therefore deal with the said points one by one12. Firstly, an order of compulsory retirement does not amount to an order of dismissal and, therefore, does not come within the language of this section. Secondly, the provisions of this section are subject to the provisions of Art. 311 of the Constitution, and to the rules framed by the State Government under the Police Act. If the order of compulsory retirement amounts, in the circumstances of this case, to an order of dismissal, the Constitutional requirement of Art. 311 that the respondent could not have been dismissed from service by an authority subordinate to that by which he was appointed has been satisfied. The respondent must have been appointed to the Police Service in 1929 by an authority subordinate to the State Government and, therefore, the State Government was competent to dismiss him. R. 4 specifies the authority which may impose any of the penalties prescribed in R. 2 on a member of the service specified in column 1 of the Schedule to the Rules and states that it shall be the authority specified in the corresponding entry under columns 2 to 8, therefore, whichever is relevant or any higher authority. According to the entry in the Schedule, the authority competent to order compulsory retirement, removal or dismissal of an Inspector of Police in the districts, is the Deputy Inspector-General of Police. The State Government is an authority higher than the Deputy Inspector-General of Police. This cannot be gainsaidWe do not agree with this contention16. It can be similarly said in the present case that the Tribunal rules are applicable to the respondent, that the Governor had the power to retire him compulsorily and that consequently the Governor could refer the enquiry into the allegations against the respondent to the Tribunal17. We have carefully compared the provisions of R. 8 of the Tribunal Rules with R. 3(b) of the Police Rules which lay down the procedure to be followed is substantially the same. The Police officer proceeded against is furnished with the appropriate charges he has to meet. The enquiry is conducted in his presence. The Police Officer is entitled to cross-examine the witness examined to give evidence in person and to have such witnesses called as he may wish. He can put in a written statement of defence and can argue orally in person. The procedure followed agrees in substance with what is laid down in the rules and is in accordance with the requirements of natural justice. It is not complained that there had been any irregularities in the course of the enquiry which prejudiced the respondent. The only difference between the provisions of the Tribunal Rules and the Police Rules is said to be that the Tribunal Rules do not provide for an appeal against the order of the Government while under the Police Rules an appeal is provided under R. 518. If the order is of compulsory retirement passed by the State Government, the appeal lies to the Governor. The Tribunal Rules do not say that the order of the Government which is the authority competent to impose a penalty in cases enquired into by the Tribunal would be appealable or not. There is no reason why R. 5 of the Police Rules will not apply to the order passed by Government after having the enquiry into the allegations against the Police officer conducted by a Tribunal when an appeal lies against its order on the basis of an inquiry conducted through any other authority. The rules do not specify the authority which is to enquire into the various complaints against a Police officer governed by those rules. They provide an appeal against the order of the State Government imposing any penalty referred to in R. 2 which would include an order made by the Government after considering the report of the Tribunal19. The record in the present case shows that the respondent did prefer an appeal to the Governor of Madras for reinstatement and that that appeal was rejected. It follows, therefore, that this contention about the enquiry by the Tribunal being prejudicial and about the respondent having been prejudicial has no substance as an appeal against the State Government is not barred under the Tribunal Rules and as factually the respondent did prefer an appeal against the order of compulsory retirement20. We are, therefore, of opinion that the High Court was in error in quashing the order of the State Government retiring the respondent compulsorily on the ground that the evidence during the inquiry proceedings by the Tribunal was not sufficient to establish the charges against him beyond reasonable doubt.
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UNION OF INDIA Vs. RELIANCE COMMUNICATION LIMITED | i.e. the excess amounts and also the release of the bank guarantee amounting to 108.95 crores. 6. The Union disputed its liability before the TDSAT and relied upon Para 4.5b(x) of the NIA 2015 and also alleged that default interest was payable and furthermore, that RCL had defaulted in payment of spectrum instalment to the tune of 795.77 crores in March-April 2019. 7. The TDSAT, by its impugned order, partly allowed the respondents application after noting the Unions reservations and objections. The TDSAT observed as follows: In our considered view the request of the respondent would amount to a demand for enhanced bank guarantee for other purposes. This cannot be achieved through the method of encashment of bank guarantees furnished for deferred Spectrum Charges. The existing charges against the petitioner have already been taken note of and an amount of Rs.30.33 crores approx. has been adjusted out of the encashed amount of Rs.908 crores. The remaining amount of Rs.104.34 crores is lying and unadjusted amount should be returned to the petitioner without prejudice to the rights of either of the parties for any other charges which the petitioner may be found to be liable to pay. Since the petitioner has reservations against the adjusted amount of Rs.30.33 crores, it may file its reply by way of rejoinder within three weeks. Post the matter under the same head on 29.1.2019. 8. The Union contends that TDSATs impugned order is contrary to clause 4.5b(ix) of NIA 2013 under the corresponding provision, i.e. Clause 4.5b(x) of NIA 2015 as well as other conditions such as clauses 13.1 and 13.2 of the license agreement. It further contends that the respondents could not have been granted relief given the fact that they went into liquidation and were continuously defaulting in spectrum deferred payments; the Union also cites the default to the extent of 21.53 crores – with overdue interest amount working out to 27.63 crores as on 03.03.2019. It, therefore, contended that the question of refund of excess amounts retained could not arise. It was lastly contended that in any case, these issues could not have been gone in execution proceedings but were properly the subject matter of substantive proceedings. 9. The respondents argue that the Unions refusal to refund the money amounts to its unjust enrichment at their cost. The Union has no right over the excess money directed to be refunded by the Tribunal. It is submitted that despite the directions of the TDSAT, the Union has refused to refund the money. It is further submitted that encashment of the bank guarantees in respect of the subsequent default of the deferred spectrum instalments for the year 2019 was stayed by the NCLAT (National Company Law Appellate Tribunal). Thereafter, the moratorium was revived qua the Respondents and therefore, the appropriate remedy available to the Union was under the IBC (Insolvency and Bankruptcy Code). The Union, it is stated, has already filed its claim before the resolution professional for the said deferred spectrum instalments for the year 2019. Therefore, it cannot be permitted to claim adjustment of the unlawfully encashed amount towards subsequent deferred spectrum liabilities. The respondents also urge that a subsequent default of the deferred spectrum instalment for the year 2019, is a separate cause of action and the Union has remedies in law to recover those so called dues. It cannot arbitrarily and illegally withhold return of excess amount, despite there being a judicial order to the effect. 10. The facts narrated above show that the respondent-licencees faced financial constraints; apparently telecom service providers as a class also faced some financial stress, which triggered the Union to revisit its policy and ultimately modify the terms of payment of deferred payment charges and consequently, the letter of 19.03.2018. Despite these, the respondent licensees could not fulfil the conditions of the licenses held by them (i.e. NIA 2013 and NIA 2015) vis-à-vis payment of deferred spectrum charges; they approached the TDSAT, but without success. Their appeals to this court fared better; the time for making payment was extended somewhat. Upon default (in payment of the charges), the Union invoked guarantees under the sets of licenses. The respondent licencees pointed out to the Union repeatedly, that despite the furnishing of requisite guarantees (to the extent of 774.25 crores) later (on 19 th August, 2018) the excess amounts i.e. amount after adjusting the invoked guarantees towards the deferred charges had to be refunded. The Union did not do so; consequently RCL/RTL approached TDSAT for a direction in execution proceedings. Their claim was accepted inasmuch as the impugned direction was issued. 11. On a recapitulation of all circumstances, and the various terms of NIA 2013 and NIA 2015, this court is of the opinion that the order of the TDSAT does not call for any interference. The Union nowhere disputes that the respondent licensees liability toward payment of deferred spectrum charges, in May, 2018, was to the tune of 774.25 crores. The total amount realized upon encashment of the bank guarantees furnished by the respondents, however, was to the extent of 908.91 crores. It is also a matter of record that the respondents furnished another bank guarantee to the tune of 774.25 crores.There is consequently logic and merit in the contention of RCL/RTL that the Union unreasonably refused to refund the excess amounts. The Unions argument that there were subsequent defaults or short payments in respect of liability towards later periods, or its objection that the impugned directions could not have been issued in execution proceedings, are insubstantial. As noticed earlier, the bank guarantees for the later periods were furnished by the respondents (to the extent of 774.25 crores). In these circumstances, there is no rationale for the Union to resist the demand for refund of excess amounts. The TDSAT, in the opinion of this court, exercised its discretion, with respect, circumspectly, because the entire amount of 134.66 crores claimed in the application was not allowed; rather the direction issued was in respect of 104. 34 crores. | 0[ds]10. The facts narrated above show that the respondent-licencees faced financial constraints; apparently telecom service providers as a class also faced some financial stress, which triggered the Union to revisit its policy and ultimately modify the terms of payment of deferred payment charges and consequently, the letter of 19.03.2018. Despite these, the respondent licensees could not fulfil the conditions of the licenses held by them (i.e. NIA 2013 and NIA 2015) vis-à-vis payment of deferred spectrum charges; they approached the TDSAT, but without success. Their appeals to this court fared better; the time for making payment was extended somewhat. Upon default (in payment of the charges), the Union invoked guarantees under the sets of licenses. The respondent licencees pointed out to the Union repeatedly, that despite the furnishing of requisite guarantees (to the extent of 774.25 crores) later (on 19 th August, 2018) the excess amounts i.e. amount after adjusting the invoked guarantees towards the deferred charges had to be refunded. The Union did not do so; consequently RCL/RTL approached TDSAT for a direction in execution proceedings. Their claim was accepted inasmuch as the impugned direction was issued11. On a recapitulation of all circumstances, and the various terms of NIA 2013 and NIA 2015, this court is of the opinion that the order of the TDSAT does not call for any interference. The Union nowhere disputes that the respondent licensees liability toward payment of deferred spectrum charges, in May, 2018, was to the tune of 774.25 crores.The total amount realized upon encashment of the bank guarantees furnished by the respondents, however, was to the extent of 908.91 crores. It is also a matter of recordthat the respondents furnished another bank guarantee to the tune of 774.25 crores.There is consequently logic and merit in the contention of RCL/RTL that the Union unreasonably refused to refund the excess amounts. The Unions argument that there were subsequent defaults or short payments in respect of liability towards later periods, or its objection that the impugned directions could not have been issued in execution proceedings, are insubstantial. As noticed earlier, the bank guarantees for the later periods were furnished by the respondents (to the extent of 774.25 crores). In these circumstances, there is no rationale for the Union to resist the demand for refund of excess amounts. The TDSAT, in the opinion of this court, exercised its discretion, with respect, circumspectly, because the entire amount of 134.66 crores claimed in the application was not allowed; rather the direction issued was in respect of 104. 34 crores. | 0 | 1,911 | 481 | ### 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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i.e. the excess amounts and also the release of the bank guarantee amounting to 108.95 crores. 6. The Union disputed its liability before the TDSAT and relied upon Para 4.5b(x) of the NIA 2015 and also alleged that default interest was payable and furthermore, that RCL had defaulted in payment of spectrum instalment to the tune of 795.77 crores in March-April 2019. 7. The TDSAT, by its impugned order, partly allowed the respondents application after noting the Unions reservations and objections. The TDSAT observed as follows: In our considered view the request of the respondent would amount to a demand for enhanced bank guarantee for other purposes. This cannot be achieved through the method of encashment of bank guarantees furnished for deferred Spectrum Charges. The existing charges against the petitioner have already been taken note of and an amount of Rs.30.33 crores approx. has been adjusted out of the encashed amount of Rs.908 crores. The remaining amount of Rs.104.34 crores is lying and unadjusted amount should be returned to the petitioner without prejudice to the rights of either of the parties for any other charges which the petitioner may be found to be liable to pay. Since the petitioner has reservations against the adjusted amount of Rs.30.33 crores, it may file its reply by way of rejoinder within three weeks. Post the matter under the same head on 29.1.2019. 8. The Union contends that TDSATs impugned order is contrary to clause 4.5b(ix) of NIA 2013 under the corresponding provision, i.e. Clause 4.5b(x) of NIA 2015 as well as other conditions such as clauses 13.1 and 13.2 of the license agreement. It further contends that the respondents could not have been granted relief given the fact that they went into liquidation and were continuously defaulting in spectrum deferred payments; the Union also cites the default to the extent of 21.53 crores – with overdue interest amount working out to 27.63 crores as on 03.03.2019. It, therefore, contended that the question of refund of excess amounts retained could not arise. It was lastly contended that in any case, these issues could not have been gone in execution proceedings but were properly the subject matter of substantive proceedings. 9. The respondents argue that the Unions refusal to refund the money amounts to its unjust enrichment at their cost. The Union has no right over the excess money directed to be refunded by the Tribunal. It is submitted that despite the directions of the TDSAT, the Union has refused to refund the money. It is further submitted that encashment of the bank guarantees in respect of the subsequent default of the deferred spectrum instalments for the year 2019 was stayed by the NCLAT (National Company Law Appellate Tribunal). Thereafter, the moratorium was revived qua the Respondents and therefore, the appropriate remedy available to the Union was under the IBC (Insolvency and Bankruptcy Code). The Union, it is stated, has already filed its claim before the resolution professional for the said deferred spectrum instalments for the year 2019. Therefore, it cannot be permitted to claim adjustment of the unlawfully encashed amount towards subsequent deferred spectrum liabilities. The respondents also urge that a subsequent default of the deferred spectrum instalment for the year 2019, is a separate cause of action and the Union has remedies in law to recover those so called dues. It cannot arbitrarily and illegally withhold return of excess amount, despite there being a judicial order to the effect. 10. The facts narrated above show that the respondent-licencees faced financial constraints; apparently telecom service providers as a class also faced some financial stress, which triggered the Union to revisit its policy and ultimately modify the terms of payment of deferred payment charges and consequently, the letter of 19.03.2018. Despite these, the respondent licensees could not fulfil the conditions of the licenses held by them (i.e. NIA 2013 and NIA 2015) vis-à-vis payment of deferred spectrum charges; they approached the TDSAT, but without success. Their appeals to this court fared better; the time for making payment was extended somewhat. Upon default (in payment of the charges), the Union invoked guarantees under the sets of licenses. The respondent licencees pointed out to the Union repeatedly, that despite the furnishing of requisite guarantees (to the extent of 774.25 crores) later (on 19 th August, 2018) the excess amounts i.e. amount after adjusting the invoked guarantees towards the deferred charges had to be refunded. The Union did not do so; consequently RCL/RTL approached TDSAT for a direction in execution proceedings. Their claim was accepted inasmuch as the impugned direction was issued. 11. On a recapitulation of all circumstances, and the various terms of NIA 2013 and NIA 2015, this court is of the opinion that the order of the TDSAT does not call for any interference. The Union nowhere disputes that the respondent licensees liability toward payment of deferred spectrum charges, in May, 2018, was to the tune of 774.25 crores. The total amount realized upon encashment of the bank guarantees furnished by the respondents, however, was to the extent of 908.91 crores. It is also a matter of record that the respondents furnished another bank guarantee to the tune of 774.25 crores.There is consequently logic and merit in the contention of RCL/RTL that the Union unreasonably refused to refund the excess amounts. The Unions argument that there were subsequent defaults or short payments in respect of liability towards later periods, or its objection that the impugned directions could not have been issued in execution proceedings, are insubstantial. As noticed earlier, the bank guarantees for the later periods were furnished by the respondents (to the extent of 774.25 crores). In these circumstances, there is no rationale for the Union to resist the demand for refund of excess amounts. The TDSAT, in the opinion of this court, exercised its discretion, with respect, circumspectly, because the entire amount of 134.66 crores claimed in the application was not allowed; rather the direction issued was in respect of 104. 34 crores.
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0
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10. The facts narrated above show that the respondent-licencees faced financial constraints; apparently telecom service providers as a class also faced some financial stress, which triggered the Union to revisit its policy and ultimately modify the terms of payment of deferred payment charges and consequently, the letter of 19.03.2018. Despite these, the respondent licensees could not fulfil the conditions of the licenses held by them (i.e. NIA 2013 and NIA 2015) vis-à-vis payment of deferred spectrum charges; they approached the TDSAT, but without success. Their appeals to this court fared better; the time for making payment was extended somewhat. Upon default (in payment of the charges), the Union invoked guarantees under the sets of licenses. The respondent licencees pointed out to the Union repeatedly, that despite the furnishing of requisite guarantees (to the extent of 774.25 crores) later (on 19 th August, 2018) the excess amounts i.e. amount after adjusting the invoked guarantees towards the deferred charges had to be refunded. The Union did not do so; consequently RCL/RTL approached TDSAT for a direction in execution proceedings. Their claim was accepted inasmuch as the impugned direction was issued11. On a recapitulation of all circumstances, and the various terms of NIA 2013 and NIA 2015, this court is of the opinion that the order of the TDSAT does not call for any interference. The Union nowhere disputes that the respondent licensees liability toward payment of deferred spectrum charges, in May, 2018, was to the tune of 774.25 crores.The total amount realized upon encashment of the bank guarantees furnished by the respondents, however, was to the extent of 908.91 crores. It is also a matter of recordthat the respondents furnished another bank guarantee to the tune of 774.25 crores.There is consequently logic and merit in the contention of RCL/RTL that the Union unreasonably refused to refund the excess amounts. The Unions argument that there were subsequent defaults or short payments in respect of liability towards later periods, or its objection that the impugned directions could not have been issued in execution proceedings, are insubstantial. As noticed earlier, the bank guarantees for the later periods were furnished by the respondents (to the extent of 774.25 crores). In these circumstances, there is no rationale for the Union to resist the demand for refund of excess amounts. The TDSAT, in the opinion of this court, exercised its discretion, with respect, circumspectly, because the entire amount of 134.66 crores claimed in the application was not allowed; rather the direction issued was in respect of 104. 34 crores.
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M.P.Gopalakrishnan Nair Vs. State Of Kerala | temple worship, will fulfill the requirement of the word Hindu occurring in the Act. Our conclusion aforesaid necessarily flows from the title and preamble of the Act as also the definition contained in S.2(b) of the Act." 44. The High Court for the aforementioned purpose considered the history of the provisions as was understood at the relevant time. It noticed the Full Bench decision of Krishnan (supra) and while doing so fell into an error as was done in Krishnankutty (supra) that therein a proposition of law has been laid down in the fact that the person who professes Hindu religion but not a believer in temple worship and may even be opposed to the practice of idol worship cannot be considered a representative of the public having believed in God and temple worship.45. This decision cannot, thus, be said to be an authority for the proposition that the "electoral college" should also be believers in temple worship.46. The crucial question may now be addressed whether the vesting of power in the "Hindus" in the Council of Ministers to nominate the members of the Managing Committee could be held to violate Articles 25 and 26. The temple is visited by millions every year. Apart from proper management of the funds flowing from these devotees, the Devaswom also owns other properties, runs a college, a guest house, choultries etc., all of which require efficient and prompt management. This is quiet apart from the spiritual management dealing with religious side which is under the sole control management and guidance of the Thanthri. It is the secular aspect of the management that is vested in the Management Committee.47. We have noticed hereinbefore that it is one thing to say that prejudice may be caused if the management of temple is entrusted to a person who has no faith in temple worship it is another thing to say that such persons are nominated by those who may not have any such faith but those nominated would not only be believers in God but also in temple worship. The function of a statutory and constitutional authority while exercising its power of nomination cannot be equated with the power of management of a temple, particularly, in relation to the religious aspects involved therein.48. One further question which may arise is as to whether Articles 25 or 26 can be invoked on the facts of the present case. There is no case for the Appellant that Section 4 insofar as it provides for the constitution of the Managing Committee is violative of any rights. If this be the position, the claim that the right of nomination has not been vested in a proper body is beside the point. The right to manage the Devaswom was at the inception of the Constitution vested in the two hereditary trustees, viz., the Zamorain Raja of Calicut and the Karnavam (Manager) of the Malliseery Illom (A Namboodri Family). The denomination of devotees at large had no say in the administration, except to watch the counting of the contents, the Bhandarams of the hundies of sealed locks where the devotees deposit their offering to prevent any defalcation or pilferage. [See Krishnan (supra), para 3] The denomination of devotees had no say or right in the administration - secular or religious - of the temple. Article 26 does not create any rights in any denomination which it never had. It only safeguards and guarantees existing rights, which such a denomination had. [See Sri Adi Visheshwara of Kashi Vishwanath Temple, Varanasi (supra)]. Since the denomination had no right prior to January 26, 1950, they cannot claim any such rights after the enactment of the impugned Act. If it had no such right even in the matter of management of the temple, it is all most so in the matter of the constitution of the "electorate".49. The said decision, therefore, also has no application to the fact of the present case. 50. The submission of the learned counsel to the effect that in Narayanan Namboodiri (supra) Section 4(1) was read down on the basis of the concession made by the Additional Advocate General and Special Counsel appearing for the Devaswom, in our opinion, with respect, have rightly been held to be not binding on the State by the High Court. 51. In Sanjeev Coke Manufacturing Company vs. M/s. Bharat Coking Coal Limited and Another [(1983) 1 SCC 147 : AIR 1983 SC 239 ], this Court held: "25..No Act of Parliament may be struck down because of the understanding or misunderstanding of parliamentary intention by the executive Government or because their (the Governments) spokesmen do not bring out relevant circumstances but indulge in empty and self-defeating affidavits. They do not and they cannot bind Parliament Validity of legislation is not to be judged merely .by affidavits filed on behalf of the State, but by all the relevant circumstances which the court may ultimately find and more especially by what may be gathered from what the legislature has itself said." 52. In P. Nallammal and Another vs. State represented by Inspector of Police [(1999) 6 SCC 559 : JT 1999(5) SC 410 ], this Court observed: "7....The volte-face of the Union of India cannot be frowned at, for, it is open to the State or Union of India or even a private party to retrace or even resile from a concession once made in the court on a legal proposition. Firstly, because the party concerned, on a reconsideration of the proposition could comprehend a different construction as more appropriate. Secondly, the construction of statutory provision cannot rest entirely on the stand adopted by any party in the lis. Thirdly, the parties must be left free to aid the court in reaching the correct construction to be placed on a statutory provision. They cannot be nailed to a position on the legal interpretation which they adopted at a particular point of time because saner thoughts can throw more light on the same subject at a letter stage." | 1[ds]18. India is a secular country. Secularism has been inserted in the Preamble by reason of the Constitution 42nd Amendment Act, 1976. The object of inserting the said word was to spell out expressly the high ideas of secularism and the integrity of the nation on the ground that these institutions are subject to considerable stresses and strains and vested interests have been trying to promote their selfish ends to the great detriment of the public good.From its provisions it is clear that the Act has ensured that only persons who believe in temple worship are to be in the management of the temple. The Act has further ensured that none except the Thanthri gets any voice in the spiritual administration of the temple and that his voice alone will prevail in such matters. The practice of religion by the denomination including customs, practices and rituals is, therefore, preserved in its entirety and there is no tampering therewith in any manner whatsoever.The only ground, which weighed with the Bench declaring Section 4(1) of the 1978 as unconstitutional, in confirmation of naked and arbitrary power upon the Government without any safeguard being provided for ensuring that the Committee would be a body representing the denomination. The 1978 Act was, as noticed hereinbefore, enacted to overcome the same. The composition of the body which would have the power of nomination in terms of Sections 4(1)(d) and 4(1)(e) would consist of the Hindu Ministers professing Hindu religion only. While making such nominations, they are statutorily bound to nominate such persons who would fulfill the criteria laid down therein. Section 4, therefore, lays down guidelines for ensuring that the Committee would be a body representing the denomination.The Bench in Krishnan (supra) upheld the right of the Executive Government to oversee control and management of a temple, but merely made the followingmay, however, observe that in the light of the recent amendment of the preamble to the Constitution emphasizing the secular character of the State it is desirable that the legislature should consider whether the power to nominate the members of the Committee should not be conferred on an independent statutory body other than the State Government with sufficient guidelines furnished to it for ensuring that the nominations will be effected in such a way as to be truly representative of the denomination consisting of the worshipping public.It is not clear how vesting of such a right on the Hindus in the Council of Ministers can effect their denominational rights when the members of the Managing Committee, the Commissioner and the Administrator have all got to be believers in temple worship. To insist on such a qualification in the electorate will be as bad saying that when the law relating to a temple is under consideration in the legislature, only Hindu legislatures can vote and they must further be qualified as believers in temple worship.30. It is expected that the action of such a body would be bona fide and reasonable. Once a committee is constituted which would be representing the denomination, in our opinion, it would be not be correct to contend that even the authority empowered to nominate must also be representative of the denomination.31. Indisputably the State has the requisite jurisdiction to oversee the administration of a temple subject to Articles 25 and 26 of the Constitution of India. The grievance as regard the violation of the constitutional right as enshrined under Articles 25 and 26 of the Constitution of India must be considered having regard to the object and purport of the Act. For fulfilling the said requirements, the denomination must have been enjoying the right to manage the properties endowed in favour of the institutions. If the right to administer the properties never vested in the denomination the protection under Article 26 of the Constitution of India is not available.32. Assuming such a denomination exist, the question which is required to be posed is, what is the right that is sought to be protected. The right sought to be preserved is that under clauses (d) and (e) of Section 4(1). It does not depend upon the persons who nominates the members of the Managing Committee. The crux of the matter is who are the persons who are qualified to be in the Managing Committee. To fulfill the said object, the statute has taken particular care to see that only those who believe in temple worship among the Hindus can be nominated under clauses (d) and (e) of Section 4.33. The High Court in its impugned judgment has arrived at a finding as regard categorical existence of a subsisting religious practice that as on the date of coming into force of the Constitution of India it has not been established that the denomination of temple worshippers had any right to be on the management committee or the members of such a committee were being elected / nominated by an electoral college consisting exclusively of members of such denomination. Nothing has been pointed out before us to show that such a finding is contrary to the materials on records.It is also now trite that although State cannot interfere with the freedom of a person to profess, practise and propagate his religion, the secular matters connected therewith can be the subject matter of control by the State. The management of the temple primarily is a secular act. The temple authority controls the activities of various servants of the temple. It manages several institutions including educational institutions pertaining to it. The disciplinary power over the servants of the temple, including the priest may vest in a committee. The payment of remuneration to the temple servants was also not a religious act but was of purely secular in nature. (See Shri Jagannath Temple Puri Management Committee represented through its Administrator and another vs. Chintamani Khuntia and others (1997) 8 SCC 422 ), Pannalal Bansilal Pitti and Others vs. State of A.P. and another (1996) 2 SCC 498 and Bhuri Nath and others vs. State of J & K and others (1997) 2 SCC 745 ).The decision of the Kerala High Court in Krishnan (supra) did not lay down any proposition of law that the person authorized to nominate the persons of the Managing Committee should also form part of the denomination. With respect, the Full Bench in Narayanan Namboodiri (supra) misread and misinterpreted Krishnan (supra). Even assuming that the decision in Narayanan Namboodiri (supra) is correct (which it is not) it is not proper or correct to brand all Ministers of leftist Government as persons not believing in temple worship. There is no presumption that a Communist or Socialist (who may normally form part of a leftist Council of Ministers) are ipso facto non believers in god or in temple worship. Such a sweeping allegation or premise on which the prayer is based need not be correct. It depends on each individual approach. The observations in a judgment should not be, it is trite, read as a ratio. A decision, as is well-known, is an authority of what it decides and not what can logically be deduced therefrom. (See Chandra Sarkar vs. Rajesh Ranjan @ Pappu Yadav and another para 42 - (2005) 1 SCALE 385 ) and Haryana State Coop. Land Dev. Bank vs. Neelam, JT 2005(2) SC 600 ).41. So far as the decision of Narayanan Namboodiri (supra) is concerned, we are of the opinion that the High Court in its impugned judgment has rightly held the same to be not applicable to the fact of the present case.The High Court for the aforementioned purpose considered the history of the provisions as was understood at the relevant time. It noticed the Full Bench decision of Krishnan (supra) and while doing so fell into an error as was done in Krishnankutty (supra) that therein a proposition of law has been laid down in the fact that the person who professes Hindu religion but not a believer in temple worship and may even be opposed to the practice of idol worship cannot be considered a representative of the public having believed in God and temple worship.45. This decision cannot, thus, be said to be an authority for the proposition that the "electoral college" should also be believers in temple worship.46. The crucial question may now be addressed whether the vesting of power in the "Hindus" in the Council of Ministers to nominate the members of the Managing Committee could be held to violate Articles 25 and 26. The temple is visited by millions every year. Apart from proper management of the funds flowing from these devotees, the Devaswom also owns other properties, runs a college, a guest house, choultries etc., all of which require efficient and prompt management. This is quiet apart from the spiritual management dealing with religious side which is under the sole control management and guidance of the Thanthri. It is the secular aspect of the management that is vested in the Management Committee.47. We have noticed hereinbefore that it is one thing to say that prejudice may be caused if the management of temple is entrusted to a person who has no faith in temple worship it is another thing to say that such persons are nominated by those who may not have any such faith but those nominated would not only be believers in God but also in temple worship. The function of a statutory and constitutional authority while exercising its power of nomination cannot be equated with the power of management of a temple, particularly, in relation to the religious aspects involved therein.48. One further question which may arise is as to whether Articles 25 or 26 can be invoked on the facts of the present case. There is no case for the Appellant that Section 4 insofar as it provides for the constitution of the Managing Committee is violative of any rights. If this be the position, the claim that the right of nomination has not been vested in a proper body is beside the point. The right to manage the Devaswom was at the inception of the Constitution vested in the two hereditary trustees, viz., the Zamorain Raja of Calicut and the Karnavam (Manager) of the Malliseery Illom (A Namboodri Family). The denomination of devotees at large had no say in the administration, except to watch the counting of the contents, the Bhandarams of the hundies of sealed locks where the devotees deposit their offering to prevent any defalcation or pilferage. [See Krishnan (supra), para 3] The denomination of devotees had no say or right in the administration - secular or religious - of the temple. Article 26 does not create any rights in any denomination which it never had. It only safeguards and guarantees existing rights, which such a denomination had. [See Sri Adi Visheshwara of Kashi Vishwanath Temple, Varanasi (supra)]. Since the denomination had no right prior to January 26, 1950, they cannot claim any such rights after the enactment of the impugned Act. If it had no such right even in the matter of management of the temple, it is all most so in the matter of the constitution of the "electorate".49. The said decision, therefore, also has no application to the fact of the present case.The contention by the Appellant that the "electorate" should be representative of the denomination of believers in temple worship (assuming such a denomination exists) also cannot be accepted, who will determine the electorate from amongst the millions of devotees of Lord Krishna visiting the temple? It will be impossible and impracticable to select such a College of "electors" from among them. The whole exercise will be arbitrary and time consuming and will be open to further challenge. The present mode has the advantage of being precise as the same has the advantage that only believers in temple worship are put incharge of the administration.56. A statute, it is trite, should not be interpreted in such a manner as would lead to absurdity. [See Nandkishore Ganesh Joshi vs. Commissioner, Municipal Corporation of Kalyan & Dombivali and Ors. JT 2004 (9) SC 242 and Ranjitsingh Brahmajeetsingh Sharma vs. State of Maharashtra and Anr., JT 2005 (4) SC 123 ].57. It is necessary to bear in mind the principle - ut res magis valeat quam pereat in terms whereof a statute must be read in such a manner which would make it workable. [See Balram Kumawat vs. Union of India, (2003) 7 SCC 628 , Nandkishore Ganesh Joshi (supra), para 19 and Pratap Singh vs. State of Jharkhand and Anr., JT 2005(2) SC 271 , para 82].The submission of the learned counsel to the effect that in Narayanan Namboodiri (supra) Section 4(1) was read down on the basis of the concession made by the Additional Advocate General and Special Counsel appearing for the Devaswom, in our opinion, with respect, have rightly been held to be not binding on the State by the High Court. | 1 | 7,826 | 2,407 | ### 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:
temple worship, will fulfill the requirement of the word Hindu occurring in the Act. Our conclusion aforesaid necessarily flows from the title and preamble of the Act as also the definition contained in S.2(b) of the Act." 44. The High Court for the aforementioned purpose considered the history of the provisions as was understood at the relevant time. It noticed the Full Bench decision of Krishnan (supra) and while doing so fell into an error as was done in Krishnankutty (supra) that therein a proposition of law has been laid down in the fact that the person who professes Hindu religion but not a believer in temple worship and may even be opposed to the practice of idol worship cannot be considered a representative of the public having believed in God and temple worship.45. This decision cannot, thus, be said to be an authority for the proposition that the "electoral college" should also be believers in temple worship.46. The crucial question may now be addressed whether the vesting of power in the "Hindus" in the Council of Ministers to nominate the members of the Managing Committee could be held to violate Articles 25 and 26. The temple is visited by millions every year. Apart from proper management of the funds flowing from these devotees, the Devaswom also owns other properties, runs a college, a guest house, choultries etc., all of which require efficient and prompt management. This is quiet apart from the spiritual management dealing with religious side which is under the sole control management and guidance of the Thanthri. It is the secular aspect of the management that is vested in the Management Committee.47. We have noticed hereinbefore that it is one thing to say that prejudice may be caused if the management of temple is entrusted to a person who has no faith in temple worship it is another thing to say that such persons are nominated by those who may not have any such faith but those nominated would not only be believers in God but also in temple worship. The function of a statutory and constitutional authority while exercising its power of nomination cannot be equated with the power of management of a temple, particularly, in relation to the religious aspects involved therein.48. One further question which may arise is as to whether Articles 25 or 26 can be invoked on the facts of the present case. There is no case for the Appellant that Section 4 insofar as it provides for the constitution of the Managing Committee is violative of any rights. If this be the position, the claim that the right of nomination has not been vested in a proper body is beside the point. The right to manage the Devaswom was at the inception of the Constitution vested in the two hereditary trustees, viz., the Zamorain Raja of Calicut and the Karnavam (Manager) of the Malliseery Illom (A Namboodri Family). The denomination of devotees at large had no say in the administration, except to watch the counting of the contents, the Bhandarams of the hundies of sealed locks where the devotees deposit their offering to prevent any defalcation or pilferage. [See Krishnan (supra), para 3] The denomination of devotees had no say or right in the administration - secular or religious - of the temple. Article 26 does not create any rights in any denomination which it never had. It only safeguards and guarantees existing rights, which such a denomination had. [See Sri Adi Visheshwara of Kashi Vishwanath Temple, Varanasi (supra)]. Since the denomination had no right prior to January 26, 1950, they cannot claim any such rights after the enactment of the impugned Act. If it had no such right even in the matter of management of the temple, it is all most so in the matter of the constitution of the "electorate".49. The said decision, therefore, also has no application to the fact of the present case. 50. The submission of the learned counsel to the effect that in Narayanan Namboodiri (supra) Section 4(1) was read down on the basis of the concession made by the Additional Advocate General and Special Counsel appearing for the Devaswom, in our opinion, with respect, have rightly been held to be not binding on the State by the High Court. 51. In Sanjeev Coke Manufacturing Company vs. M/s. Bharat Coking Coal Limited and Another [(1983) 1 SCC 147 : AIR 1983 SC 239 ], this Court held: "25..No Act of Parliament may be struck down because of the understanding or misunderstanding of parliamentary intention by the executive Government or because their (the Governments) spokesmen do not bring out relevant circumstances but indulge in empty and self-defeating affidavits. They do not and they cannot bind Parliament Validity of legislation is not to be judged merely .by affidavits filed on behalf of the State, but by all the relevant circumstances which the court may ultimately find and more especially by what may be gathered from what the legislature has itself said." 52. In P. Nallammal and Another vs. State represented by Inspector of Police [(1999) 6 SCC 559 : JT 1999(5) SC 410 ], this Court observed: "7....The volte-face of the Union of India cannot be frowned at, for, it is open to the State or Union of India or even a private party to retrace or even resile from a concession once made in the court on a legal proposition. Firstly, because the party concerned, on a reconsideration of the proposition could comprehend a different construction as more appropriate. Secondly, the construction of statutory provision cannot rest entirely on the stand adopted by any party in the lis. Thirdly, the parties must be left free to aid the court in reaching the correct construction to be placed on a statutory provision. They cannot be nailed to a position on the legal interpretation which they adopted at a particular point of time because saner thoughts can throw more light on the same subject at a letter stage."
### Response:
1
### Explanation:
should not be, it is trite, read as a ratio. A decision, as is well-known, is an authority of what it decides and not what can logically be deduced therefrom. (See Chandra Sarkar vs. Rajesh Ranjan @ Pappu Yadav and another para 42 - (2005) 1 SCALE 385 ) and Haryana State Coop. Land Dev. Bank vs. Neelam, JT 2005(2) SC 600 ).41. So far as the decision of Narayanan Namboodiri (supra) is concerned, we are of the opinion that the High Court in its impugned judgment has rightly held the same to be not applicable to the fact of the present case.The High Court for the aforementioned purpose considered the history of the provisions as was understood at the relevant time. It noticed the Full Bench decision of Krishnan (supra) and while doing so fell into an error as was done in Krishnankutty (supra) that therein a proposition of law has been laid down in the fact that the person who professes Hindu religion but not a believer in temple worship and may even be opposed to the practice of idol worship cannot be considered a representative of the public having believed in God and temple worship.45. This decision cannot, thus, be said to be an authority for the proposition that the "electoral college" should also be believers in temple worship.46. The crucial question may now be addressed whether the vesting of power in the "Hindus" in the Council of Ministers to nominate the members of the Managing Committee could be held to violate Articles 25 and 26. The temple is visited by millions every year. Apart from proper management of the funds flowing from these devotees, the Devaswom also owns other properties, runs a college, a guest house, choultries etc., all of which require efficient and prompt management. This is quiet apart from the spiritual management dealing with religious side which is under the sole control management and guidance of the Thanthri. It is the secular aspect of the management that is vested in the Management Committee.47. We have noticed hereinbefore that it is one thing to say that prejudice may be caused if the management of temple is entrusted to a person who has no faith in temple worship it is another thing to say that such persons are nominated by those who may not have any such faith but those nominated would not only be believers in God but also in temple worship. The function of a statutory and constitutional authority while exercising its power of nomination cannot be equated with the power of management of a temple, particularly, in relation to the religious aspects involved therein.48. One further question which may arise is as to whether Articles 25 or 26 can be invoked on the facts of the present case. There is no case for the Appellant that Section 4 insofar as it provides for the constitution of the Managing Committee is violative of any rights. If this be the position, the claim that the right of nomination has not been vested in a proper body is beside the point. The right to manage the Devaswom was at the inception of the Constitution vested in the two hereditary trustees, viz., the Zamorain Raja of Calicut and the Karnavam (Manager) of the Malliseery Illom (A Namboodri Family). The denomination of devotees at large had no say in the administration, except to watch the counting of the contents, the Bhandarams of the hundies of sealed locks where the devotees deposit their offering to prevent any defalcation or pilferage. [See Krishnan (supra), para 3] The denomination of devotees had no say or right in the administration - secular or religious - of the temple. Article 26 does not create any rights in any denomination which it never had. It only safeguards and guarantees existing rights, which such a denomination had. [See Sri Adi Visheshwara of Kashi Vishwanath Temple, Varanasi (supra)]. Since the denomination had no right prior to January 26, 1950, they cannot claim any such rights after the enactment of the impugned Act. If it had no such right even in the matter of management of the temple, it is all most so in the matter of the constitution of the "electorate".49. The said decision, therefore, also has no application to the fact of the present case.The contention by the Appellant that the "electorate" should be representative of the denomination of believers in temple worship (assuming such a denomination exists) also cannot be accepted, who will determine the electorate from amongst the millions of devotees of Lord Krishna visiting the temple? It will be impossible and impracticable to select such a College of "electors" from among them. The whole exercise will be arbitrary and time consuming and will be open to further challenge. The present mode has the advantage of being precise as the same has the advantage that only believers in temple worship are put incharge of the administration.56. A statute, it is trite, should not be interpreted in such a manner as would lead to absurdity. [See Nandkishore Ganesh Joshi vs. Commissioner, Municipal Corporation of Kalyan & Dombivali and Ors. JT 2004 (9) SC 242 and Ranjitsingh Brahmajeetsingh Sharma vs. State of Maharashtra and Anr., JT 2005 (4) SC 123 ].57. It is necessary to bear in mind the principle - ut res magis valeat quam pereat in terms whereof a statute must be read in such a manner which would make it workable. [See Balram Kumawat vs. Union of India, (2003) 7 SCC 628 , Nandkishore Ganesh Joshi (supra), para 19 and Pratap Singh vs. State of Jharkhand and Anr., JT 2005(2) SC 271 , para 82].The submission of the learned counsel to the effect that in Narayanan Namboodiri (supra) Section 4(1) was read down on the basis of the concession made by the Additional Advocate General and Special Counsel appearing for the Devaswom, in our opinion, with respect, have rightly been held to be not binding on the State by the High Court.
|
M/S. Sunflag Iron & Steel Company Limited Vs. The Central Board of Direct Taxes, Ministry of Finance, Govt. of India & Another | Apex Court in the case of Kerala Financial Corporation v. Commissioner of Income Tax reported in AIR 1994 SC 2416 (cited supra), which read as under :13. Shri Salve would however, urge that a little different view of the matter had been taken by two-Judge Bench of this Court in K.P. Varghese v. Income Tax Officer, 131 ITR 597 : (AIR 1981 SC 1922 ) in which it was observed at page 613 that circulars issued under the aforesaid provisions are binding on all officers "even if they deviate from the provisions of the Act". As to what was sought to be conveyed by the word deviate is not clear to us. This much, however, is apparent that this Court did not mean, while saying as above, that circulars can override any provision of the Act or to put in the language of Mukharji, J. detract from the Act. Though Shri Salve has urged that the decision in Varghese has been affirmed by a Constitution Bench in C.B. Gautam v. Union of India, (1993) 1 SCC 78 , reference to that case shows that Vargheses case was mentioned in para 22 while stating that the conclusion arrived at, namely, that the provisions of Chapter XXC of the Act are to be resorted to only where there is significant undervaluation of the immovable property with a view to evading tax, finds support from the decision in Varghese. This shows that what was stated about permissibility of circulars to deviate from the provisions of the Act was not one which was affirmed by the Constitution Bench.No doubt that it is an equally settled that the circulars issued by the Board in exercise of its powers under Section 119 of the Act would be binding on the Taxing authorities, even if they deviate from the provisions of the Act, so long as they seek to mitigate the rigor of the particular Section for the benefit of the assessee. The reference in this respect be made to the decision in Uco Bank, Calcutta .vs. Commissioner of Income Tax, W.B. reported in (1999) 4 SCC 599. However, in the present case, the respondents are not relying on any circular which can be said to mitigate the hardships of assessee. On the contrary, the reliance is sought to be placed on a communication by CBDT to the Commissioner of Income Tax, Pune in support of the contention that the refund is only made gratuitously and independent of the provisions of the Act.25. At the cost of repetition, we have no hesitation in holding that the refund made by the respondents would squarely fall within the ambit of Section 240 of the said Act, inasmuch as Their Lordships in the case of Tata Chemicals (cited supra) have clearly held that the provisions of Section 240 are wide enough and they include all sorts of proceedings. Undisputedly, the tax which was deducted and paid by the assessee was under the provisions of Sections 195 and 201 of the said Act. Undisputedly, the advance tax which was paid was more than the liability to pay the tax. The tax was deducted and paid on an anticipation that the third instalment was to be paid to the non-resident German company. However, after the agreement with the non-resident German company, whereby it had waived the third instalment, the TDS on account of the payment of the third instalment was required to be refunded by the respondent Revenue.26. If the contention as raised by the Revenue is to be accepted, it would result in causing great hardship to the honest taxpayers. If an honest taxpayer on account of anticipated liability deducts more amount of tax and deposits the same and ultimately if it is revealed that there was no liability to pay the tax, then in such a case permitting the Revenue to retain that tax and not to permit refund to the person who has honestly deposited the said amount, would be permitting unjust enrichment of the State and depriving the honest taxpayer of his legitimate due. We find that such an interpretation would not also be permissible in view of public policy.27. In the result, we find that the petitioners case is squarely covered by the provisions of Section 244A(1)(b) of the Act. However, the only question is as to from what date the respondents should be directed to pay the interest. Undisputedly, though the TDS was deducted and deposited at earlier point of time, the agreement between the petitioner and the German company was executed only on 1.7.1992 wherein the German company waived the instalment. However, even after that date, the petitioner waited till 31.1.1994 to make an application for refund. It is only when the petitioner brought to the notice of the respondent authorities that the German company had agreed to waive the third instalment and as such, the petitioner was entitled to refund of the TDS deducted and deposited on account of third instalment, the respondent Revenue would come to know about the same.28. In so far as the submission of Shri Thakur is concerned, we find that in the peculiar facts and circumstances of the case the petitioner would be entitled to refund only from the date on which the petitioner had applied for refund and brought the factual aspect to the notice of the respondent authorities. It is well-settled that the law comes to the assistance of the vigilant and diligent. If the petitioners have chosen to be in slumber for long years, the respondents cannot be fastened with the liability for a period earlier to the date on which the petitioners have woken and brought this factual position to the notice of the respondents.29. In that view of the matter, we find that in the interest of justice, it would be appropriate to restrict the claim of the petitioner for interest in accordance with the provisions of Section 244A from 31.1.1994 till the date on which the actual amount was paid to the petitioners. | 1[ds]10. In the light of the aforesaid import of subsection (7) of Section 2, it will be relevant to refer to the provisions of Sections 163160 of the said Act. The perusal of clause (b) ofsubsection (1) of Section163 would reveal that for the purposes of the said Act, in relation to anany person in India who has any business connection with thewould be an agent. Similarly, any person in India from or through whom the nonresident has received directly or indirectly any income would be an agent for the purposes of the said Act in relation to such aThe perusal of Section 160 would reveal that clause (i) provides that in respect ofnonresident specified in subsection (1) of9, an agent of theincluding a person who is treated as an agent under Section 163 would be a representative assessee for the purposes of the said Act. It is not in dispute that the income with which we are concerned in the present matter, is squarely covered bysubsection (1) of Section9 of the said Act. It is also not in dispute that the petitioners had a business connection with the said nonresident German company. It is also not in dispute that the income which the Germancompany had received or was entitled to receive was directly through the present petitioners. In that view of the matter, we find that the present petitioner would squarely fall within(b) of Section 2(7) of the said Act.In the background of the aforesaid legal provisions, let us examine the factual position as is appearing in the present matter. The position that would emerge is that the petitioner had entered into an agreement with the Germancompany for supply of technical knowhow. It had agreed to pay the amount to the said company in three instalments. Out of the three instalments, the first two instalments were paid to the German company. The German company failed to supply further technical knowhow and as such, agreed to waive the third instalment and as such, the said amount was not paid to the German company. The petitioner had deducted TDS as was required under Section 195 for all three instalments and also deposited the said TDS on account of all the three instalments with the Revenue as required under Section 201. If the petitioner had failed to deduct the amount or after deducting failed to deposit the same with the Revenue, he would have squarely fallen in the term of assessee in default as is provided in Section 201. We are, therefore, also of the considered view that the petitioner would also be covered by(c) of Clause 7 of Section 2 of the said Act.14. As such, the petitioner would fall in both the clauses (b)(c) of Clause 7 of Section 2 and would be an assessee within the meaning of the said Act. In that view of the matter, we find that the view taken by the respondent Department that the petitioner was not an assessee and as such, not entitled to apply for refund or interest is not a correct view in law.We further find that the contention of the Revenue that the CBDT had gratuitously granted refund and, therefore, the petitioners are not entitled to interest thereon is without substance.At the cost of repetition, we have no hesitation in holding that the refund made by the respondents would squarely fall within the ambit of Section 240 of the said Act, inasmuch as Their Lordships in the case of Tata Chemicals (cited supra) have clearly held that the provisions of Section 240 are wide enough and they include all sorts of proceedings. Undisputedly, the tax which was deducted and paid by the assessee was under the provisions of Sections 195 and 201 of the said Act. Undisputedly, the advance tax which was paid was more than the liability to pay the tax. The tax was deducted and paid on an anticipation that the third instalment was to be paid to thenonresident German company.However, after the agreement with theGerman company, whereby it had waived the third instalment, the TDS on account of the payment of the third instalment was required to be refunded by the respondent Revenue.In the result, we find that the petitioners case is squarely covered by the provisions of Section 244A(1)(b) of the Act. However, the only question is as to from what date the respondents should be directed to pay the interest. Undisputedly, though the TDS was deducted and deposited at earlier point of time, the agreement between the petitioner and the German company was executed only on 1.7.1992 wherein the German company waived the instalment. However, even after that date, the petitioner waited till 31.1.1994 to make an application for refund. It is only when the petitioner brought to the notice of the respondent authorities that the German company had agreed to waive the third instalment and as such, the petitioner was entitled to refund of the TDS deducted and deposited on account of third instalment, the respondent Revenue would come to know about the same.28. In so far as the submission of Shri Thakur is concerned, we find that in the peculiar facts and circumstances of the case the petitioner would be entitled to refund only from the date on which the petitioner had applied for refund and brought the factual aspect to the notice of the respondent authorities. It isthat the law comes to the assistance of the vigilant and diligent. If the petitioners have chosen to be in slumber for long years, the respondents cannot be fastened with the liability for a period earlier to the date on which the petitioners have woken and brought this factual position to the notice of the respondents.29. In that view of the matter, we find that in the interest of justice, it would be appropriate to restrict the claim of the petitioner for interest in accordance with the provisions of Section 244A from 31.1.1994 till the date on which the actual amount was paid to the petitioners. | 1 | 6,788 | 1,105 | ### 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:
Apex Court in the case of Kerala Financial Corporation v. Commissioner of Income Tax reported in AIR 1994 SC 2416 (cited supra), which read as under :13. Shri Salve would however, urge that a little different view of the matter had been taken by two-Judge Bench of this Court in K.P. Varghese v. Income Tax Officer, 131 ITR 597 : (AIR 1981 SC 1922 ) in which it was observed at page 613 that circulars issued under the aforesaid provisions are binding on all officers "even if they deviate from the provisions of the Act". As to what was sought to be conveyed by the word deviate is not clear to us. This much, however, is apparent that this Court did not mean, while saying as above, that circulars can override any provision of the Act or to put in the language of Mukharji, J. detract from the Act. Though Shri Salve has urged that the decision in Varghese has been affirmed by a Constitution Bench in C.B. Gautam v. Union of India, (1993) 1 SCC 78 , reference to that case shows that Vargheses case was mentioned in para 22 while stating that the conclusion arrived at, namely, that the provisions of Chapter XXC of the Act are to be resorted to only where there is significant undervaluation of the immovable property with a view to evading tax, finds support from the decision in Varghese. This shows that what was stated about permissibility of circulars to deviate from the provisions of the Act was not one which was affirmed by the Constitution Bench.No doubt that it is an equally settled that the circulars issued by the Board in exercise of its powers under Section 119 of the Act would be binding on the Taxing authorities, even if they deviate from the provisions of the Act, so long as they seek to mitigate the rigor of the particular Section for the benefit of the assessee. The reference in this respect be made to the decision in Uco Bank, Calcutta .vs. Commissioner of Income Tax, W.B. reported in (1999) 4 SCC 599. However, in the present case, the respondents are not relying on any circular which can be said to mitigate the hardships of assessee. On the contrary, the reliance is sought to be placed on a communication by CBDT to the Commissioner of Income Tax, Pune in support of the contention that the refund is only made gratuitously and independent of the provisions of the Act.25. At the cost of repetition, we have no hesitation in holding that the refund made by the respondents would squarely fall within the ambit of Section 240 of the said Act, inasmuch as Their Lordships in the case of Tata Chemicals (cited supra) have clearly held that the provisions of Section 240 are wide enough and they include all sorts of proceedings. Undisputedly, the tax which was deducted and paid by the assessee was under the provisions of Sections 195 and 201 of the said Act. Undisputedly, the advance tax which was paid was more than the liability to pay the tax. The tax was deducted and paid on an anticipation that the third instalment was to be paid to the non-resident German company. However, after the agreement with the non-resident German company, whereby it had waived the third instalment, the TDS on account of the payment of the third instalment was required to be refunded by the respondent Revenue.26. If the contention as raised by the Revenue is to be accepted, it would result in causing great hardship to the honest taxpayers. If an honest taxpayer on account of anticipated liability deducts more amount of tax and deposits the same and ultimately if it is revealed that there was no liability to pay the tax, then in such a case permitting the Revenue to retain that tax and not to permit refund to the person who has honestly deposited the said amount, would be permitting unjust enrichment of the State and depriving the honest taxpayer of his legitimate due. We find that such an interpretation would not also be permissible in view of public policy.27. In the result, we find that the petitioners case is squarely covered by the provisions of Section 244A(1)(b) of the Act. However, the only question is as to from what date the respondents should be directed to pay the interest. Undisputedly, though the TDS was deducted and deposited at earlier point of time, the agreement between the petitioner and the German company was executed only on 1.7.1992 wherein the German company waived the instalment. However, even after that date, the petitioner waited till 31.1.1994 to make an application for refund. It is only when the petitioner brought to the notice of the respondent authorities that the German company had agreed to waive the third instalment and as such, the petitioner was entitled to refund of the TDS deducted and deposited on account of third instalment, the respondent Revenue would come to know about the same.28. In so far as the submission of Shri Thakur is concerned, we find that in the peculiar facts and circumstances of the case the petitioner would be entitled to refund only from the date on which the petitioner had applied for refund and brought the factual aspect to the notice of the respondent authorities. It is well-settled that the law comes to the assistance of the vigilant and diligent. If the petitioners have chosen to be in slumber for long years, the respondents cannot be fastened with the liability for a period earlier to the date on which the petitioners have woken and brought this factual position to the notice of the respondents.29. In that view of the matter, we find that in the interest of justice, it would be appropriate to restrict the claim of the petitioner for interest in accordance with the provisions of Section 244A from 31.1.1994 till the date on which the actual amount was paid to the petitioners.
### Response:
1
### Explanation:
In the light of the aforesaid import of subsection (7) of Section 2, it will be relevant to refer to the provisions of Sections 163160 of the said Act. The perusal of clause (b) ofsubsection (1) of Section163 would reveal that for the purposes of the said Act, in relation to anany person in India who has any business connection with thewould be an agent. Similarly, any person in India from or through whom the nonresident has received directly or indirectly any income would be an agent for the purposes of the said Act in relation to such aThe perusal of Section 160 would reveal that clause (i) provides that in respect ofnonresident specified in subsection (1) of9, an agent of theincluding a person who is treated as an agent under Section 163 would be a representative assessee for the purposes of the said Act. It is not in dispute that the income with which we are concerned in the present matter, is squarely covered bysubsection (1) of Section9 of the said Act. It is also not in dispute that the petitioners had a business connection with the said nonresident German company. It is also not in dispute that the income which the Germancompany had received or was entitled to receive was directly through the present petitioners. In that view of the matter, we find that the present petitioner would squarely fall within(b) of Section 2(7) of the said Act.In the background of the aforesaid legal provisions, let us examine the factual position as is appearing in the present matter. The position that would emerge is that the petitioner had entered into an agreement with the Germancompany for supply of technical knowhow. It had agreed to pay the amount to the said company in three instalments. Out of the three instalments, the first two instalments were paid to the German company. The German company failed to supply further technical knowhow and as such, agreed to waive the third instalment and as such, the said amount was not paid to the German company. The petitioner had deducted TDS as was required under Section 195 for all three instalments and also deposited the said TDS on account of all the three instalments with the Revenue as required under Section 201. If the petitioner had failed to deduct the amount or after deducting failed to deposit the same with the Revenue, he would have squarely fallen in the term of assessee in default as is provided in Section 201. We are, therefore, also of the considered view that the petitioner would also be covered by(c) of Clause 7 of Section 2 of the said Act.14. As such, the petitioner would fall in both the clauses (b)(c) of Clause 7 of Section 2 and would be an assessee within the meaning of the said Act. In that view of the matter, we find that the view taken by the respondent Department that the petitioner was not an assessee and as such, not entitled to apply for refund or interest is not a correct view in law.We further find that the contention of the Revenue that the CBDT had gratuitously granted refund and, therefore, the petitioners are not entitled to interest thereon is without substance.At the cost of repetition, we have no hesitation in holding that the refund made by the respondents would squarely fall within the ambit of Section 240 of the said Act, inasmuch as Their Lordships in the case of Tata Chemicals (cited supra) have clearly held that the provisions of Section 240 are wide enough and they include all sorts of proceedings. Undisputedly, the tax which was deducted and paid by the assessee was under the provisions of Sections 195 and 201 of the said Act. Undisputedly, the advance tax which was paid was more than the liability to pay the tax. The tax was deducted and paid on an anticipation that the third instalment was to be paid to thenonresident German company.However, after the agreement with theGerman company, whereby it had waived the third instalment, the TDS on account of the payment of the third instalment was required to be refunded by the respondent Revenue.In the result, we find that the petitioners case is squarely covered by the provisions of Section 244A(1)(b) of the Act. However, the only question is as to from what date the respondents should be directed to pay the interest. Undisputedly, though the TDS was deducted and deposited at earlier point of time, the agreement between the petitioner and the German company was executed only on 1.7.1992 wherein the German company waived the instalment. However, even after that date, the petitioner waited till 31.1.1994 to make an application for refund. It is only when the petitioner brought to the notice of the respondent authorities that the German company had agreed to waive the third instalment and as such, the petitioner was entitled to refund of the TDS deducted and deposited on account of third instalment, the respondent Revenue would come to know about the same.28. In so far as the submission of Shri Thakur is concerned, we find that in the peculiar facts and circumstances of the case the petitioner would be entitled to refund only from the date on which the petitioner had applied for refund and brought the factual aspect to the notice of the respondent authorities. It isthat the law comes to the assistance of the vigilant and diligent. If the petitioners have chosen to be in slumber for long years, the respondents cannot be fastened with the liability for a period earlier to the date on which the petitioners have woken and brought this factual position to the notice of the respondents.29. In that view of the matter, we find that in the interest of justice, it would be appropriate to restrict the claim of the petitioner for interest in accordance with the provisions of Section 244A from 31.1.1994 till the date on which the actual amount was paid to the petitioners.
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M/s. Ashok Paper Kamgar Union & Others Vs. Dharam Godha ?& Others | into between the petitioner, namely Ashok Paper Kamgar Union Government of Bihar and NCFL. The material on record shows that though several meetings were held, but for some reason or the order, the agreement could not fructify and could not be signed. Shri H.C. Sirohi, Labour Commissioner, Bihar, wrote a letter to the Secretary, Industrial Development Department, Government of Bihar on 29.1.1998 complaining that the behaviour of the President of the Petitioner Union had been non-cooperative on many occasions. He frequently tried to create hindrances and showed no interest to reach a settlement for tri-partite agreement. He sent another letter in this contention on 4.5.1998 reiterating that Shri Umadhar Prasad Singh, President of Ashok Paper Kamgar Union was creating hurdles in arriving at a tri-partite agreement. The Labour Commissioner also sent a report that his department had been receiving representations from Ashok Paper Mill Mazdoor Panchayat, which was the only recognised Union, about their claim. After considering the report of the Labour Commissioner, the Government of Bihar gave its no objection by its letter dated 14.7.1998 and thereafter the management entered into an agreement with the aforesaid recognized Union, namely, Ashok Paper Mill Mazdoor Panchayat. In paras 13 and 17 of the Contempt Petition, it is alleged that on account of keeping out of the Petitioner and its President (Shri Umadhar Prasad Singh) in the meetings of the Monitoring Committee and on account of their non-involvement in the opening and running of the unit, there has been a dis-obedience of the orders passed by this Court. The material on record shows that as Shri Umadhar Prasad Singh was not cooperating and was creating hindrance in arriving at a tri-partite agreement, the Labour Commissioner wrote to the Government of Bihar for signing of the agreement with Ashok Paper Mill Mazdoor Panchayat, which was a recognised Union. The Government of Bihar also gave its consent for the same. In these circumstances, the fact that the agreement was signed only with Ashok Paper Mill Mazdoor Panchayat cannot amount to wilful disobedience of the orders passed by this Court. 16. Under the Scheme which was formulated on 28.6.1996 and had been approved by this Court by the order dated 8.7.1996, NCFL had to pay a fixed consideration of Rs. 6 crores over a period of four years in 16 quarterly instalements of Rs. 37.5. lakhs each. the NCFL has no doubt default in payment of the aforesaid amount as it has paid only two instalments of Rs. 37.5 lakhs each. The IDBI has disbursed a term loan of Rs. 15 crores towards Phase I of the revival scheme. The Department of Industrial Policy and Promotion, Ministry of Commerce and Industry, Government of India in cooperating with Department of Banking was instrument in obtaining the sanction for additional term loan of Rs. 11 crores from IDBI and a working capital of Rs. 9.25 crores from United Bank of India. Therefore, so far as the IDBI and the Department of Industrial Policy and Promotion, Ministry of Commerce and Industry, Government of India are concerned, they have complied with the directions issued by this Court and have also taken all other steps which they were required to take for the revival of the unit. According to the affidavit filed by Shri Dharam Godha, NCFL has invested Rs. 18 crores towards promoter’s contribution which was much more than the amount contemplated in Phase I of the Scheme. It is also averred therein that for the loan of Rs. 15 crores given by IDBI, security of properties situate in Mumbai worth Rs. 10 crores, other than that of the mill, had been furnished by NCFL. Though the entire amount of consideration has not been paid by the NCFL but they claim to have made substantial investment for running of the unit.17. Section 2(b) of Contempt of Courts Act defines "civil contempt’ and it means willful disobedience to any judgment, decree, direction, order, writ or other process of a Court or willful breach of undertaking given to a Court. "Wilful’ means an act or omission which is done voluntarily and intentionally and with the specific intent to do something the law forbids or with the specific intent to fail to do something the law requires to be done, that is to say with bad purpose either to disobey or to disregard the law. It signifies a deliberate action done with evil intent or with a bad motive or purpose. Therefore, in order to constitute contempt the order of the Court must be of such a nature which is capable of execution by the person charged in normal circumstances. It should not require any extra ordinary effort nor should be dependent, either wholly or in part, upon any act or omission of a third party for its compliance. This has to be judged having regard to the facts and circumstances of each case. The facts mentioned above show that none of the respondents to the petition can be held to be directly responsible if the Scheme which had been formulated by Government of India on 28.6.1996 and had been approved by this Court by the order dated 8.7.1996 could not be implemented in letter and spirit as many factors have contributed to the same. The reasons given for non inclusion of Shri Umadhar Prasad Singh in signing of the agreement appear to be quite plausible. NCFL has undoubtedly not discharged its liability of making payment of its entire liability of Rs. 6 crores. However it has come out with a case that some additional expenditure has been incurred in running the unit. It is not possible to get the complete financial picture only on the basis of the affidavits filed in the present petition. On the material on record, therefore, it is not possible to hold that the charge of having committed contempt of Court on account of alleged non-compliance of the orders passed by this Court on 8.7.1996, 1.5.1997 and 31.7.2000 has been established against any one of the respondents. | 0[ds]16. Under the Scheme which was formulated on 28.6.1996 and had been approved by this Court by the order dated 8.7.1996, NCFL had to pay a fixed consideration of Rs. 6 crores over a period of four years in 16 quarterly instalements of Rs. 37.5. lakhs each. the NCFL has no doubt default in payment of the aforesaid amount as it has paid only two instalments of Rs. 37.5 lakhs each. The IDBI has disbursed a term loan of Rs. 15 crores towards Phase I of the revival scheme. The Department of Industrial Policy and Promotion, Ministry of Commerce and Industry, Government of India in cooperating with Department of Banking was instrument in obtaining the sanction for additional term loan of Rs. 11 crores from IDBI and a working capital of Rs. 9.25 crores from United Bank of India. Therefore, so far as the IDBI and the Department of Industrial Policy and Promotion, Ministry of Commerce and Industry, Government of India are concerned, they have complied with the directions issued by this Court and have also taken all other steps which they were required to take for the revival of the unit. According to the affidavit filed by Shri Dharam Godha, NCFL has invested Rs. 18 crores towardscontribution which was much more than the amount contemplated in Phase I of the Scheme. It is also averred therein that for the loan of Rs. 15 crores given by IDBI, security of properties situate in Mumbai worth Rs. 10 crores, other than that of the mill, had been furnished by NCFL. Though the entire amount of consideration has not been paid by the NCFL but they claim to have made substantial investment for running of the unit.17. Section 2(b) of Contempt of Courts Act defines "civiland it means willful disobedience to any judgment, decree, direction, order, writ or other process of a Court or willful breach of undertaking given to a Court.means an act or omission which is done voluntarily and intentionally and with the specific intent to do something the law forbids or with the specific intent to fail to do something the law requires to be done, that is to say with bad purpose either to disobey or to disregard the law. It signifies a deliberate action done with evil intent or with a bad motive or purpose. Therefore, in order to constitute contempt the order of the Court must be of such a nature which is capable of execution by the person charged in normal circumstances. It should not require any extra ordinary effort nor should be dependent, either wholly or in part, upon any act or omission of a third party for its compliance. This has to be judged having regard to the facts and circumstances of each case. The facts mentioned above show that none of the respondents to the petition can be held to be directly responsible if the Scheme which had been formulated by Government of India on 28.6.1996 and had been approved by this Court by the order dated 8.7.1996 could not be implemented in letter and spirit as many factors have contributed to the same. The reasons given for non inclusion of Shri Umadhar Prasad Singh in signing of the agreement appear to be quite plausible. NCFL has undoubtedly not discharged its liability of making payment of its entire liability of Rs. 6 crores. However it has come out with a case that some additional expenditure has been incurred in running the unit. It is not possible to get the complete financial picture only on the basis of the affidavits filed in the present petition. On the material on record, therefore, it is not possible to hold that the charge of having committed contempt of Court on account of allegedof the orders passed by this Court on 8.7.1996, 1.5.1997 and 31.7.2000 has been established against any one of the respondents. | 0 | 7,522 | 707 | ### Instruction:
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into between the petitioner, namely Ashok Paper Kamgar Union Government of Bihar and NCFL. The material on record shows that though several meetings were held, but for some reason or the order, the agreement could not fructify and could not be signed. Shri H.C. Sirohi, Labour Commissioner, Bihar, wrote a letter to the Secretary, Industrial Development Department, Government of Bihar on 29.1.1998 complaining that the behaviour of the President of the Petitioner Union had been non-cooperative on many occasions. He frequently tried to create hindrances and showed no interest to reach a settlement for tri-partite agreement. He sent another letter in this contention on 4.5.1998 reiterating that Shri Umadhar Prasad Singh, President of Ashok Paper Kamgar Union was creating hurdles in arriving at a tri-partite agreement. The Labour Commissioner also sent a report that his department had been receiving representations from Ashok Paper Mill Mazdoor Panchayat, which was the only recognised Union, about their claim. After considering the report of the Labour Commissioner, the Government of Bihar gave its no objection by its letter dated 14.7.1998 and thereafter the management entered into an agreement with the aforesaid recognized Union, namely, Ashok Paper Mill Mazdoor Panchayat. In paras 13 and 17 of the Contempt Petition, it is alleged that on account of keeping out of the Petitioner and its President (Shri Umadhar Prasad Singh) in the meetings of the Monitoring Committee and on account of their non-involvement in the opening and running of the unit, there has been a dis-obedience of the orders passed by this Court. The material on record shows that as Shri Umadhar Prasad Singh was not cooperating and was creating hindrance in arriving at a tri-partite agreement, the Labour Commissioner wrote to the Government of Bihar for signing of the agreement with Ashok Paper Mill Mazdoor Panchayat, which was a recognised Union. The Government of Bihar also gave its consent for the same. In these circumstances, the fact that the agreement was signed only with Ashok Paper Mill Mazdoor Panchayat cannot amount to wilful disobedience of the orders passed by this Court. 16. Under the Scheme which was formulated on 28.6.1996 and had been approved by this Court by the order dated 8.7.1996, NCFL had to pay a fixed consideration of Rs. 6 crores over a period of four years in 16 quarterly instalements of Rs. 37.5. lakhs each. the NCFL has no doubt default in payment of the aforesaid amount as it has paid only two instalments of Rs. 37.5 lakhs each. The IDBI has disbursed a term loan of Rs. 15 crores towards Phase I of the revival scheme. The Department of Industrial Policy and Promotion, Ministry of Commerce and Industry, Government of India in cooperating with Department of Banking was instrument in obtaining the sanction for additional term loan of Rs. 11 crores from IDBI and a working capital of Rs. 9.25 crores from United Bank of India. Therefore, so far as the IDBI and the Department of Industrial Policy and Promotion, Ministry of Commerce and Industry, Government of India are concerned, they have complied with the directions issued by this Court and have also taken all other steps which they were required to take for the revival of the unit. According to the affidavit filed by Shri Dharam Godha, NCFL has invested Rs. 18 crores towards promoter’s contribution which was much more than the amount contemplated in Phase I of the Scheme. It is also averred therein that for the loan of Rs. 15 crores given by IDBI, security of properties situate in Mumbai worth Rs. 10 crores, other than that of the mill, had been furnished by NCFL. Though the entire amount of consideration has not been paid by the NCFL but they claim to have made substantial investment for running of the unit.17. Section 2(b) of Contempt of Courts Act defines "civil contempt’ and it means willful disobedience to any judgment, decree, direction, order, writ or other process of a Court or willful breach of undertaking given to a Court. "Wilful’ means an act or omission which is done voluntarily and intentionally and with the specific intent to do something the law forbids or with the specific intent to fail to do something the law requires to be done, that is to say with bad purpose either to disobey or to disregard the law. It signifies a deliberate action done with evil intent or with a bad motive or purpose. Therefore, in order to constitute contempt the order of the Court must be of such a nature which is capable of execution by the person charged in normal circumstances. It should not require any extra ordinary effort nor should be dependent, either wholly or in part, upon any act or omission of a third party for its compliance. This has to be judged having regard to the facts and circumstances of each case. The facts mentioned above show that none of the respondents to the petition can be held to be directly responsible if the Scheme which had been formulated by Government of India on 28.6.1996 and had been approved by this Court by the order dated 8.7.1996 could not be implemented in letter and spirit as many factors have contributed to the same. The reasons given for non inclusion of Shri Umadhar Prasad Singh in signing of the agreement appear to be quite plausible. NCFL has undoubtedly not discharged its liability of making payment of its entire liability of Rs. 6 crores. However it has come out with a case that some additional expenditure has been incurred in running the unit. It is not possible to get the complete financial picture only on the basis of the affidavits filed in the present petition. On the material on record, therefore, it is not possible to hold that the charge of having committed contempt of Court on account of alleged non-compliance of the orders passed by this Court on 8.7.1996, 1.5.1997 and 31.7.2000 has been established against any one of the respondents.
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16. Under the Scheme which was formulated on 28.6.1996 and had been approved by this Court by the order dated 8.7.1996, NCFL had to pay a fixed consideration of Rs. 6 crores over a period of four years in 16 quarterly instalements of Rs. 37.5. lakhs each. the NCFL has no doubt default in payment of the aforesaid amount as it has paid only two instalments of Rs. 37.5 lakhs each. The IDBI has disbursed a term loan of Rs. 15 crores towards Phase I of the revival scheme. The Department of Industrial Policy and Promotion, Ministry of Commerce and Industry, Government of India in cooperating with Department of Banking was instrument in obtaining the sanction for additional term loan of Rs. 11 crores from IDBI and a working capital of Rs. 9.25 crores from United Bank of India. Therefore, so far as the IDBI and the Department of Industrial Policy and Promotion, Ministry of Commerce and Industry, Government of India are concerned, they have complied with the directions issued by this Court and have also taken all other steps which they were required to take for the revival of the unit. According to the affidavit filed by Shri Dharam Godha, NCFL has invested Rs. 18 crores towardscontribution which was much more than the amount contemplated in Phase I of the Scheme. It is also averred therein that for the loan of Rs. 15 crores given by IDBI, security of properties situate in Mumbai worth Rs. 10 crores, other than that of the mill, had been furnished by NCFL. Though the entire amount of consideration has not been paid by the NCFL but they claim to have made substantial investment for running of the unit.17. Section 2(b) of Contempt of Courts Act defines "civiland it means willful disobedience to any judgment, decree, direction, order, writ or other process of a Court or willful breach of undertaking given to a Court.means an act or omission which is done voluntarily and intentionally and with the specific intent to do something the law forbids or with the specific intent to fail to do something the law requires to be done, that is to say with bad purpose either to disobey or to disregard the law. It signifies a deliberate action done with evil intent or with a bad motive or purpose. Therefore, in order to constitute contempt the order of the Court must be of such a nature which is capable of execution by the person charged in normal circumstances. It should not require any extra ordinary effort nor should be dependent, either wholly or in part, upon any act or omission of a third party for its compliance. This has to be judged having regard to the facts and circumstances of each case. The facts mentioned above show that none of the respondents to the petition can be held to be directly responsible if the Scheme which had been formulated by Government of India on 28.6.1996 and had been approved by this Court by the order dated 8.7.1996 could not be implemented in letter and spirit as many factors have contributed to the same. The reasons given for non inclusion of Shri Umadhar Prasad Singh in signing of the agreement appear to be quite plausible. NCFL has undoubtedly not discharged its liability of making payment of its entire liability of Rs. 6 crores. However it has come out with a case that some additional expenditure has been incurred in running the unit. It is not possible to get the complete financial picture only on the basis of the affidavits filed in the present petition. On the material on record, therefore, it is not possible to hold that the charge of having committed contempt of Court on account of allegedof the orders passed by this Court on 8.7.1996, 1.5.1997 and 31.7.2000 has been established against any one of the respondents.
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ANDHRA KESARI COLLEGE OF EDUCATION Vs. THE STATE OF ANDHRA PRADESH AND ORS | determining the minority status of candidates seeking admission in the Management Quota. The G.O.M. provides that the SSC/Transfer Certificate should be the basis for making a valid claim by a candidate that he or she belongs to the minority religion, to be eligible for admission.Statistical data was placed on record before the High Court, which is recorded in the impugned judgment, which highlights that Baptism Certificates were being obtained by students from other communities, so as to obtain admission in the Management Quota of Minority Educational Institutions.In the additional counter affidavit filed by the Respondent – State before the High Court, it was revealed that a large number of admissions were made on the basis of conversion certificates. The enquiry conducted revealed that 67 out of 200 students in New College of Education, Nizamabad; 90 out of 136 in Rayalseema College of Education, Kurnool; 82 out of 102 in Bhongir College of Education, Bhongir; 60 out of 85 in Jyoti College of Education, Siricilla; 91 out of 102 in Anebesent College of Education, Khammam; 85 out of 102 in Trinity College of Education, were admitted on the basis of Baptism Certificates. In most of these cases, the candidates declared themselves to be Christians subsequent to the date of submitting their applications for the Entrance Test.Considering the extensive misuse of such certificates, the State Government deemed it appropriate to issue G.O.M. No. 57 dated 21.03.2005 making the SCC Certificate as the basis for determining the minority status of a student, in order to prevent misuse of Conversion Certificates by ineligible candidates, so as to ensure that only bona fide students were granted admission in the Management Quota of Minority Institutions.G.O.M. No. 57 prescribed a uniform criteria for determination of the status of all minority students. It safeguards the interest of genuine minority students, so that their seats are not taken away by those who resort to false conversions over-night, for the purpose of securing admission. This would preserve the minority character of the Institution, rather than act as an intrusion of the same.5.2. The impugned G.O.Ms grant full autonomy to the Minority Educational Institutions to provide quality education for the minority community, by filling up 85% seats with meritorious minority students, and granting them priority for admission in such institutions.5.3. With respect to G.O.M. No. 98, the requirement to fill up the vacant seats by non-minority candidates was based on statistical data which showed that the number of colleges, and the seats available for minorities, were highly disproportionate, and far in excess of the population as per the 2001 census. The distinct possibility of seats remaining unfilled in the Minority Institutions every year, would not be in the interest of the Minority Educational Institutions.With this object in mind, G.O.M. No. 98 was issued to ensure that the vacant seats in the 85% Management Quota did not remain unfilled during any academic year. The G.O.M. merely stipulated that if the said Quota remained unfilled by minority students, it would be filled from the merit list of successful candidates, as allotted by the Convenor, Ed. CET to promote excellence in education. By this process, an opportunity was granted to the CET qualified non- minority candidates to secure quality education, which would subserve the interest of the nation.This G.O.M. does not, in any manner, interfere with the right of a Minority Educational Institution to manage its affairs for the benefit of the Minority Community. On the contrary, it ensures that vacant seats are not wasted, and are filled up by meritorious and deserving candidates.5.4. Furthermore, the presence of a Government Nominee in the counselling process was to ensure that the admission process is fair, transparent, and non- exploitative, and is based on merit. This would not interfere with the admission process of the minority institutions in any manner.5.5. The impugned G.O.Ms are not violative of Article 30(1) of the Constitution of India. Article 30(1) states that all minorities, whether based on religion or language, shall have the right to establish and administer educational institutions of their choice. The impugned G.O.Ms do not whittle down the right of the minority institutions in any manner.The right of minority institutions is not absolute, and is amenable to regulation. The protection granted to Minority Educational Institutions to admit students of their choice is subject to reasonable restrictions.In T.M.A. Pai Foundation and Ors. v. State of Karnataka and Ors., (2002) 8 SCC 481 this Court held that :–?The right to admit students being an essential facet of the right to administer educational institutions of their choice, as contemplated under Article 30 of the Constitution, the state government or the university may not be entitled to interfere with that right, so long as the admission to the unaided educational institutions is on a transparent basis and the merit is adequately taken care of. The right to administer, not being absolute, there could be regulatory measures for ensuring educational standards and maintaining. excellence thereof, and it is more so in the matter of admissions to professional institutions.?(emphasis supplied)5.6. The impugned G.O.Ms do not impose any fetters on the freedom of the minority institutions to profess, propagate, and practice their religion, or the right to establish and administer their educational institutions. The criteria has been prescribed only for the purpose of determining the minority status of the candidates for admission to the B. Ed. Course. This would not amount to a restriction, or impose any fetters in the matter of an individual?s choice of religion.5.7. The contention of the Petitioner – Institution that the impugned G.O.Ms are unconstitutional, and violative of their fundamental rights, is liable to be rejected.5.8. The impugned G.O.Ms were brought into force w.e.f. the academic year 2006-2007. These G.O.Ms have remained in force ever since. All Minority Educational Institutions in the State of Andhra Pradesh, including the Petitioner Institution, have been following these G.O.Ms since the past over 13 academic years without any complaint. There is no justifiable reason why the same should be discontinued at this stage. | 0[ds]The impugned G.O.Ms do not impose any fetters on the freedom of the minority institutions to profess, propagate, and practice their religion, or the right to establish and administer their educational institutions. The criteria has been prescribed only for the purpose of determining the minority status of the candidates for admission to the B. Ed. Course. This would not amount to a restriction, or impose any fetters in the matter of an individual?s choice of religion.5.7. The contention of the Petitioner – Institution that the impugned G.O.Ms are unconstitutional, and violative of their fundamental rights, is liable to be rejected.5.8. The impugned G.O.Ms were brought into force w.e.f. the academic year 2006-2007. These G.O.Ms have remained in force ever since. All Minority Educational Institutions in the State of Andhra Pradesh, including the Petitioner Institution, have been following these G.O.Ms since the past over 13 academic years without any complaint. There is no justifiable reason why the same should be discontinued at this stage. | 0 | 2,080 | 187 | ### Instruction:
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determining the minority status of candidates seeking admission in the Management Quota. The G.O.M. provides that the SSC/Transfer Certificate should be the basis for making a valid claim by a candidate that he or she belongs to the minority religion, to be eligible for admission.Statistical data was placed on record before the High Court, which is recorded in the impugned judgment, which highlights that Baptism Certificates were being obtained by students from other communities, so as to obtain admission in the Management Quota of Minority Educational Institutions.In the additional counter affidavit filed by the Respondent – State before the High Court, it was revealed that a large number of admissions were made on the basis of conversion certificates. The enquiry conducted revealed that 67 out of 200 students in New College of Education, Nizamabad; 90 out of 136 in Rayalseema College of Education, Kurnool; 82 out of 102 in Bhongir College of Education, Bhongir; 60 out of 85 in Jyoti College of Education, Siricilla; 91 out of 102 in Anebesent College of Education, Khammam; 85 out of 102 in Trinity College of Education, were admitted on the basis of Baptism Certificates. In most of these cases, the candidates declared themselves to be Christians subsequent to the date of submitting their applications for the Entrance Test.Considering the extensive misuse of such certificates, the State Government deemed it appropriate to issue G.O.M. No. 57 dated 21.03.2005 making the SCC Certificate as the basis for determining the minority status of a student, in order to prevent misuse of Conversion Certificates by ineligible candidates, so as to ensure that only bona fide students were granted admission in the Management Quota of Minority Institutions.G.O.M. No. 57 prescribed a uniform criteria for determination of the status of all minority students. It safeguards the interest of genuine minority students, so that their seats are not taken away by those who resort to false conversions over-night, for the purpose of securing admission. This would preserve the minority character of the Institution, rather than act as an intrusion of the same.5.2. The impugned G.O.Ms grant full autonomy to the Minority Educational Institutions to provide quality education for the minority community, by filling up 85% seats with meritorious minority students, and granting them priority for admission in such institutions.5.3. With respect to G.O.M. No. 98, the requirement to fill up the vacant seats by non-minority candidates was based on statistical data which showed that the number of colleges, and the seats available for minorities, were highly disproportionate, and far in excess of the population as per the 2001 census. The distinct possibility of seats remaining unfilled in the Minority Institutions every year, would not be in the interest of the Minority Educational Institutions.With this object in mind, G.O.M. No. 98 was issued to ensure that the vacant seats in the 85% Management Quota did not remain unfilled during any academic year. The G.O.M. merely stipulated that if the said Quota remained unfilled by minority students, it would be filled from the merit list of successful candidates, as allotted by the Convenor, Ed. CET to promote excellence in education. By this process, an opportunity was granted to the CET qualified non- minority candidates to secure quality education, which would subserve the interest of the nation.This G.O.M. does not, in any manner, interfere with the right of a Minority Educational Institution to manage its affairs for the benefit of the Minority Community. On the contrary, it ensures that vacant seats are not wasted, and are filled up by meritorious and deserving candidates.5.4. Furthermore, the presence of a Government Nominee in the counselling process was to ensure that the admission process is fair, transparent, and non- exploitative, and is based on merit. This would not interfere with the admission process of the minority institutions in any manner.5.5. The impugned G.O.Ms are not violative of Article 30(1) of the Constitution of India. Article 30(1) states that all minorities, whether based on religion or language, shall have the right to establish and administer educational institutions of their choice. The impugned G.O.Ms do not whittle down the right of the minority institutions in any manner.The right of minority institutions is not absolute, and is amenable to regulation. The protection granted to Minority Educational Institutions to admit students of their choice is subject to reasonable restrictions.In T.M.A. Pai Foundation and Ors. v. State of Karnataka and Ors., (2002) 8 SCC 481 this Court held that :–?The right to admit students being an essential facet of the right to administer educational institutions of their choice, as contemplated under Article 30 of the Constitution, the state government or the university may not be entitled to interfere with that right, so long as the admission to the unaided educational institutions is on a transparent basis and the merit is adequately taken care of. The right to administer, not being absolute, there could be regulatory measures for ensuring educational standards and maintaining. excellence thereof, and it is more so in the matter of admissions to professional institutions.?(emphasis supplied)5.6. The impugned G.O.Ms do not impose any fetters on the freedom of the minority institutions to profess, propagate, and practice their religion, or the right to establish and administer their educational institutions. The criteria has been prescribed only for the purpose of determining the minority status of the candidates for admission to the B. Ed. Course. This would not amount to a restriction, or impose any fetters in the matter of an individual?s choice of religion.5.7. The contention of the Petitioner – Institution that the impugned G.O.Ms are unconstitutional, and violative of their fundamental rights, is liable to be rejected.5.8. The impugned G.O.Ms were brought into force w.e.f. the academic year 2006-2007. These G.O.Ms have remained in force ever since. All Minority Educational Institutions in the State of Andhra Pradesh, including the Petitioner Institution, have been following these G.O.Ms since the past over 13 academic years without any complaint. There is no justifiable reason why the same should be discontinued at this stage.
### Response:
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### Explanation:
The impugned G.O.Ms do not impose any fetters on the freedom of the minority institutions to profess, propagate, and practice their religion, or the right to establish and administer their educational institutions. The criteria has been prescribed only for the purpose of determining the minority status of the candidates for admission to the B. Ed. Course. This would not amount to a restriction, or impose any fetters in the matter of an individual?s choice of religion.5.7. The contention of the Petitioner – Institution that the impugned G.O.Ms are unconstitutional, and violative of their fundamental rights, is liable to be rejected.5.8. The impugned G.O.Ms were brought into force w.e.f. the academic year 2006-2007. These G.O.Ms have remained in force ever since. All Minority Educational Institutions in the State of Andhra Pradesh, including the Petitioner Institution, have been following these G.O.Ms since the past over 13 academic years without any complaint. There is no justifiable reason why the same should be discontinued at this stage.
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KAPILABEN Vs. ASHOK KUMAR JAYANTILAL SHETH THROUGH POA GOPALBHAI MADHUSUDAN PATEL | enforced by law unless and until that event has happened.? ?35. When contracts become void, which are contingent on happening of specified event within fixed time.—Contingent contracts to do or not to do anything, if a specified uncertain event happens within a fixed time, become void if, at the expiration of the time fixed, such event has not happened, or if, before the time fixed, such event becomes impossible.? The 1987 agreements are clearly contingent contracts inasmuch as they could only be enforced had the original vendees obtained the right to get the sale deed executed, and taken possession of the suit property as per the terms of the 1986 agreement. Once the 1986 agreement was cancelled by the Appellants, the original vendees? rights thereunder ceased to exist. 17. Respondent Nos. 1 contend that the Power-of-Attorney dated 11.11.2001 (supra) in favour of Mr. Dhananjay Patel shows that the 1986 agreement was not cancelled and that the original vendees continued to retain their right to get the sale deed executed in their favour. It was brought to our notice by the Appellants that the aforesaid Power-of-Attorney was subsequently cancelled by the original vendees on 6.6.2003, on the ground that Mr. Dhananjay Patel had obtained the Power-of-Attorney through misrepresentation. However, it is important to note that the original vendees have stated in the aforesaid cancellation notice that they have ‘joint ownership? of the suit property. Therefore we find some merit in the argument that the Appellants and the original vendees are acting in collusion. Nevertheless, regardless of what may be stated in the Power-of-Attorney, it has to be seen whether the original vendees have legally acquired any rights in the suit property. Respondent Nos. 1 have admitted in their plaints that the Town Planning Scheme was finalized prior to the 1986 agreement. Hence the deadline stipulated under the 1986 agreement for payment of remaining consideration by the original vendees, i.e., within three months of finalization of the Scheme, has long since lapsed. Since the original vendees never paid the remaining consideration within the time specified in the 1986 agreement, their rights thereunder never fructified. Even assuming that the original vendees acquired some interest in the suit property, the subsequent withdrawal of the suit SCS No. 194/1988 shows that the original vendees do not intend to enforce the 1986 agreement. The trial court has found that though the suit property de jure vested with the concerned government authority under the Town Planning Scheme, the de facto possession of the property remains with the Appellants and the original vendees have not taken possession thereof. Furthermore, both the trial court and the learned District Judge have on facts found that the original vendees have not shown any readiness or willingness to pay the remaining consideration to the Appellants. Hence since the original vendees have abandoned their rights under the 1986 agreement, enforcement of the 1987 agreements has become virtually impossible and Respondent Nos. 1 cannot seek specific performance of the latter. Consequently the 1987 agreements are void and unenforceable as provided under Sections 32 and 35 of the Contract Act. 18. It is relevant to note at this juncture that Respondent Nos. 1 have also pleaded that the Power-of-Attorney dated 11.11.2001 (supra) was executed in breach of the interim injunction order issued by the trial court directing maintenance of status quo in respect of the suit property. Hence they seek that action should be taken against the Appellants and the original vendees under Order XXXIX, Rule 2A of the Code of Civil Procedure, 1908 for breach of the injunction order. However, we are in agreement with the trial court?s findings that the Plaintiffs? application under Order XXXIX was moved after a delay of three years and six months, and the said delay has not been satisfactorily explained. Hence the application is barred by laches. In any case, since the original vendees have revoked the Power-of-Attorney, status-quo has been restored, and the Plaintiffs? cause of action no longer exists. The Learned District Judge and the High Court in the impugned judgement have affirmed the trial court?s reasoning on this aspect, and we see no reason to overturn their concurrent findings on this matter. It was also re-iterated before us by Respondent Nos. 1 that the original vendees were misled into withdrawing their suit SCS No. 194/1988 and that the same should not be binding upon the plaintiffs. However given that the withdrawal of the suit has attained finality before this Court, and the Trial Court and the High Court have concurrently found in the separate application made by the plaintiffs in SCS No. 658/1988, by orders date 24.1.2008 and 25.3.2008 supra (respectively), that the original vendees cannot be compelled to continue their suit against their desire, we are not inclined to interfere with the same. V. Alternative Remedy to be given to the plaintiffs 19. Though we have found that on facts and law, Respondent Nos. 1 are not entitled to specific performance of the 1986 and 1987 agreements, prima facie it does appear that the Appellants and the original vendees have colluded to frustrate performance of the 1987 agreements. The trial court had directed the original vendees to reimburse earnest money of Rs. 5000 paid by Respondent Nos. 1 towards each of the 1987 agreements with an interest of 9% p.a. from 14.9.1987 till the date of realization. We are in agreement with the aforesaid direction. With regard to the appropriate remedy to be provided to Respondent Nos. 1, it may also be pertinent to refer to Section 53 of the Contract Act, which provides that: ?53. Liability of party preventing event on which the contract is to take effect.—When a contract contains reciprocal promises, and one party to the contract prevents the other from performing his promise, the contract becomes voidable at the option of the party so prevented: and he is entitled to compensation from the other party for any loss which he may sustain in consequence of the non-performance of the contract.? | 1[ds]7. Upon considering the facts and circumstances of the present case, it is evident that there is no privity of contract between the Appellants and Respondent Nos. 1. Respondent Nos. 1 were not party to the 1986 agreement. Vice versa, the Appellants were not party to the 1987 agreements, though whether or not they had knowledge of the same is disputed. Hence Respondent Nos. 1 cannot seek specific performance of the 1986 agreement, or for that matter, the 1987 agreements, against the Appellants, except by suing as ‘representatives-in-interest? of the original vendees under Section 15(b) of the Specific Relief Act.Application of the above principles to the presentHence, in light of the above discussion, whether or not an assignee can seek specific performance would depend upon the construction of the contract in each case. The Court would have to determine the nature of interest sought to be transferred, whether such interest was meant to be enforceable only between the parties to the contract and whether the contract expressly or by necessary implication bars assignment of suchthe present case, the 1986 agreement provided that the Appellants shall execute sale deed in favour of the original vendees or ‘name proposed by the vendee? subject to the assurance that the latter would pay the remaining consideration and betterment tax within the stipulated time, and that the former would obtain the necessary permissions for construction on the suitare of the opinion that the term ‘name proposed by the vendee? in the 1986 agreement refers to a nominee to be proposed at the time of execution of the sale deed and not a subsequent assignee. At the same time, it is true the 1986 agreement does not contain any express bar against assignability. The question which arises then is whether the purported assignment in favour of Respondent Nos. 1 under the 1987 agreements is legallydecisions in Shyam Singh (supra) and Ram Baran Prasad (supra) relied upon by Respondent Nos. 1 will not help their case as this Court found on the particular facts of those cases that the terms of the contracts in those cases did not implicitly bar assignment. These decisions cannot be taken to lay down a blanket rule that in every case where there is no express bar against assignability stipulated in the contract, assignment of the interest therein should be upheld without looking at the context in which the parties contracted with eachis not disputed that the original vendees had not fulfilled their obligations under the 1986 agreement prior to the purported ‘assignment? under the 1987 agreements. Hence they had not ‘performed their part of the contract? as required under Section 15(b) of the Specific Relief Act. Applying the law as stated above, the assignment of such a contract cannot be enforced without proving that it was with the knowledge and consent of the original owners/Appellants.It is further relevant to note that under the 1987 agreements, payment of the remaining consideration amount is to be made to the original vendees, not the Appellants, and possession of the suit property is to be handed over by the original vendees. Even the consideration to be paid was twice the rate as specified in the 1986 agreement. The 1987 agreements nowhere provide for discharge of the original vendees? pending obligations towards the Appellants by Respondent Nos. 1. Hence we are inclined to accept the Appellants? argument that the 1987 agreements were not a case of assignment but appear to be independent agreements for sale which were contingent on the execution of the 1986 agreement. Therefore, the only way Respondent Nos. 1 can seek specific performance of the 1986 agreement against the Appellants is by proving the Appellants? knowledge of and consent to transfer of the original vendees? rights and liabilities to Respondent Nos. 1.It is true that Section 15(b) does not stipulate in what form the promisee?s ‘acceptance? of performance by a representative- in-interest of the promisor should be communicated. It may be either through express written consent, or implied from the actions of the promisee; though as a matter of caution, the former mode of acceptance would inevitably have higher evidentiary value. However in the present case, as the trial court and the Learned District Judge have rightly appreciated on facts, we do not find that the Appellants have either by words or by conduct, consented to the assignment of the 1986 agreement in favour of Respondent Nos.mere fact that the original owner Mr. Naranbhai Patel signed the development permissions for the suit property and may have been present at the Bhoomi Pujan does not indicate that he consented to assignment of the 1986 agreement. The 1986 agreement stipulated that the original owners would give their signatures for obtaining necessary permissions for the proposed development on the suit property. Hence, as the trial court has rightly noted, Mr. Naranbhai Patel was only carrying out his contractual obligation as he had promised to the original vendees. This does not indicate that he was under the impression that the said permissions were now to be obtained for the benefit of Respondent Nos.is pertinent to note that Respondent Nos. 1 conceded before the trial court that the Appellants had given their signatures on the layout plan for the housing scheme on the suit property to the original vendees, not to Respondent Nos. 1. Even the advertisement regarding the ‘Unnati Park? housing scheme nowhere indicates that the Appellants/original owners were developing the project on the suit property in partnership with Respondent Nos.we conclude that there was no valid assignment of rights flowing from the 1986 agreement to Respondent Nos. 1, and they cannot seek specific performance against thethere is no privity of contract between the Appellants and Respondent Nos. 1 there no longer remains any question of granting specific performance as against the1987 agreements are clearly contingent contracts inasmuch as they could only be enforced had the original vendees obtained the right to get the sale deed executed, and taken possession of the suit property as per the terms of the 1986 agreement. Once the 1986 agreement was cancelled by the Appellants, the original vendees? rights thereunder ceased towas brought to our notice by the Appellants that the aforesaid Power-of-Attorney was subsequently cancelled by the original vendees on 6.6.2003, on the ground that Mr. Dhananjay Patel had obtained the Power-of-Attorney through misrepresentation. However, it is important to note that the original vendees have stated in the aforesaid cancellation notice that they have ‘joint ownership? of the suit property. Therefore we find some merit in the argument that the Appellants and the original vendees are acting inregardless of what may be stated in the Power-of-Attorney, it has to be seen whether the original vendees have legally acquired any rights in the suit property. Respondent Nos. 1 have admitted in their plaints that the Town Planning Scheme was finalized prior to the 1986 agreement. Hence the deadline stipulated under the 1986 agreement for payment of remaining consideration by the original vendees, i.e., within three months of finalization of the Scheme, has long since lapsed. Since the original vendees never paid the remaining consideration within the time specified in the 1986 agreement, their rights thereunder neverassuming that the original vendees acquired some interest in the suit property, the subsequent withdrawal of the suit SCS No. 194/1988 shows that the original vendees do not intend to enforce the 1986 agreement. The trial court has found that though the suit property de jure vested with the concerned government authority under the Town Planning Scheme, the de facto possession of the property remains with the Appellants and the original vendees have not taken possession thereof. Furthermore, both the trial court and the learned District Judge have on facts found that the original vendees have not shown any readiness or willingness to pay the remaining consideration to the Appellants. Hence since the original vendees have abandoned their rights under the 1986 agreement, enforcement of the 1987 agreements has become virtually impossible and Respondent Nos. 1 cannot seek specific performance of the latter. Consequently the 1987 agreements are void and unenforceable as provided under Sections 32 and 35 of the Contract Act.It is relevant to note at this juncture that Respondent Nos. 1 have also pleaded that the Power-of-Attorney dated 11.11.2001 (supra) was executed in breach of the interim injunction order issued by the trial court directing maintenance of status quo in respect of the suit property. Hence they seek that action should be taken against the Appellants and the original vendees under Order XXXIX, Rule 2A of the Code of Civil Procedure, 1908 for breach of the injunction order. However, we are in agreement with the trial court?s findings that the Plaintiffs? application under Order XXXIX was moved after a delay of three years and six months, and the said delay has not been satisfactorily explained. Hence the application is barred by laches. In any case, since the original vendees have revoked the Power-of-Attorney, status-quo has been restored, and the Plaintiffs? cause of action no longer exists. The Learned District Judge and the High Court in the impugned judgement have affirmed the trial court?s reasoning on this aspect, and we see no reason to overturn their concurrent findings on thiswas also re-iterated before us by Respondent Nos. 1 that the original vendees were misled into withdrawing their suit SCS No. 194/1988 and that the same should not be binding upon the plaintiffs. However given that the withdrawal of the suit has attained finality before this Court, and the Trial Court and the High Court have concurrently found in the separate application made by the plaintiffs in SCS No. 658/1988, by orders date 24.1.2008 and 25.3.2008 supra (respectively), that the original vendees cannot be compelled to continue their suit against their desire, we are not inclined to interfere with the same.Alternative Remedy to be given to theThough we have found that on facts and law, Respondent Nos. 1 are not entitled to specific performance of the 1986 and 1987 agreements, prima facie it does appear that the Appellants and the original vendees have colluded to frustrate performance of the 1987 agreements. The trial court had directed the original vendees to reimburse earnest money of Rs. 5000 paid by Respondent Nos. 1 towards each of the 1987 agreements with an interest of 9% p.a. from 14.9.1987 till the date of realization. We are in agreement with the aforesaid direction. | 1 | 7,858 | 1,907 | ### 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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enforced by law unless and until that event has happened.? ?35. When contracts become void, which are contingent on happening of specified event within fixed time.—Contingent contracts to do or not to do anything, if a specified uncertain event happens within a fixed time, become void if, at the expiration of the time fixed, such event has not happened, or if, before the time fixed, such event becomes impossible.? The 1987 agreements are clearly contingent contracts inasmuch as they could only be enforced had the original vendees obtained the right to get the sale deed executed, and taken possession of the suit property as per the terms of the 1986 agreement. Once the 1986 agreement was cancelled by the Appellants, the original vendees? rights thereunder ceased to exist. 17. Respondent Nos. 1 contend that the Power-of-Attorney dated 11.11.2001 (supra) in favour of Mr. Dhananjay Patel shows that the 1986 agreement was not cancelled and that the original vendees continued to retain their right to get the sale deed executed in their favour. It was brought to our notice by the Appellants that the aforesaid Power-of-Attorney was subsequently cancelled by the original vendees on 6.6.2003, on the ground that Mr. Dhananjay Patel had obtained the Power-of-Attorney through misrepresentation. However, it is important to note that the original vendees have stated in the aforesaid cancellation notice that they have ‘joint ownership? of the suit property. Therefore we find some merit in the argument that the Appellants and the original vendees are acting in collusion. Nevertheless, regardless of what may be stated in the Power-of-Attorney, it has to be seen whether the original vendees have legally acquired any rights in the suit property. Respondent Nos. 1 have admitted in their plaints that the Town Planning Scheme was finalized prior to the 1986 agreement. Hence the deadline stipulated under the 1986 agreement for payment of remaining consideration by the original vendees, i.e., within three months of finalization of the Scheme, has long since lapsed. Since the original vendees never paid the remaining consideration within the time specified in the 1986 agreement, their rights thereunder never fructified. Even assuming that the original vendees acquired some interest in the suit property, the subsequent withdrawal of the suit SCS No. 194/1988 shows that the original vendees do not intend to enforce the 1986 agreement. The trial court has found that though the suit property de jure vested with the concerned government authority under the Town Planning Scheme, the de facto possession of the property remains with the Appellants and the original vendees have not taken possession thereof. Furthermore, both the trial court and the learned District Judge have on facts found that the original vendees have not shown any readiness or willingness to pay the remaining consideration to the Appellants. Hence since the original vendees have abandoned their rights under the 1986 agreement, enforcement of the 1987 agreements has become virtually impossible and Respondent Nos. 1 cannot seek specific performance of the latter. Consequently the 1987 agreements are void and unenforceable as provided under Sections 32 and 35 of the Contract Act. 18. It is relevant to note at this juncture that Respondent Nos. 1 have also pleaded that the Power-of-Attorney dated 11.11.2001 (supra) was executed in breach of the interim injunction order issued by the trial court directing maintenance of status quo in respect of the suit property. Hence they seek that action should be taken against the Appellants and the original vendees under Order XXXIX, Rule 2A of the Code of Civil Procedure, 1908 for breach of the injunction order. However, we are in agreement with the trial court?s findings that the Plaintiffs? application under Order XXXIX was moved after a delay of three years and six months, and the said delay has not been satisfactorily explained. Hence the application is barred by laches. In any case, since the original vendees have revoked the Power-of-Attorney, status-quo has been restored, and the Plaintiffs? cause of action no longer exists. The Learned District Judge and the High Court in the impugned judgement have affirmed the trial court?s reasoning on this aspect, and we see no reason to overturn their concurrent findings on this matter. It was also re-iterated before us by Respondent Nos. 1 that the original vendees were misled into withdrawing their suit SCS No. 194/1988 and that the same should not be binding upon the plaintiffs. However given that the withdrawal of the suit has attained finality before this Court, and the Trial Court and the High Court have concurrently found in the separate application made by the plaintiffs in SCS No. 658/1988, by orders date 24.1.2008 and 25.3.2008 supra (respectively), that the original vendees cannot be compelled to continue their suit against their desire, we are not inclined to interfere with the same. V. Alternative Remedy to be given to the plaintiffs 19. Though we have found that on facts and law, Respondent Nos. 1 are not entitled to specific performance of the 1986 and 1987 agreements, prima facie it does appear that the Appellants and the original vendees have colluded to frustrate performance of the 1987 agreements. The trial court had directed the original vendees to reimburse earnest money of Rs. 5000 paid by Respondent Nos. 1 towards each of the 1987 agreements with an interest of 9% p.a. from 14.9.1987 till the date of realization. We are in agreement with the aforesaid direction. With regard to the appropriate remedy to be provided to Respondent Nos. 1, it may also be pertinent to refer to Section 53 of the Contract Act, which provides that: ?53. Liability of party preventing event on which the contract is to take effect.—When a contract contains reciprocal promises, and one party to the contract prevents the other from performing his promise, the contract becomes voidable at the option of the party so prevented: and he is entitled to compensation from the other party for any loss which he may sustain in consequence of the non-performance of the contract.?
### Response:
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### Explanation:
Respondent Nos.mere fact that the original owner Mr. Naranbhai Patel signed the development permissions for the suit property and may have been present at the Bhoomi Pujan does not indicate that he consented to assignment of the 1986 agreement. The 1986 agreement stipulated that the original owners would give their signatures for obtaining necessary permissions for the proposed development on the suit property. Hence, as the trial court has rightly noted, Mr. Naranbhai Patel was only carrying out his contractual obligation as he had promised to the original vendees. This does not indicate that he was under the impression that the said permissions were now to be obtained for the benefit of Respondent Nos.is pertinent to note that Respondent Nos. 1 conceded before the trial court that the Appellants had given their signatures on the layout plan for the housing scheme on the suit property to the original vendees, not to Respondent Nos. 1. Even the advertisement regarding the ‘Unnati Park? housing scheme nowhere indicates that the Appellants/original owners were developing the project on the suit property in partnership with Respondent Nos.we conclude that there was no valid assignment of rights flowing from the 1986 agreement to Respondent Nos. 1, and they cannot seek specific performance against thethere is no privity of contract between the Appellants and Respondent Nos. 1 there no longer remains any question of granting specific performance as against the1987 agreements are clearly contingent contracts inasmuch as they could only be enforced had the original vendees obtained the right to get the sale deed executed, and taken possession of the suit property as per the terms of the 1986 agreement. Once the 1986 agreement was cancelled by the Appellants, the original vendees? rights thereunder ceased towas brought to our notice by the Appellants that the aforesaid Power-of-Attorney was subsequently cancelled by the original vendees on 6.6.2003, on the ground that Mr. Dhananjay Patel had obtained the Power-of-Attorney through misrepresentation. However, it is important to note that the original vendees have stated in the aforesaid cancellation notice that they have ‘joint ownership? of the suit property. Therefore we find some merit in the argument that the Appellants and the original vendees are acting inregardless of what may be stated in the Power-of-Attorney, it has to be seen whether the original vendees have legally acquired any rights in the suit property. Respondent Nos. 1 have admitted in their plaints that the Town Planning Scheme was finalized prior to the 1986 agreement. Hence the deadline stipulated under the 1986 agreement for payment of remaining consideration by the original vendees, i.e., within three months of finalization of the Scheme, has long since lapsed. Since the original vendees never paid the remaining consideration within the time specified in the 1986 agreement, their rights thereunder neverassuming that the original vendees acquired some interest in the suit property, the subsequent withdrawal of the suit SCS No. 194/1988 shows that the original vendees do not intend to enforce the 1986 agreement. The trial court has found that though the suit property de jure vested with the concerned government authority under the Town Planning Scheme, the de facto possession of the property remains with the Appellants and the original vendees have not taken possession thereof. Furthermore, both the trial court and the learned District Judge have on facts found that the original vendees have not shown any readiness or willingness to pay the remaining consideration to the Appellants. Hence since the original vendees have abandoned their rights under the 1986 agreement, enforcement of the 1987 agreements has become virtually impossible and Respondent Nos. 1 cannot seek specific performance of the latter. Consequently the 1987 agreements are void and unenforceable as provided under Sections 32 and 35 of the Contract Act.It is relevant to note at this juncture that Respondent Nos. 1 have also pleaded that the Power-of-Attorney dated 11.11.2001 (supra) was executed in breach of the interim injunction order issued by the trial court directing maintenance of status quo in respect of the suit property. Hence they seek that action should be taken against the Appellants and the original vendees under Order XXXIX, Rule 2A of the Code of Civil Procedure, 1908 for breach of the injunction order. However, we are in agreement with the trial court?s findings that the Plaintiffs? application under Order XXXIX was moved after a delay of three years and six months, and the said delay has not been satisfactorily explained. Hence the application is barred by laches. In any case, since the original vendees have revoked the Power-of-Attorney, status-quo has been restored, and the Plaintiffs? cause of action no longer exists. The Learned District Judge and the High Court in the impugned judgement have affirmed the trial court?s reasoning on this aspect, and we see no reason to overturn their concurrent findings on thiswas also re-iterated before us by Respondent Nos. 1 that the original vendees were misled into withdrawing their suit SCS No. 194/1988 and that the same should not be binding upon the plaintiffs. However given that the withdrawal of the suit has attained finality before this Court, and the Trial Court and the High Court have concurrently found in the separate application made by the plaintiffs in SCS No. 658/1988, by orders date 24.1.2008 and 25.3.2008 supra (respectively), that the original vendees cannot be compelled to continue their suit against their desire, we are not inclined to interfere with the same.Alternative Remedy to be given to theThough we have found that on facts and law, Respondent Nos. 1 are not entitled to specific performance of the 1986 and 1987 agreements, prima facie it does appear that the Appellants and the original vendees have colluded to frustrate performance of the 1987 agreements. The trial court had directed the original vendees to reimburse earnest money of Rs. 5000 paid by Respondent Nos. 1 towards each of the 1987 agreements with an interest of 9% p.a. from 14.9.1987 till the date of realization. We are in agreement with the aforesaid direction.
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Mohanlal Jain Vs. His Highness Maharaja Shri Sawai Man Singhji | sovereign Rulers of Indian States, handed over, after the foundation of the Republic, their States to the Nation in return for an annual Privy Purse and the assurance that their personal rights, privileges and dignities would be respected. The Constitution itself declared that these rights, etc., would receive recognition. A law made as a result of these considerations must be treated as based on a proper classification of such Rulers, who had signed the agreement of the character described above. It is based upon a distinction which can be described as real and substantial, and it bears a just relation to the object sought to be attained. 11. It is further contended that the Article speaks of privileges but not of immunities, and we were referred to certain other Articles of the Constitution where "immunities" are specifically mentioned. It is not necessary to refer to those articles. Immunity from civil action may be described also as a privilege, because the word privilege" is sufficiently wide to include an immunity. The Constitution was not limited to the choice of any particular words, so long as the intention was clearly expressed. In our opinion, the words personal rights and privileges" are sufficiently comprehensive to embrance an immunity of this character. It is, therefore, clear that the section cannot be challenged as discriminatory, because it arises from a classification based on historical facts. 12. It is next contended that S. 87 B only applies the provisions of sub-ss. (1) and (3) of S. 86, that the words of the latter section are not retrospective, that the suit was filed before the enactment of S. 87-B, and that the substantive right of the plaintiff to continue his suit could not be taken away in the absence of express language or clear intendment. The words of S. 86 (1) are "No Ruler of a foreign State may be sued in any court......". This precludes, it is said, only the initiation of a suit and not the continuance of a suit already filed before the section was enacted. In our opinion these arguments cannot be accepted. The word "sued" means not only the filing of a suit or a civil proceeding but also their pursuit through Courts. A person is sued not only when the plaint is filed, but is sued also when the suit remains pending against him. The word "sued" covers the entire proceeding in an action, and the person proceeded against issued throughout the duration of the action. It follows that consent is necessary not only for the filing of the suit against the ex-Ruler but also for its continuation from the time consent is required. In view of the amplitude of the word "sued", it is not necessary to consider generally to what extent pending cases are affected by subsequent legislation or refer to the principles laid down in United Provinces v. Atiqa Begum. 1940 F C R l10 : (AIR 1941 F C 16), Venugopala Reddiar v. Krishnaswamy Reddiar, 1943 F C R 39 : (AIR 1943 F C 24) or Garikapati Veeraya v. N. Subbiah Choudhury, 1957 S C R 488 : ((S) AIR 1957 S C 540). If the language of S. 86 read with S. 87-B were applicable only to the initiation of a civil suit, these cases might have been helpful; but since the words "may sue" include not only the initiation of a suit but its continuation also, it is manifest that neither the suit could he filed nor maintained except with the consent of the Central Government. In Atiqa Begums case, 1940 F C R l10 : (AIR 1941. F C 16), Vardachriar, J., referred to the two principles applicable to cases where the question of retrospectivity of a law has to be considered. They are that vested rights should not be presumed to be affected, and that the rights of the parties to an action should ordinarily be determined in accordance with the law, as it stood at the date of the commencement of the action. But the learned Judge pointed out that the language of the enactment might be sufficient to rebut the first, and cited the case of the Privy Council in K. C. Mukherjee v. Mst. Ram Ratan Kuer, ILR 15 Pat 268 : (AIR 1936 PC 49 ). Here, the matter can be resolved on the language of the enactment. The language employed is of sufficient width and certainty to include even ponding actions, and the contrary rule apolies, namely, that unless pending actions are saved from the operation of the new law, they must be taken to be affected. The word "sued", as we have shown, denotes not only the start but also the continuation of a civil action, and the prohibition, therefore, affects not only a suit instituted after the enactment of S. 87-B but one which, though instituted before its enactment, is pending. In out judgment, the present suit was incompetent against the first defendant, the exRuler of Jaipur. 13. It is contended that defendants 2 and 3 acted as the agents of the ex-Ruler and placed the order with the appellant. The position of the Military Secretary (since dead) was on a different footing, but it is conceded that no cause of action against him survived, because the appeal has abated against him. Mohabat Singh, who is the third defendant, cannot be described as an agent of the ex-Ruler, because his connection with the orders placed was merely to sign the letters purporting to emanate from the Military Secretary. Those letters he signed "for the Military Secretary". He was not acting as the agent of the ex-Ruler but was performing the ministerial act of signing the letters on behalf of the military Secretary. This cannot be said to have constituted him an agent. The suit against him was, therefore, misconceived, whatever might have been said of the Military Secretary. 14. In our opinion, the dismissal of the suit was justified in the circumstances of the case. | 0[ds]It is easy to see that the ex-Rulers form a class and the special legislation is based upon historical considerations applicable to them as a class. The Princes who were, before integration, sovereign Rulers of Indian States, handed over, after the foundation of the Republic, their States to the Nation in return for an annual Privy Purse and the assurance that their personal rights, privileges and dignities would be respected. The Constitution itself declared that these rights, etc., would receive recognition. A law made as a result of these considerations must be treated as based on a proper classification of such Rulers, who had signed the agreement of the character described above. It is based upon a distinction which can be described as real and substantial, and it bears a just relation to the object sought to be attainedIn our opinion, the words personal rights and privileges" are sufficiently comprehensive to embrance an immunity of this character. It is, therefore, clear that the section cannot be challenged as discriminatory, because it arises from a classification based on historical factsHere, the matter can be resolved on the language of the enactment. The language employed is of sufficient width and certainty to include even ponding actions, and the contrary rule apolies, namely, that unless pending actions are saved from the operation of the new law, they must be taken to be affected. The word "sued", as we have shown, denotes not only the start but also the continuation of a civil action, and the prohibition, therefore, affects not only a suit instituted after the enactment of S. 87-B but one which, though instituted before its enactment, is pending. In out judgment, the present suit was incompetent against the first defendant, the exRuler of JaipurThe position of the Military Secretary (since dead) was on a different footing, but it is conceded that no cause of action against him survived, because the appeal has abated against him. Mohabat Singh, who is the third defendant, cannot be described as an agent of the ex-Ruler, because his connection with the orders placed was merely to sign the letters purporting to emanate from the Military Secretary. Those letters he signed "for the Military Secretary". He was not acting as the agent of the ex-Ruler but was performing the ministerial act of signing the letters on behalf of the military Secretary. This cannot be said to have constituted him an agent. The suit against him was, therefore, misconceived, whatever might have been said of the Military Secretary14. In our opinion, the dismissal of the suit was justified in the circumstances of the case. | 0 | 3,002 | 501 | ### 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:
sovereign Rulers of Indian States, handed over, after the foundation of the Republic, their States to the Nation in return for an annual Privy Purse and the assurance that their personal rights, privileges and dignities would be respected. The Constitution itself declared that these rights, etc., would receive recognition. A law made as a result of these considerations must be treated as based on a proper classification of such Rulers, who had signed the agreement of the character described above. It is based upon a distinction which can be described as real and substantial, and it bears a just relation to the object sought to be attained. 11. It is further contended that the Article speaks of privileges but not of immunities, and we were referred to certain other Articles of the Constitution where "immunities" are specifically mentioned. It is not necessary to refer to those articles. Immunity from civil action may be described also as a privilege, because the word privilege" is sufficiently wide to include an immunity. The Constitution was not limited to the choice of any particular words, so long as the intention was clearly expressed. In our opinion, the words personal rights and privileges" are sufficiently comprehensive to embrance an immunity of this character. It is, therefore, clear that the section cannot be challenged as discriminatory, because it arises from a classification based on historical facts. 12. It is next contended that S. 87 B only applies the provisions of sub-ss. (1) and (3) of S. 86, that the words of the latter section are not retrospective, that the suit was filed before the enactment of S. 87-B, and that the substantive right of the plaintiff to continue his suit could not be taken away in the absence of express language or clear intendment. The words of S. 86 (1) are "No Ruler of a foreign State may be sued in any court......". This precludes, it is said, only the initiation of a suit and not the continuance of a suit already filed before the section was enacted. In our opinion these arguments cannot be accepted. The word "sued" means not only the filing of a suit or a civil proceeding but also their pursuit through Courts. A person is sued not only when the plaint is filed, but is sued also when the suit remains pending against him. The word "sued" covers the entire proceeding in an action, and the person proceeded against issued throughout the duration of the action. It follows that consent is necessary not only for the filing of the suit against the ex-Ruler but also for its continuation from the time consent is required. In view of the amplitude of the word "sued", it is not necessary to consider generally to what extent pending cases are affected by subsequent legislation or refer to the principles laid down in United Provinces v. Atiqa Begum. 1940 F C R l10 : (AIR 1941 F C 16), Venugopala Reddiar v. Krishnaswamy Reddiar, 1943 F C R 39 : (AIR 1943 F C 24) or Garikapati Veeraya v. N. Subbiah Choudhury, 1957 S C R 488 : ((S) AIR 1957 S C 540). If the language of S. 86 read with S. 87-B were applicable only to the initiation of a civil suit, these cases might have been helpful; but since the words "may sue" include not only the initiation of a suit but its continuation also, it is manifest that neither the suit could he filed nor maintained except with the consent of the Central Government. In Atiqa Begums case, 1940 F C R l10 : (AIR 1941. F C 16), Vardachriar, J., referred to the two principles applicable to cases where the question of retrospectivity of a law has to be considered. They are that vested rights should not be presumed to be affected, and that the rights of the parties to an action should ordinarily be determined in accordance with the law, as it stood at the date of the commencement of the action. But the learned Judge pointed out that the language of the enactment might be sufficient to rebut the first, and cited the case of the Privy Council in K. C. Mukherjee v. Mst. Ram Ratan Kuer, ILR 15 Pat 268 : (AIR 1936 PC 49 ). Here, the matter can be resolved on the language of the enactment. The language employed is of sufficient width and certainty to include even ponding actions, and the contrary rule apolies, namely, that unless pending actions are saved from the operation of the new law, they must be taken to be affected. The word "sued", as we have shown, denotes not only the start but also the continuation of a civil action, and the prohibition, therefore, affects not only a suit instituted after the enactment of S. 87-B but one which, though instituted before its enactment, is pending. In out judgment, the present suit was incompetent against the first defendant, the exRuler of Jaipur. 13. It is contended that defendants 2 and 3 acted as the agents of the ex-Ruler and placed the order with the appellant. The position of the Military Secretary (since dead) was on a different footing, but it is conceded that no cause of action against him survived, because the appeal has abated against him. Mohabat Singh, who is the third defendant, cannot be described as an agent of the ex-Ruler, because his connection with the orders placed was merely to sign the letters purporting to emanate from the Military Secretary. Those letters he signed "for the Military Secretary". He was not acting as the agent of the ex-Ruler but was performing the ministerial act of signing the letters on behalf of the military Secretary. This cannot be said to have constituted him an agent. The suit against him was, therefore, misconceived, whatever might have been said of the Military Secretary. 14. In our opinion, the dismissal of the suit was justified in the circumstances of the case.
### Response:
0
### Explanation:
It is easy to see that the ex-Rulers form a class and the special legislation is based upon historical considerations applicable to them as a class. The Princes who were, before integration, sovereign Rulers of Indian States, handed over, after the foundation of the Republic, their States to the Nation in return for an annual Privy Purse and the assurance that their personal rights, privileges and dignities would be respected. The Constitution itself declared that these rights, etc., would receive recognition. A law made as a result of these considerations must be treated as based on a proper classification of such Rulers, who had signed the agreement of the character described above. It is based upon a distinction which can be described as real and substantial, and it bears a just relation to the object sought to be attainedIn our opinion, the words personal rights and privileges" are sufficiently comprehensive to embrance an immunity of this character. It is, therefore, clear that the section cannot be challenged as discriminatory, because it arises from a classification based on historical factsHere, the matter can be resolved on the language of the enactment. The language employed is of sufficient width and certainty to include even ponding actions, and the contrary rule apolies, namely, that unless pending actions are saved from the operation of the new law, they must be taken to be affected. The word "sued", as we have shown, denotes not only the start but also the continuation of a civil action, and the prohibition, therefore, affects not only a suit instituted after the enactment of S. 87-B but one which, though instituted before its enactment, is pending. In out judgment, the present suit was incompetent against the first defendant, the exRuler of JaipurThe position of the Military Secretary (since dead) was on a different footing, but it is conceded that no cause of action against him survived, because the appeal has abated against him. Mohabat Singh, who is the third defendant, cannot be described as an agent of the ex-Ruler, because his connection with the orders placed was merely to sign the letters purporting to emanate from the Military Secretary. Those letters he signed "for the Military Secretary". He was not acting as the agent of the ex-Ruler but was performing the ministerial act of signing the letters on behalf of the military Secretary. This cannot be said to have constituted him an agent. The suit against him was, therefore, misconceived, whatever might have been said of the Military Secretary14. In our opinion, the dismissal of the suit was justified in the circumstances of the case.
|
Jaswant Singh Gill Vs. M/S. Bharat Coking Coal Ltd. | a statutory right provided in favour of the employee..." 17. Interpreting Section 4(1) of the Act, it was held: "...We shall come back to the deposit of the provident fund but as regards the gratuity amount, be it noted that there is a mandate of the statute that gratuity is to be paid to the employee on his retirement or to his dependants in the event of his early death the introduction of the Family Pension Scheme by which the employee is compelled to deposit the gratuity amount, as a matter of fact runs counter to this beneficial piece of legislation (Act of 1972). The statutory mandate is unequivocal and unambiguous in nature and runs to the effect that the gratuity is payable to the heirs of the nominees of the employees concerned but by the introduction of the Family Pension Scheme, this mandate stands violated and as such the same cannot but be termed to be illegal in nature. We do find some substance in the contention as raised, a mandatory statutory obligation cannot be trifled with by adaptation of a method which runs counter to the statute. It does not take long to appreciate the purpose for which this particular Family Pension Scheme has been introduced by deposit of the provident fund and the gratuity amount and we are not expressing any opinion in regard thereto but the fact remains that statutory obligation cannot be left high and dry on the whims of the employer irrespective of the factum of the employer being an authority within the meaning of Article 12 or not." 18. We may notice that this Court in Bhagirathi Jena v. Board of Directors, O.S.F.C. & Ors. [(1999) 3 SCC 666] was concerned with interpretation of Regulation 17 of the Orissa State Financial Corporation Employees Provident Fund Regulations, 1959. This Court noticed the relevant Regulations and opined that therein no specific provision existed for deducting any amount from the provident fund consequent to any misconduct determined in departmental enquiry, nor was there any provision for continuance of departmental enquiry after superannuation. It was in the aforementioned situation opined: "In view of the absence of such a provision in the abovesaid regulations, it must be held that the Corporation had no legal authority to make any reduction in the retiral benefits of the appellant. There is also no provision for conducting a disciplinary enquiry after retirement of the appellant and nor any provision stating that in case misconduct is established, a deduction could be made from retiral benefits. Once the appellant had retired from service on 30-6-1995, there was no authority vested in the Corporation for continuing the departmental enquiry even for the purpose of imposing any reduction in the retiral benefits payable to the appellant. In the absence of such an authority, it must be held that the enquiry had lapsed and the appellant was entitled to full retiral benefits on retirement." 19. These aspects of the matter although have been considered by the authority under the Act as also the appellate authority wherewith the learned Single Judge agreed, the Division Bench posed unto itself a wrong question and, thus, misdirected itself while passing the impugned judgment. The controlling authority was exercising a power under a statute and, therefore, it having been authorised to administer the provisions of the Act was entitled to determine as to whether any case has been made out to deny the right of the appellant to obtain the amount of gratuity in accordance with the provisions thereof. He, thus, did not exceed his jurisdiction. 20. Reliance has been placed by Mr. Rana Mukherjee, learned counsel appearing on behalf of Respondent No. 1 on Management of Tournamulla Estate v. Workmen [1973 (3) SCR 762 ]. In that case, this Court was concerned with a scheme of gratuity. The scheme contained a provision which was in pari materia with Section 4(6)(b) of the Act. The said scheme was upheld stating: "Although the provisions of this statute would not govern the decision of the present case, the importance of the enactment lies in the fact that the principle which was laid down in the Delhi Cloth Mills case with regard to forfeiture of gratuity in the event of commission of gross misconduct of the nature mentioned above, has been incorporated in the statute itself. Even otherwise, such a rule is conducive to industrial harmony and is in consonance with public policy." 21. Reliance has also been placed upon a decision of Karnataka High Court in M/s. Bharath Gold Mines Ltd. v. The Regional Labour Commissioner (Central), Bangalore and others [1986 Lab. I.C. 1976]. In that case it was held that before the amount of gratuity can be directed to be forfeited, an opportunity of hearing must be given. The said decision may not have any application to the fact of the present case as opportunity of hearing was given both to the employer as also the employee by the authority. 22. Reliance placed by Mr. Mukherjee on a decision of this Court in D.V. Kapoor v. Union of India and Others [(1990) 4 SCC 314] is misplaced. Therein having regard to the provisions of the Civil Services and Conduct Rules, it was held that a departmental proceeding can be continued even after allowing the delinquent employee to voluntarily retire. However, therein the rules provided for withholding or withdrawing pension permanently. In that case itself, it was opined: "...The right to gratuity is also a statutory right. The appellant was not charged with nor was given an opportunity that his gratuity would be withheld as a measure of punishment. No provision of law has been brought to our notice under which, the President is empowered to withhold gratuity as well, after his retirement as a measure of punishment. Therefore, the order to withhold the gratuity as a measure of penalty is obviously illegal and is devoid of jurisdiction." 23. The said decision, thus, was rendered having regard to the rule which was in operation. | 1[ds]10. The Rules framed by the Coal India Limited are not statutory rules. They have been made by the holding company of Respondent No. 1.11. The provisions of the Act, therefore, must prevail over the Rules. Rule 27 of the Rules provides for recovery from gratuity only to the extent of loss caused to the company by negligence or breach of orders or trust. Penalties, however, must be imposed so long an employee remains in service. Even if a disciplinary proceeding was initiated prior to the attaining of the age of superannuation, in the event, the employee retires from service, the question of imposing a major penalty by removal or dismissal from service would not arise. Rule 34.2 no doubt provides for continuation of a disciplinary proceeding despite retirement of employee if the same was initiated before his retirement but the same would not mean that although he was permitted to retire and his services had not been extended for the said purpose, a major penalty in terms of Rule 27 can be imposed.12. Power to withhold penalty contained in Rule 34.3 of the Rules must be subject to the provisions of the Act. Gratuity becomes payable as soon as the employee retires. The only condition therefor is rendition of five years continuous service.13. A statutory right accrued, thus, cannot be impaired by reason of a rule which does not have the force of a statute. It will bear repetition to state that the Rules framed by Respondent No. 1 or its holding company are not statutory in nature. The Rules in any event do not provide for withholding of retrial benefits or gratuity.14. The Act provides for a closely neat scheme providing for payment of gratuity. It is a complete code containing detailed provisions covering the essential provisions of a scheme for a gratuity. It not only creates a right to payment of gratuity but also lays down the principles for quantification thereof as also the conditions on which he may be denied therefrom. As noticed hereinbefore, sub-section (6) of Section 4 of the Act contains a non-obstante clause vis-à-vis sub-section (1) thereof. As by reason thereof, an accrued or vested right is sought to be taken away, the conditions laid down thereunder must be fulfilled. The provisions contained therein must, therefore, be scrupulously observed. Clause (a) of Sub-section (6) of Section 4 of the Act speaks of termination of service of an employee for any act, willful omission or negligence causing any damage. However, the amount liable to be forfeited would be only to the extent of damage or loss caused. The disciplinary authority has not quantified the loss or damage. It was not found that the damages or loss caused to Respondent No. 1 was more than the amount of gratuity payable to the appellant. Clause (b) of Sub-section (6) of Section 4 of the Act also provides for forfeiture of the whole amount of gratuity or part in the event his services had been terminated for his riotous or disorderly conduct or any other act of violence on his part or if he has been convicted for an offence involving moral turpitude. Conditions laid down therein are also not satisfied.15. Termination of services for any of the causes enumerated in Sub-section (6) of Section 4 of the Act, therefore, is imperative. | 1 | 3,716 | 623 | ### 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:
a statutory right provided in favour of the employee..." 17. Interpreting Section 4(1) of the Act, it was held: "...We shall come back to the deposit of the provident fund but as regards the gratuity amount, be it noted that there is a mandate of the statute that gratuity is to be paid to the employee on his retirement or to his dependants in the event of his early death the introduction of the Family Pension Scheme by which the employee is compelled to deposit the gratuity amount, as a matter of fact runs counter to this beneficial piece of legislation (Act of 1972). The statutory mandate is unequivocal and unambiguous in nature and runs to the effect that the gratuity is payable to the heirs of the nominees of the employees concerned but by the introduction of the Family Pension Scheme, this mandate stands violated and as such the same cannot but be termed to be illegal in nature. We do find some substance in the contention as raised, a mandatory statutory obligation cannot be trifled with by adaptation of a method which runs counter to the statute. It does not take long to appreciate the purpose for which this particular Family Pension Scheme has been introduced by deposit of the provident fund and the gratuity amount and we are not expressing any opinion in regard thereto but the fact remains that statutory obligation cannot be left high and dry on the whims of the employer irrespective of the factum of the employer being an authority within the meaning of Article 12 or not." 18. We may notice that this Court in Bhagirathi Jena v. Board of Directors, O.S.F.C. & Ors. [(1999) 3 SCC 666] was concerned with interpretation of Regulation 17 of the Orissa State Financial Corporation Employees Provident Fund Regulations, 1959. This Court noticed the relevant Regulations and opined that therein no specific provision existed for deducting any amount from the provident fund consequent to any misconduct determined in departmental enquiry, nor was there any provision for continuance of departmental enquiry after superannuation. It was in the aforementioned situation opined: "In view of the absence of such a provision in the abovesaid regulations, it must be held that the Corporation had no legal authority to make any reduction in the retiral benefits of the appellant. There is also no provision for conducting a disciplinary enquiry after retirement of the appellant and nor any provision stating that in case misconduct is established, a deduction could be made from retiral benefits. Once the appellant had retired from service on 30-6-1995, there was no authority vested in the Corporation for continuing the departmental enquiry even for the purpose of imposing any reduction in the retiral benefits payable to the appellant. In the absence of such an authority, it must be held that the enquiry had lapsed and the appellant was entitled to full retiral benefits on retirement." 19. These aspects of the matter although have been considered by the authority under the Act as also the appellate authority wherewith the learned Single Judge agreed, the Division Bench posed unto itself a wrong question and, thus, misdirected itself while passing the impugned judgment. The controlling authority was exercising a power under a statute and, therefore, it having been authorised to administer the provisions of the Act was entitled to determine as to whether any case has been made out to deny the right of the appellant to obtain the amount of gratuity in accordance with the provisions thereof. He, thus, did not exceed his jurisdiction. 20. Reliance has been placed by Mr. Rana Mukherjee, learned counsel appearing on behalf of Respondent No. 1 on Management of Tournamulla Estate v. Workmen [1973 (3) SCR 762 ]. In that case, this Court was concerned with a scheme of gratuity. The scheme contained a provision which was in pari materia with Section 4(6)(b) of the Act. The said scheme was upheld stating: "Although the provisions of this statute would not govern the decision of the present case, the importance of the enactment lies in the fact that the principle which was laid down in the Delhi Cloth Mills case with regard to forfeiture of gratuity in the event of commission of gross misconduct of the nature mentioned above, has been incorporated in the statute itself. Even otherwise, such a rule is conducive to industrial harmony and is in consonance with public policy." 21. Reliance has also been placed upon a decision of Karnataka High Court in M/s. Bharath Gold Mines Ltd. v. The Regional Labour Commissioner (Central), Bangalore and others [1986 Lab. I.C. 1976]. In that case it was held that before the amount of gratuity can be directed to be forfeited, an opportunity of hearing must be given. The said decision may not have any application to the fact of the present case as opportunity of hearing was given both to the employer as also the employee by the authority. 22. Reliance placed by Mr. Mukherjee on a decision of this Court in D.V. Kapoor v. Union of India and Others [(1990) 4 SCC 314] is misplaced. Therein having regard to the provisions of the Civil Services and Conduct Rules, it was held that a departmental proceeding can be continued even after allowing the delinquent employee to voluntarily retire. However, therein the rules provided for withholding or withdrawing pension permanently. In that case itself, it was opined: "...The right to gratuity is also a statutory right. The appellant was not charged with nor was given an opportunity that his gratuity would be withheld as a measure of punishment. No provision of law has been brought to our notice under which, the President is empowered to withhold gratuity as well, after his retirement as a measure of punishment. Therefore, the order to withhold the gratuity as a measure of penalty is obviously illegal and is devoid of jurisdiction." 23. The said decision, thus, was rendered having regard to the rule which was in operation.
### Response:
1
### Explanation:
10. The Rules framed by the Coal India Limited are not statutory rules. They have been made by the holding company of Respondent No. 1.11. The provisions of the Act, therefore, must prevail over the Rules. Rule 27 of the Rules provides for recovery from gratuity only to the extent of loss caused to the company by negligence or breach of orders or trust. Penalties, however, must be imposed so long an employee remains in service. Even if a disciplinary proceeding was initiated prior to the attaining of the age of superannuation, in the event, the employee retires from service, the question of imposing a major penalty by removal or dismissal from service would not arise. Rule 34.2 no doubt provides for continuation of a disciplinary proceeding despite retirement of employee if the same was initiated before his retirement but the same would not mean that although he was permitted to retire and his services had not been extended for the said purpose, a major penalty in terms of Rule 27 can be imposed.12. Power to withhold penalty contained in Rule 34.3 of the Rules must be subject to the provisions of the Act. Gratuity becomes payable as soon as the employee retires. The only condition therefor is rendition of five years continuous service.13. A statutory right accrued, thus, cannot be impaired by reason of a rule which does not have the force of a statute. It will bear repetition to state that the Rules framed by Respondent No. 1 or its holding company are not statutory in nature. The Rules in any event do not provide for withholding of retrial benefits or gratuity.14. The Act provides for a closely neat scheme providing for payment of gratuity. It is a complete code containing detailed provisions covering the essential provisions of a scheme for a gratuity. It not only creates a right to payment of gratuity but also lays down the principles for quantification thereof as also the conditions on which he may be denied therefrom. As noticed hereinbefore, sub-section (6) of Section 4 of the Act contains a non-obstante clause vis-à-vis sub-section (1) thereof. As by reason thereof, an accrued or vested right is sought to be taken away, the conditions laid down thereunder must be fulfilled. The provisions contained therein must, therefore, be scrupulously observed. Clause (a) of Sub-section (6) of Section 4 of the Act speaks of termination of service of an employee for any act, willful omission or negligence causing any damage. However, the amount liable to be forfeited would be only to the extent of damage or loss caused. The disciplinary authority has not quantified the loss or damage. It was not found that the damages or loss caused to Respondent No. 1 was more than the amount of gratuity payable to the appellant. Clause (b) of Sub-section (6) of Section 4 of the Act also provides for forfeiture of the whole amount of gratuity or part in the event his services had been terminated for his riotous or disorderly conduct or any other act of violence on his part or if he has been convicted for an offence involving moral turpitude. Conditions laid down therein are also not satisfied.15. Termination of services for any of the causes enumerated in Sub-section (6) of Section 4 of the Act, therefore, is imperative.
|
State Of Punjab And Anr Vs. Kirpal Singh Bhatia & Ors | letter dated 23 July, 1957 meant that a teacher who passed Bachelor of Teaching examination would be entitled to be appointed a Master and on being so appointed would be entitled to the scale of pay. With regard to the letter dated 7 November 1958 which stated that 25 per cent posts of B.T./B .Ed. Masters in Rs. 110-250 grade should be filled by promotion from amongst the teachers who were in lower grade, counsel for the State contended that teachers who were qualified by possessing B.T. B.Ed. degrees would be entitled to get 25 per cent of the posts provided the respective posts according to their subject combination were vacant.7. Rule 10 entitles the teachers to such scales of pay as may be authorised by the Government from time to time. The letter dated 23 July, 1957 shows that teachers who possess the degree of Bachelor of Teaching or its equivalent on 1 May 1957 will be entitled to scales of pay mentioned therein. Those who will pass the examination of Bachelor of Teaching thereafter will be entitled to their revised scale of pay with effect from the date they pass the examination.8. The contention of the State that there was not to be a mass increase of scale of pay is unsound. Teachers who possessed degrees became entitled to scales of pay according to category A.The High Court rightly referred to the letter of the Secretary of the Department dated 24 September, 1957 that teachers holding B.A., B.T./B.A., B.Ed. qualifications would hence-forth be placed in category A.9. The High Court rightly came to the conclusion that the scale of pay of Rs. 110-250 would be effective either from the date when the teachers would pass the examination of Bachelor of Teaching or its equivalent or 1 May, 1957, whichever is later. The High Court, however, gave the teachers the scales of salary confined to a period of 3 years and 2 months counting back from the date of the presentation of the writ petition. In other words, the High Court did not allow the teachers any claim prior to 1967.10. The letter dated 7 November, 1958 was necessary because in spite of the revised grade of Rs. 110-250 having been granted to Bachelor in Teaching or equivalent thereof, they were not being appointed by process of promotion to the posts of Masters. The letter stated that "selection is to be made on the basis of seniority-cum-merit, due regard being paid to good reputation regarding character, popularity among students and parents and capacity to maintain discipline". The respondents claimed that according to the letter those of them who were Bachelor in Teaching or Bachelor in Education were entitled to be appointed to the posts of Masters. The teachers could not claim vacancies by promotion exceeding 25 per cent. Their claim for appointment by promotion had to take into consideration not merely their seniority but also their merit. This percentage of 25 as fixed by the letter is covered by Rule 7(ii) and the principle of selection for appointment is covered by Rule 7 clause (iii). Therefore, the earlier letter dated July 23, 1957 fixed the scale of pay on the basis of academic qualifications. The subsequent letter dated 7 November, 1958 recognised the right of promotion to the posts of Masters to the extent of 25 per cent.The High Court said that the contention of the State that the teachers could not be considered for promotion unless they satisfied the condition of subject combination namely, that if they were ordinary graduates with training qualifications, they must have studied two out of the four subjects, namely, History Geography, Economics and political Science is not supported by the letter dated 7 November, 1958. The High Court rightly said that the letter does not speak of any limitation of subject combination for promotion.11. Some of the teachers were from time to time promoted to the posts of Masters but never continuously beyond a period of six: months. After completion of six months, there was a break to avoid continuity in service for the posts of Masters beyond six months. The State contended that the teachers could not be considered for promotion unless the Board were satisfied that the teachers if ordinary graduate with training qualifications must have also studied two out of four subjects of History, Geography, Economics and Political Science. The teachers on the other hand contended that once the State Government had taken a decision as embodied in the letter dated 7 November, 1958 the policy of not allowing the teachers to continue beyond six months on temporary basis was nullifying the letter and spirit of the decision of the letter dated 7 November, 1958. The teachers also contended that the promotion of teachers to Masters is completely independent of any consideration like the combination of subjects. The High Court rightly held that letter dated 7 November, 1958 was subject only to two limitations. One was that teachers could not claim more than one fourth of the vacancies of the posts of Masters and the other was that the claim by way of promotion would be considered by the appointing authority on the basis of seniority-cum-merit. The High Court rightly held that the letter dated 7 November, 1958 was not subject to the condition of subjects combination being fulfilled. There are three categories of teachers-Science Masters, Mathematics Masters and Social Studies Masters. No condition of combination of subjects can be read into the letter of 7 November, 1958.The second conclusion of the High Court is correct that the teachers were to be treated as serving in that scale of pay continuously and not on six months basis.12. The third conclusion which the High Court arrived is correct that the teachers were to be considered for appointment to the posts of Masters to the extent of 25 per cent quota as recognised for their category of teachers on the basis of seniority-cum-merit without being subjected to the condition of subject combination.13. | 0[ds]The contention of the State that there was not to be a mass increase of scale of pay is unsound. Teachers who possessed degrees became entitled to scales of pay according to category A.The High Court rightly referred to the letter of the Secretary of the Department dated 24 September, 1957 that teachers holding B.A., B.T./B.A., B.Ed. qualifications would hence-forth be placed in categoryHigh Court rightly came to the conclusion that the scale of pay of Rs. 110-250 would be effective either from the date when the teachers would pass the examination of Bachelor of Teaching or its equivalent or 1 May, 1957, whichever is later. The High Court, however, gave the teachers the scales of salary confined to a period of 3 years and 2 months counting back from the date of the presentation of the writ petition. In other words, the High Court did not allow the teachers any claim prior toletter dated 7 November, 1958 was necessary because in spite of the revised grade of Rs. 110-250 having been granted to Bachelor in Teaching or equivalent thereof, they were not being appointed by process of promotion to the posts of Masters. The letter stated that "selection is to be made on the basis of seniority-cum-merit, due regard being paid to good reputation regarding character, popularity among students and parents and capacity to maintain discipline". The respondents claimed that according to the letter those of them who were Bachelor in Teaching or Bachelor in Education were entitled to be appointed to the posts of Masters. The teachers could not claim vacancies by promotion exceeding 25 per cent. Their claim for appointment by promotion had to take into consideration not merely their seniority but also their merit. This percentage of 25 as fixed by the letter is covered by Rule 7(ii) and the principle of selection for appointment is covered by Rule 7 clause (iii). Therefore, the earlier letter dated July 23, 1957 fixed the scale of pay on the basis of academic qualifications. The subsequent letter dated 7 November, 1958 recognised the right of promotion to the posts of Masters to the extent of 25 per cent.The High Court said that the contention of the State that the teachers could not be considered for promotion unless they satisfied the condition of subject combination namely, that if they were ordinary graduates with training qualifications, they must have studied two out of the four subjects, namely, History Geography, Economics and political Science is not supported by the letter dated 7 November, 1958. The High Court rightly said that the letter does not speak of any limitation of subject combination forHigh Court rightly held that letter dated 7 November, 1958 was subject only to two limitations. One was that teachers could not claim more than one fourth of the vacancies of the posts of Masters and the other was that the claim by way of promotion would be considered by the appointing authority on the basis of seniority-cum-merit. The High Court rightly held that the letter dated 7 November, 1958 was not subject to the condition of subjects combination being fulfilled. There are three categories of teachers-Science Masters, Mathematics Masters and Social Studies Masters. No condition of combination of subjects can be read into the letter of 7 November, 1958.The second conclusion of the High Court is correct that the teachers were to be treated as serving in that scale of pay continuously and not on six monthsthird conclusion which the High Court arrived is correct that the teachers were to be considered for appointment to the posts of Masters to the extent of 25 per cent quota as recognised for their category of teachers on the basis of seniority-cum-merit without being subjected to the condition of subject combination. | 0 | 2,049 | 683 | ### Instruction:
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letter dated 23 July, 1957 meant that a teacher who passed Bachelor of Teaching examination would be entitled to be appointed a Master and on being so appointed would be entitled to the scale of pay. With regard to the letter dated 7 November 1958 which stated that 25 per cent posts of B.T./B .Ed. Masters in Rs. 110-250 grade should be filled by promotion from amongst the teachers who were in lower grade, counsel for the State contended that teachers who were qualified by possessing B.T. B.Ed. degrees would be entitled to get 25 per cent of the posts provided the respective posts according to their subject combination were vacant.7. Rule 10 entitles the teachers to such scales of pay as may be authorised by the Government from time to time. The letter dated 23 July, 1957 shows that teachers who possess the degree of Bachelor of Teaching or its equivalent on 1 May 1957 will be entitled to scales of pay mentioned therein. Those who will pass the examination of Bachelor of Teaching thereafter will be entitled to their revised scale of pay with effect from the date they pass the examination.8. The contention of the State that there was not to be a mass increase of scale of pay is unsound. Teachers who possessed degrees became entitled to scales of pay according to category A.The High Court rightly referred to the letter of the Secretary of the Department dated 24 September, 1957 that teachers holding B.A., B.T./B.A., B.Ed. qualifications would hence-forth be placed in category A.9. The High Court rightly came to the conclusion that the scale of pay of Rs. 110-250 would be effective either from the date when the teachers would pass the examination of Bachelor of Teaching or its equivalent or 1 May, 1957, whichever is later. The High Court, however, gave the teachers the scales of salary confined to a period of 3 years and 2 months counting back from the date of the presentation of the writ petition. In other words, the High Court did not allow the teachers any claim prior to 1967.10. The letter dated 7 November, 1958 was necessary because in spite of the revised grade of Rs. 110-250 having been granted to Bachelor in Teaching or equivalent thereof, they were not being appointed by process of promotion to the posts of Masters. The letter stated that "selection is to be made on the basis of seniority-cum-merit, due regard being paid to good reputation regarding character, popularity among students and parents and capacity to maintain discipline". The respondents claimed that according to the letter those of them who were Bachelor in Teaching or Bachelor in Education were entitled to be appointed to the posts of Masters. The teachers could not claim vacancies by promotion exceeding 25 per cent. Their claim for appointment by promotion had to take into consideration not merely their seniority but also their merit. This percentage of 25 as fixed by the letter is covered by Rule 7(ii) and the principle of selection for appointment is covered by Rule 7 clause (iii). Therefore, the earlier letter dated July 23, 1957 fixed the scale of pay on the basis of academic qualifications. The subsequent letter dated 7 November, 1958 recognised the right of promotion to the posts of Masters to the extent of 25 per cent.The High Court said that the contention of the State that the teachers could not be considered for promotion unless they satisfied the condition of subject combination namely, that if they were ordinary graduates with training qualifications, they must have studied two out of the four subjects, namely, History Geography, Economics and political Science is not supported by the letter dated 7 November, 1958. The High Court rightly said that the letter does not speak of any limitation of subject combination for promotion.11. Some of the teachers were from time to time promoted to the posts of Masters but never continuously beyond a period of six: months. After completion of six months, there was a break to avoid continuity in service for the posts of Masters beyond six months. The State contended that the teachers could not be considered for promotion unless the Board were satisfied that the teachers if ordinary graduate with training qualifications must have also studied two out of four subjects of History, Geography, Economics and Political Science. The teachers on the other hand contended that once the State Government had taken a decision as embodied in the letter dated 7 November, 1958 the policy of not allowing the teachers to continue beyond six months on temporary basis was nullifying the letter and spirit of the decision of the letter dated 7 November, 1958. The teachers also contended that the promotion of teachers to Masters is completely independent of any consideration like the combination of subjects. The High Court rightly held that letter dated 7 November, 1958 was subject only to two limitations. One was that teachers could not claim more than one fourth of the vacancies of the posts of Masters and the other was that the claim by way of promotion would be considered by the appointing authority on the basis of seniority-cum-merit. The High Court rightly held that the letter dated 7 November, 1958 was not subject to the condition of subjects combination being fulfilled. There are three categories of teachers-Science Masters, Mathematics Masters and Social Studies Masters. No condition of combination of subjects can be read into the letter of 7 November, 1958.The second conclusion of the High Court is correct that the teachers were to be treated as serving in that scale of pay continuously and not on six months basis.12. The third conclusion which the High Court arrived is correct that the teachers were to be considered for appointment to the posts of Masters to the extent of 25 per cent quota as recognised for their category of teachers on the basis of seniority-cum-merit without being subjected to the condition of subject combination.13.
### Response:
0
### Explanation:
The contention of the State that there was not to be a mass increase of scale of pay is unsound. Teachers who possessed degrees became entitled to scales of pay according to category A.The High Court rightly referred to the letter of the Secretary of the Department dated 24 September, 1957 that teachers holding B.A., B.T./B.A., B.Ed. qualifications would hence-forth be placed in categoryHigh Court rightly came to the conclusion that the scale of pay of Rs. 110-250 would be effective either from the date when the teachers would pass the examination of Bachelor of Teaching or its equivalent or 1 May, 1957, whichever is later. The High Court, however, gave the teachers the scales of salary confined to a period of 3 years and 2 months counting back from the date of the presentation of the writ petition. In other words, the High Court did not allow the teachers any claim prior toletter dated 7 November, 1958 was necessary because in spite of the revised grade of Rs. 110-250 having been granted to Bachelor in Teaching or equivalent thereof, they were not being appointed by process of promotion to the posts of Masters. The letter stated that "selection is to be made on the basis of seniority-cum-merit, due regard being paid to good reputation regarding character, popularity among students and parents and capacity to maintain discipline". The respondents claimed that according to the letter those of them who were Bachelor in Teaching or Bachelor in Education were entitled to be appointed to the posts of Masters. The teachers could not claim vacancies by promotion exceeding 25 per cent. Their claim for appointment by promotion had to take into consideration not merely their seniority but also their merit. This percentage of 25 as fixed by the letter is covered by Rule 7(ii) and the principle of selection for appointment is covered by Rule 7 clause (iii). Therefore, the earlier letter dated July 23, 1957 fixed the scale of pay on the basis of academic qualifications. The subsequent letter dated 7 November, 1958 recognised the right of promotion to the posts of Masters to the extent of 25 per cent.The High Court said that the contention of the State that the teachers could not be considered for promotion unless they satisfied the condition of subject combination namely, that if they were ordinary graduates with training qualifications, they must have studied two out of the four subjects, namely, History Geography, Economics and political Science is not supported by the letter dated 7 November, 1958. The High Court rightly said that the letter does not speak of any limitation of subject combination forHigh Court rightly held that letter dated 7 November, 1958 was subject only to two limitations. One was that teachers could not claim more than one fourth of the vacancies of the posts of Masters and the other was that the claim by way of promotion would be considered by the appointing authority on the basis of seniority-cum-merit. The High Court rightly held that the letter dated 7 November, 1958 was not subject to the condition of subjects combination being fulfilled. There are three categories of teachers-Science Masters, Mathematics Masters and Social Studies Masters. No condition of combination of subjects can be read into the letter of 7 November, 1958.The second conclusion of the High Court is correct that the teachers were to be treated as serving in that scale of pay continuously and not on six monthsthird conclusion which the High Court arrived is correct that the teachers were to be considered for appointment to the posts of Masters to the extent of 25 per cent quota as recognised for their category of teachers on the basis of seniority-cum-merit without being subjected to the condition of subject combination.
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University of Rajasthan, Jaipur Vs. Roshan Lal Seth | obtain 36% of the aggregate marks in the four papers. So the University (the appellant) declared him unsuccessful in the M. A. Examination. Feeling aggrieved, he filed a writ petition in the Rajasthan High Court. The argument before the High Court was that as he has obtained 36% of the aggregate marks in the eight papers, he should have been declared successful in accordance with Regulation 12. The High Court has accepted this argument and has directed the University to declare the respondent as successful in the M. A. Examination. Hence this appeal by the University.2. The University is constituted under the University of Rajputana Act (hereinafter called the Act). The Act provides for the making of Ordinances and Regulations. The Ordiances are made by the syndicate under S. 29. The Regulations are made by the Academic Council under S. 31. The decision of the appeal turns on the construction of the following part of Regulation 12 :For M. A. Examination taken either at the end of the two years integrated course of study or in part, viz., the Previous and the Final. Candidates must obtain for a pass at least 30% of the aggregate marks in each subject, provided that if a candidate fails to secure 25% marks in each individual paper and also in the viva voce tests wherever prescribed, he will be deemed to have failed in the examination notwithstanding his having obtained the minimum percentage of marks required in the aggregate for the examination. The marks of the two examinations. Previous and Final, will count together for a place on the pass list of the Final Examinations. No division will be assigned on the result of the Previous Examination.First Division60 per cent of the aggregate marks."Second Division48 per centThird Division36 per cent3. The true meaning of this provision should be ascertained by reference to its language and context. Ordinance 210 provides that the examination for the degree of Master of Arts shall consist of two parts, namely, the Previous Examination and the Final Examination. Ordinance 212 provides that a candidate who, after passing the Previous M. A. Examination of the University has completed a regular course of study for one academic year in an affiliated college, shall be admitted to the Final Examination for the degree of Master of Arts. These Ordinances plainly show that if candidate takes the M. A. Examination in part, he has to appear not in one but in two examinations, the Previous Examination and the Final Examination. The language of Regulation 12 also leads to this very inference. The last part of the Regulation speaks of two examinations, the Previous and the Final. Having regard to this context and language, the first part of the above quoted Regulation may be split up in two parts in this manner: (1) "for M. A. Examination taken...at the end of the two years integrated course of study, a candidate must obtain for a pass at least 36% of the aggregate in each subject"; and (2) for M. A. Examination taken.... in part, viz., Previous and Final, a candidate must obtain for a pass at least 36% of the aggregate marks in each subject." In the second part the M. A. Examination is not a single examination, but consists of two examinations, the Previous and the Final. So in the second part the phrase For M. A. Examination" really means "For M. A. Previous Examination and M. A. Final Examination."In the result a candidate should obtain at least 36% of the aggregate marks in all the papers in the M. A. Previous Examination as well as in the M. A. Final Examination separately. The total marks obtained in the Previous and Final Examinations cannot be added to make up 36% of the aggregate marks for getting a pass in M. A. But when a candidate passes both the parts after obtaining the minimum marks in each paper and 36% in aggregate, the aggregate marks of both the examinations, namely, previous and final, will be counted for a place in the pass list, that is to say, for placing him in the First Division, Second Division or Third Division.4. Counsel for the respondent has submitted that the phrase "For the M. A. Examination" connotes a single examination. But the language and context of the Regulation do not support his argument. The High Court overlooked the context and plain language of the Regulation.5. The High Court has laid more stress on the words "in each subject" in the Regulation. The subject offered by the respondent no doubt was Economics. But it was his subject in the M. A. Previous Examination as well as in the M. A. Final Examination. So it was necessary for him to obtain at least 36% of the aggregate marks in this subject in the Previous Examination as well as in the Final Examination. In M. A. a candidate is required to take only one of the subjects enumerated in Ordinance 213. Ordinance 213 contains a list of 15 subjects. Economics is one of them. The phrase "in each subject" in the Regulation is likely to create an impression that a candidate has to offer more than one subject in the M. A. Examination. But on a fair reading of the Regulation we have no doubt in our mind as to what it means. A candidate must obtain for a pass at least 36% of the aggregate marks in the subject offered by him in the Previous Examination as well as in the Final Examination.6. As the language of the Regulation is plain and unambiguous, it is not legitimate to refer to its history to elucidate its meaning.7. Having regard to the foregoing discussion, we are of opinion that the High Courts construction of Regulation 12 is not correct. The appeal is accordingly allowed and the order of the High Court is set aside. However, in accordance with the earlier order of the Court, the appellant shall bear the costs of the respondent. | 1[ds]5. The High Court has laid more stress on the words "in each subject" in the Regulation. The subject offered by the respondent no doubt was Economics. But it was his subject in the M. A. Previous Examination as well as in the M. A. Final Examination. So it was necessary for him to obtain at least 36% of the aggregate marks in this subject in the Previous Examination as well as in the Final Examination. In M. A. a candidate is required to take only one of the subjects enumerated in Ordinance 213. Ordinance 213 contains a list of 15 subjects. Economics is one of them. The phrase "in each subject" in the Regulation is likely to create an impression that a candidate has to offer more than one subject in the M. A. Examination. But on a fair reading of the Regulation we have no doubt in our mind as to what it means. A candidate must obtain for a pass at least 36% of the aggregate marks in the subject offered by him in the Previous Examination as well as in the Final Examination.6. As the language of the Regulation is plain and unambiguous, it is not legitimate to refer to its history to elucidate its meaning.7. Having regard to the foregoing discussion, we are of opinion that the High Courts construction of Regulation 12 is not correct. The appeal is accordingly allowed and the order of the High Court is set aside. However, in accordance with the earlier order of the Court, the appellant shall bear the costs of the respondent. | 1 | 1,265 | 297 | ### Instruction:
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obtain 36% of the aggregate marks in the four papers. So the University (the appellant) declared him unsuccessful in the M. A. Examination. Feeling aggrieved, he filed a writ petition in the Rajasthan High Court. The argument before the High Court was that as he has obtained 36% of the aggregate marks in the eight papers, he should have been declared successful in accordance with Regulation 12. The High Court has accepted this argument and has directed the University to declare the respondent as successful in the M. A. Examination. Hence this appeal by the University.2. The University is constituted under the University of Rajputana Act (hereinafter called the Act). The Act provides for the making of Ordinances and Regulations. The Ordiances are made by the syndicate under S. 29. The Regulations are made by the Academic Council under S. 31. The decision of the appeal turns on the construction of the following part of Regulation 12 :For M. A. Examination taken either at the end of the two years integrated course of study or in part, viz., the Previous and the Final. Candidates must obtain for a pass at least 30% of the aggregate marks in each subject, provided that if a candidate fails to secure 25% marks in each individual paper and also in the viva voce tests wherever prescribed, he will be deemed to have failed in the examination notwithstanding his having obtained the minimum percentage of marks required in the aggregate for the examination. The marks of the two examinations. Previous and Final, will count together for a place on the pass list of the Final Examinations. No division will be assigned on the result of the Previous Examination.First Division60 per cent of the aggregate marks."Second Division48 per centThird Division36 per cent3. The true meaning of this provision should be ascertained by reference to its language and context. Ordinance 210 provides that the examination for the degree of Master of Arts shall consist of two parts, namely, the Previous Examination and the Final Examination. Ordinance 212 provides that a candidate who, after passing the Previous M. A. Examination of the University has completed a regular course of study for one academic year in an affiliated college, shall be admitted to the Final Examination for the degree of Master of Arts. These Ordinances plainly show that if candidate takes the M. A. Examination in part, he has to appear not in one but in two examinations, the Previous Examination and the Final Examination. The language of Regulation 12 also leads to this very inference. The last part of the Regulation speaks of two examinations, the Previous and the Final. Having regard to this context and language, the first part of the above quoted Regulation may be split up in two parts in this manner: (1) "for M. A. Examination taken...at the end of the two years integrated course of study, a candidate must obtain for a pass at least 36% of the aggregate in each subject"; and (2) for M. A. Examination taken.... in part, viz., Previous and Final, a candidate must obtain for a pass at least 36% of the aggregate marks in each subject." In the second part the M. A. Examination is not a single examination, but consists of two examinations, the Previous and the Final. So in the second part the phrase For M. A. Examination" really means "For M. A. Previous Examination and M. A. Final Examination."In the result a candidate should obtain at least 36% of the aggregate marks in all the papers in the M. A. Previous Examination as well as in the M. A. Final Examination separately. The total marks obtained in the Previous and Final Examinations cannot be added to make up 36% of the aggregate marks for getting a pass in M. A. But when a candidate passes both the parts after obtaining the minimum marks in each paper and 36% in aggregate, the aggregate marks of both the examinations, namely, previous and final, will be counted for a place in the pass list, that is to say, for placing him in the First Division, Second Division or Third Division.4. Counsel for the respondent has submitted that the phrase "For the M. A. Examination" connotes a single examination. But the language and context of the Regulation do not support his argument. The High Court overlooked the context and plain language of the Regulation.5. The High Court has laid more stress on the words "in each subject" in the Regulation. The subject offered by the respondent no doubt was Economics. But it was his subject in the M. A. Previous Examination as well as in the M. A. Final Examination. So it was necessary for him to obtain at least 36% of the aggregate marks in this subject in the Previous Examination as well as in the Final Examination. In M. A. a candidate is required to take only one of the subjects enumerated in Ordinance 213. Ordinance 213 contains a list of 15 subjects. Economics is one of them. The phrase "in each subject" in the Regulation is likely to create an impression that a candidate has to offer more than one subject in the M. A. Examination. But on a fair reading of the Regulation we have no doubt in our mind as to what it means. A candidate must obtain for a pass at least 36% of the aggregate marks in the subject offered by him in the Previous Examination as well as in the Final Examination.6. As the language of the Regulation is plain and unambiguous, it is not legitimate to refer to its history to elucidate its meaning.7. Having regard to the foregoing discussion, we are of opinion that the High Courts construction of Regulation 12 is not correct. The appeal is accordingly allowed and the order of the High Court is set aside. However, in accordance with the earlier order of the Court, the appellant shall bear the costs of the respondent.
### Response:
1
### Explanation:
5. The High Court has laid more stress on the words "in each subject" in the Regulation. The subject offered by the respondent no doubt was Economics. But it was his subject in the M. A. Previous Examination as well as in the M. A. Final Examination. So it was necessary for him to obtain at least 36% of the aggregate marks in this subject in the Previous Examination as well as in the Final Examination. In M. A. a candidate is required to take only one of the subjects enumerated in Ordinance 213. Ordinance 213 contains a list of 15 subjects. Economics is one of them. The phrase "in each subject" in the Regulation is likely to create an impression that a candidate has to offer more than one subject in the M. A. Examination. But on a fair reading of the Regulation we have no doubt in our mind as to what it means. A candidate must obtain for a pass at least 36% of the aggregate marks in the subject offered by him in the Previous Examination as well as in the Final Examination.6. As the language of the Regulation is plain and unambiguous, it is not legitimate to refer to its history to elucidate its meaning.7. Having regard to the foregoing discussion, we are of opinion that the High Courts construction of Regulation 12 is not correct. The appeal is accordingly allowed and the order of the High Court is set aside. However, in accordance with the earlier order of the Court, the appellant shall bear the costs of the respondent.
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Kallyani Vs. Narayanan And Ors | Bom LR 461), an ikrarnama was produced which showed that defined shares in the whole estate had been allotted to the several coparceners. There was a passage which gave liberty to any of the parties either to live together as a member of the joint family or to separate his own business Mahabir was given four annas share and others defined shares in the remainder. Contention raised was that Mahabir alone separated and others remained joint. Subsequent conduct was relied upon to substantiate the contention that they remained together. Negativing this contention it was held that the ikrarnama effected a separation of estate even if the parties elected either to have a partition of their shares by metes and bounds, or to continue to live together and enjoy their property in common as before. Whether they did one or the other would affect the mode of enjoyment, but not the tenure of the property on their interest in it. The ikrarnama effected a separation in estate, its legal construction and effect could not be controlled or altered by the subsequent conduct. Once the shares were determined and allotted, it was held consistently with Appovier case ((1886) 11 MIA 75 : 2 Sar 218 : 8 WR PC 1) that this converted them from joint holders into tenants-in-common.27. In Boddu Venkatakrishna Rao v. Boddu Satyavathi, the following passage in Mullas TRANSFER OF PROPERTY ACT (Fifth Edn.), was approved :"The principle of joint tenancy appears to be unknown to Hindu law, except in the case of coparcenary between the members of an undivided family."28. Once disruption of joint family status takes place as Lord Westbury puts it in Appoviers case ((1886) 11 MIA 75 : 2 Sar 218 : 8 WR PC 1), it covers both a division of right and division of property. If a document clearly shows the division of rights and status its legal construction and effect cannot be altered by evidence of subsequent conduct of parties.29. Now, in this case Ex. P-1 itself specifies the share of each member separately. There is no concept known to Hindu law that there could be a branch of a family wifewise. To illustrate, if a Hindu father has two wives and he has three male children by the first wife and two by the second, each wife constituting a branch with her children of the family is a concept foreign to Hindu law. Therefore, tavazhi wife-wise stated in Ex. P-1 have to be ignored and the contention that there was a partition amongst wife-wise branches as represented by each wife is equally untenable. Ex. P-1 did bring about a specification of shares and once such shares were defined by the father who had the power to define and vesting the same there was a disruption of joint family. There was thus a division of rights and division of property by allotment of shares. The mode of enjoyment immediately changed and members of such family ceased to be coparceners holding as joint tenants but they held as tenants-in-common. Subsequent conduct of some of them to stay together in the absence of any evidence of reunion as understood in law is of no consequence. In any event when Kesavan, the son of the second wife, sought and obtained physical partition of the properties allotted to him and left the family there being no evidence whether others agreed to remain united except the so-called evidence of subsequent conduct, which is irrelevant or of no consequence, disruption of status was complete. Therefore, the four sons of the first wife held the property as tenants-in-common.30. There is evidence in the form of some documents showing that defendant 1 was described as Karnavaran of a coparcenary of the four sons of the first wife of Karappan and that the property was enjoyed as a joint family property. In view of our conclusion that such subsequent conduct is not conclusive of any agreement to reunite, it is not necessary to examine the evidence.31. In view of our conclusion that since the execution of Ex. P-1 on January 25, 1910 or after the death of Karappan in February 1910, when Kesavan, the son of the second wife took his share of the property and left the family there was a disruption of the joint family and the sons of the Karappan by his first wife held the property, which remained for them after Kesavan obtained his share, not as joint tenants but as tenants-in-common, the plaintiff would be entitled to the share to which her deceased husband Raman was entitled. Raman had 1/4 share in A schedule properties which the plaintiff would be entitled to and therefore, there would be a preliminary decree in her favour to that effect. Plaintiffs claim to a share in that properties set out in Schedules B and C annexed to the plaint has been concurrently negatived by both the courts on the finding that they are the properties of defendant 1 and his wife and are not accretions to the property which devolved from Karappan. This concurrent finding of fact arrived at on appreciation of evidence appears to be correct and need not be disturbed. Therefore, plaintiffs suit with regard to a share in B and C schedule properties has been rightly dismissed.32. At the commencement of hearing of the appeal it was pointed out that original plaintiff Kalyani is dead and there is some dispute between her two daughters Yashoda and Janaki about succession to the estate of Kalyani. Both had applied to the exclusion of each other for being substituted as legal representative of the deceased. For purposes of this appeal both were substituted for the deceased appellant. It is not necessary to decide this question in this appeal because whoever of the two establishes her right to inherit the property of Kalyani would be entitled to the same but the dispute would be between Yashoda and Janaki and the other defendants have no right to be heard in that matter. | 1[ds]Thus, when property is described as tarvad property in a broad sense it is admitted to be joint family property. This also becomes clear from the recital in Ex. P-1 that properties in A and B schedules were tarvad properties in C schedule were claimed by him as his self-acquired properties and they were to be kept joint and were not sought to be dealt with by Ex. P-1. Therefore, to the extent Ex. P-1 purports to dispose of ancestral properties by will it would be ineffective as a will as testator Karappan had no power or authority to dispose of by will ancestral properties in his hand. And he has not attempted to dispose of his undivided share in the ancestral properties by Ex. P-1 it is not necessary here to examine the question whether Mitakshara law as administered in Tamil Nadu and Kerala enables as undivided coparcener to dispose of his share in joint family property by will. Therefore, Ex. P-1 is not effective as a will and the respondents did not invite us to affirm their rights under Ex. P-1 as if it is a bindingHindu father joint with his sons and governed Mitakshara law in contradictions to other manager of a Hindu undivided family or an ordinary coparcener enjoys the larger power to impose a partition on his sons with himself as well as amongst his sons inter se without the consent and this large power to divide the property by metes and bounds and to allocate the shares to each of his sons and to himself would certainly comprehend within its sweep the initial step, viz., to disrupt the joint family status which must either precede to be simultaneously taken with partition of property by metes anddoes, therefore, appear that a Hindu father governed by Mitakshara law has power to partition the joint family property belonging to the joint family consisting of himself and his sons and that this power comprehends the power to disrupt joint familythough the father has a right to make a partition of the joint family property in his hand, he has no right to make a partition by will of joint family property amongst various members of the family except, of course, if it would be made with theirif by Ex. P-1 Karappan attempted to make a partition of the property by his will, Ex. P-1 would be ineffective as a partition. By Ex. P-1 Karappan does (sic did) not divide his property by metes and bounds vesting the share of each in present in each of his sons.14. One thing that is not in dispute is that Karappan did not intend Ex. P-1 to be effective from the date on which it was executed. In his own words he states that he was seriously ill and as he would like to avoid a dispute in future in respect of his properties and, therefore, he resolved that his property shall be enjoyed after his death in the manner stated in Ex. P-1. He reserved to himself the full powers of disposition over all the properties more particularly described in the various schedules annexed to Ex. P-1 during his lifetime and whatever directions were given in Ex. P-1 were to be effective after his death. It is, therefore, inescapable that Ex. P-1 was not to be effective as a partition in broader sense, namely, dividing property by metes and bounds from the date on which it was executed. It was to be effective from a future date and that future uncertain event was the death of Karappan and that during the time he would remain alive he would deal with the properties at his sweet will. Further, there was no effective partition by metes and bounds by Ex. P-1 though the shares of sons were specified as also the provision for female members was made. If intention of the testator is to be gathered from the language of Ex. P-1 Karappan intended it to be a will to be effective after his death. He never intended it to be a partition in presenti. Therefore, Ex. P-1 cannot be effective as a deed of partition in the broader sense, i.e., partition by metes andHigh Court after referring the Brijraj Singh case (40 IA 161 : ILR 35 All 337 : 15 Bom LR 652) overlooked the fact that in accepting the deed before it, the Judicial Committee was impressed by the fact that it was intended to speak from the on which it was written and not future date, viz., death of the writer. Exhibit P-1 in terms reserves to Karappan his right to deal with the property at his sweet will and was to be operative after his death. The High Court completely overlooked this material difference. Assuming that Ex. P-1 was to be treated as family arrangement after the death of Karappan, the absence of any evidence of agreement amongst family members entitled to a share, to the terms of Ex. P-1 when it was executed, the absence of any dispute at or about the time Ex. P-1 was executed amongst the members of the family sought to be settled by Ex. P-1, and the absence of evidence that arrangement was necessary for the security of the family or property would wholly negative the contention that Ex. P-1 would furnish evidence of family arrangement. We have grave doubt whether a Hindu father can impose family arrangement sans direct evidence of consent of each of his sons, to be effective after his death. Therefore, Ex. P-1 does not furnish evidence of family arrangement.17. Now, if Ex. P-1 cannot be effective as a deed of partition inasmuch as it did not result in division of property by metes and bounds, its effect on continued joint family status may be examined. If it is disrupted joint family status by its very execution, there was thereafter no question of directing any family arrangement to be effective from a future date as per its terms and even though it may spell out a family arrangement what effect disruption of joint family status would have on the mode of succession has to bethe mere fact that the shares of the coparceners have been ascertained does not by itself necessarily lead to an inference that the family had separated. There may be reasons other than a contemplated immediate separation for ascertaining what the shares of the coparceners on a separation would be. It is also now beyond doubt that a member joint family can separate himself from other members of the joint family and is on separation entitled to have his share in the property ascertained and partitioned off for him and that the remaining coparceners without any special agreement amongst themselves may continue to be coparceners and to enjoy as members of a joint family what remained after such a partition of the family property. That the remaining members continued to be joint may, if disputed, be inferred from the way in which their family business was carried on after their previous coparcener had separated fromis no presumption that the rest of the coparceners continued to be joint. There is no presumption on the other side too that because one member of the family separated himself there has been separation with regard to all. It would be a question of fact to be determined in each case upon the evidence relating to the intention of the parties whether there was a separation amongst the other coparceners or they remained united. Except that four sons by Nani remained under one roof and were joint in food and laboured together there is no evidence that they agreed to constitute a coparcenary assuming that a coparcenary a creature of law could be created by agreement. And if Karappan specified even the share of each of his sons by Nani in Ex. P-1, this evidence of remaining together is hardly sufficient to warrant a conclusion that these four sons constituted a coparcenary. Ex. P-1 could not support such a conclusion and High Court was in error in spelling out such conclusion from Ex. P-1 overlooking its specific direction of a specified share of each of his sons and liability to pay owelty.Now, in this case Ex. P-1 itself specifies the share of each member separately. There is no concept known to Hindu law that there could be a branch of a family wifewise. To illustrate, if a Hindu father has two wives and he has three male children by the first wife and two by the second, each wife constituting a branch with her children of the family is a concept foreign to Hindu law. Therefore, tavazhi wife-wise stated in Ex. P-1 have to be ignored and the contention that there was a partition amongst wife-wise branches as represented by each wife is equally untenable. Ex. P-1 did bring about a specification of shares and once such shares were defined by the father who had the power to define and vesting the same there was a disruption of joint family. There was thus a division of rights and division of property by allotment of shares. The mode of enjoyment immediately changed and members of such family ceased to be coparceners holding as joint tenants but they held as tenants-in-common. Subsequent conduct of some of them to stay together in the absence of any evidence of reunion as understood in law is of no consequence. In any event when Kesavan, the son of the second wife, sought and obtained physical partition of the properties allotted to him and left the family there being no evidence whether others agreed to remain united except the so-called evidence of subsequent conduct, which is irrelevant or of no consequence, disruption of status was complete. Therefore, the four sons of the first wife held the property as tenants-in-common.30. There is evidence in the form of some documents showing that defendant 1 was described as Karnavaran of a coparcenary of the four sons of the first wife of Karappan and that the property was enjoyed as a joint family property. In view of our conclusion that such subsequent conduct is not conclusive of any agreement to reunite, it is not necessary to examine the evidence.31. In view of our conclusion that since the execution of Ex. P-1 on January 25, 1910 or after the death of Karappan in February 1910, when Kesavan, the son of the second wife took his share of the property and left the family there was a disruption of the joint family and the sons of the Karappan by his first wife held the property, which remained for them after Kesavan obtained his share, not as joint tenants but as tenants-in-common, the plaintiff would be entitled to the share to which her deceased husband Raman was entitled. Raman had 1/4 share in A schedule properties which the plaintiff would be entitled to and therefore, there would be a preliminary decree in her favour to that effect. Plaintiffs claim to a share in that properties set out in Schedules B and C annexed to the plaint has been concurrently negatived by both the courts on the finding that they are the properties of defendant 1 and his wife and are not accretions to the property which devolved from Karappan. This concurrent finding of fact arrived at on appreciation of evidence appears to be correct and need not be disturbed. Therefore, plaintiffs suit with regard to a share in B and C schedule properties has been rightly dismissed.32. At the commencement of hearing of the appeal it was pointed out that original plaintiff Kalyani is dead and there is some dispute between her two daughters Yashoda and Janaki about succession to the estate of Kalyani. Both had applied to the exclusion of each other for being substituted as legal representative of the deceased. For purposes of this appeal both were substituted for the deceased appellant. It is not necessary to decide this question in this appeal because whoever of the two establishes her right to inherit the property of Kalyani would be entitled to the same but the dispute would be between Yashoda and Janaki and the other defendants have no right to be heard in that matter. | 1 | 8,484 | 2,188 | ### Instruction:
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Bom LR 461), an ikrarnama was produced which showed that defined shares in the whole estate had been allotted to the several coparceners. There was a passage which gave liberty to any of the parties either to live together as a member of the joint family or to separate his own business Mahabir was given four annas share and others defined shares in the remainder. Contention raised was that Mahabir alone separated and others remained joint. Subsequent conduct was relied upon to substantiate the contention that they remained together. Negativing this contention it was held that the ikrarnama effected a separation of estate even if the parties elected either to have a partition of their shares by metes and bounds, or to continue to live together and enjoy their property in common as before. Whether they did one or the other would affect the mode of enjoyment, but not the tenure of the property on their interest in it. The ikrarnama effected a separation in estate, its legal construction and effect could not be controlled or altered by the subsequent conduct. Once the shares were determined and allotted, it was held consistently with Appovier case ((1886) 11 MIA 75 : 2 Sar 218 : 8 WR PC 1) that this converted them from joint holders into tenants-in-common.27. In Boddu Venkatakrishna Rao v. Boddu Satyavathi, the following passage in Mullas TRANSFER OF PROPERTY ACT (Fifth Edn.), was approved :"The principle of joint tenancy appears to be unknown to Hindu law, except in the case of coparcenary between the members of an undivided family."28. Once disruption of joint family status takes place as Lord Westbury puts it in Appoviers case ((1886) 11 MIA 75 : 2 Sar 218 : 8 WR PC 1), it covers both a division of right and division of property. If a document clearly shows the division of rights and status its legal construction and effect cannot be altered by evidence of subsequent conduct of parties.29. Now, in this case Ex. P-1 itself specifies the share of each member separately. There is no concept known to Hindu law that there could be a branch of a family wifewise. To illustrate, if a Hindu father has two wives and he has three male children by the first wife and two by the second, each wife constituting a branch with her children of the family is a concept foreign to Hindu law. Therefore, tavazhi wife-wise stated in Ex. P-1 have to be ignored and the contention that there was a partition amongst wife-wise branches as represented by each wife is equally untenable. Ex. P-1 did bring about a specification of shares and once such shares were defined by the father who had the power to define and vesting the same there was a disruption of joint family. There was thus a division of rights and division of property by allotment of shares. The mode of enjoyment immediately changed and members of such family ceased to be coparceners holding as joint tenants but they held as tenants-in-common. Subsequent conduct of some of them to stay together in the absence of any evidence of reunion as understood in law is of no consequence. In any event when Kesavan, the son of the second wife, sought and obtained physical partition of the properties allotted to him and left the family there being no evidence whether others agreed to remain united except the so-called evidence of subsequent conduct, which is irrelevant or of no consequence, disruption of status was complete. Therefore, the four sons of the first wife held the property as tenants-in-common.30. There is evidence in the form of some documents showing that defendant 1 was described as Karnavaran of a coparcenary of the four sons of the first wife of Karappan and that the property was enjoyed as a joint family property. In view of our conclusion that such subsequent conduct is not conclusive of any agreement to reunite, it is not necessary to examine the evidence.31. In view of our conclusion that since the execution of Ex. P-1 on January 25, 1910 or after the death of Karappan in February 1910, when Kesavan, the son of the second wife took his share of the property and left the family there was a disruption of the joint family and the sons of the Karappan by his first wife held the property, which remained for them after Kesavan obtained his share, not as joint tenants but as tenants-in-common, the plaintiff would be entitled to the share to which her deceased husband Raman was entitled. Raman had 1/4 share in A schedule properties which the plaintiff would be entitled to and therefore, there would be a preliminary decree in her favour to that effect. Plaintiffs claim to a share in that properties set out in Schedules B and C annexed to the plaint has been concurrently negatived by both the courts on the finding that they are the properties of defendant 1 and his wife and are not accretions to the property which devolved from Karappan. This concurrent finding of fact arrived at on appreciation of evidence appears to be correct and need not be disturbed. Therefore, plaintiffs suit with regard to a share in B and C schedule properties has been rightly dismissed.32. At the commencement of hearing of the appeal it was pointed out that original plaintiff Kalyani is dead and there is some dispute between her two daughters Yashoda and Janaki about succession to the estate of Kalyani. Both had applied to the exclusion of each other for being substituted as legal representative of the deceased. For purposes of this appeal both were substituted for the deceased appellant. It is not necessary to decide this question in this appeal because whoever of the two establishes her right to inherit the property of Kalyani would be entitled to the same but the dispute would be between Yashoda and Janaki and the other defendants have no right to be heard in that matter.
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lead to an inference that the family had separated. There may be reasons other than a contemplated immediate separation for ascertaining what the shares of the coparceners on a separation would be. It is also now beyond doubt that a member joint family can separate himself from other members of the joint family and is on separation entitled to have his share in the property ascertained and partitioned off for him and that the remaining coparceners without any special agreement amongst themselves may continue to be coparceners and to enjoy as members of a joint family what remained after such a partition of the family property. That the remaining members continued to be joint may, if disputed, be inferred from the way in which their family business was carried on after their previous coparcener had separated fromis no presumption that the rest of the coparceners continued to be joint. There is no presumption on the other side too that because one member of the family separated himself there has been separation with regard to all. It would be a question of fact to be determined in each case upon the evidence relating to the intention of the parties whether there was a separation amongst the other coparceners or they remained united. Except that four sons by Nani remained under one roof and were joint in food and laboured together there is no evidence that they agreed to constitute a coparcenary assuming that a coparcenary a creature of law could be created by agreement. And if Karappan specified even the share of each of his sons by Nani in Ex. P-1, this evidence of remaining together is hardly sufficient to warrant a conclusion that these four sons constituted a coparcenary. Ex. P-1 could not support such a conclusion and High Court was in error in spelling out such conclusion from Ex. P-1 overlooking its specific direction of a specified share of each of his sons and liability to pay owelty.Now, in this case Ex. P-1 itself specifies the share of each member separately. There is no concept known to Hindu law that there could be a branch of a family wifewise. To illustrate, if a Hindu father has two wives and he has three male children by the first wife and two by the second, each wife constituting a branch with her children of the family is a concept foreign to Hindu law. Therefore, tavazhi wife-wise stated in Ex. P-1 have to be ignored and the contention that there was a partition amongst wife-wise branches as represented by each wife is equally untenable. Ex. P-1 did bring about a specification of shares and once such shares were defined by the father who had the power to define and vesting the same there was a disruption of joint family. There was thus a division of rights and division of property by allotment of shares. The mode of enjoyment immediately changed and members of such family ceased to be coparceners holding as joint tenants but they held as tenants-in-common. Subsequent conduct of some of them to stay together in the absence of any evidence of reunion as understood in law is of no consequence. In any event when Kesavan, the son of the second wife, sought and obtained physical partition of the properties allotted to him and left the family there being no evidence whether others agreed to remain united except the so-called evidence of subsequent conduct, which is irrelevant or of no consequence, disruption of status was complete. Therefore, the four sons of the first wife held the property as tenants-in-common.30. There is evidence in the form of some documents showing that defendant 1 was described as Karnavaran of a coparcenary of the four sons of the first wife of Karappan and that the property was enjoyed as a joint family property. In view of our conclusion that such subsequent conduct is not conclusive of any agreement to reunite, it is not necessary to examine the evidence.31. In view of our conclusion that since the execution of Ex. P-1 on January 25, 1910 or after the death of Karappan in February 1910, when Kesavan, the son of the second wife took his share of the property and left the family there was a disruption of the joint family and the sons of the Karappan by his first wife held the property, which remained for them after Kesavan obtained his share, not as joint tenants but as tenants-in-common, the plaintiff would be entitled to the share to which her deceased husband Raman was entitled. Raman had 1/4 share in A schedule properties which the plaintiff would be entitled to and therefore, there would be a preliminary decree in her favour to that effect. Plaintiffs claim to a share in that properties set out in Schedules B and C annexed to the plaint has been concurrently negatived by both the courts on the finding that they are the properties of defendant 1 and his wife and are not accretions to the property which devolved from Karappan. This concurrent finding of fact arrived at on appreciation of evidence appears to be correct and need not be disturbed. Therefore, plaintiffs suit with regard to a share in B and C schedule properties has been rightly dismissed.32. At the commencement of hearing of the appeal it was pointed out that original plaintiff Kalyani is dead and there is some dispute between her two daughters Yashoda and Janaki about succession to the estate of Kalyani. Both had applied to the exclusion of each other for being substituted as legal representative of the deceased. For purposes of this appeal both were substituted for the deceased appellant. It is not necessary to decide this question in this appeal because whoever of the two establishes her right to inherit the property of Kalyani would be entitled to the same but the dispute would be between Yashoda and Janaki and the other defendants have no right to be heard in that matter.
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MR. ANURAG MITTAL Vs. MRS. SHAILY MISHRA MITTAL | Respondent, Ms. Rachna Aggarwal cannot be considered as a living spouse. Hence, Section 5 (i) is not attracted and the marriage between the Appellant and the Respondent cannot be declared as void.13. Sh. Sakha Ram Singh, learned Senior Counsel appearing for the Respondent placed reliance on a judgment of this Court in Lila Gupta (supra) to submit that the marriage between the Appellant and the Respondent held on 06.12.2011 is void as it was in violation of Section 15 of the Act. He relied upon the concurring judgment of Justice Pathak in support of his submission that the findings pertaining to Proviso to Section 15 cannot be made applicable to Section 15. He submitted that there is a qualitative difference between the period of incapacity set out in the Proviso during which a second marriage cannot be contracted and the bar for another marriage during the pendency of an appeal. We have already noted that Justice Pathak refrained from expressing any view on the expression of Section 15 of the Act. However, the scope and purport of Section 15 of the Act arise for consideration in the present case. Interpretation of Section 15 Interpretation has been explained by Cross in Statutory Interpretation as:"The meaning that the Court ultimately attaches to the statutory words will frequently be that which it believes members of the legislature attached to them, or the meaning which they would have attached to the words had the situation before the Court been present to their minds. Interpretation is the process by which the Court determines the meaning of a statutory provision for the purpose of applying it to the situation before it?.14. The Hindu Marriage Act is a social welfare legislation and a beneficent legislation and it has to be interpreted in a manner which advances the object of the legislation. The Act intends to bring about social reforms. 9 It is well known that this Court cannot interpret a socially beneficial legislation on the basis as if the words therein are cast in stone. 1015. The predominant nature of the purposive interpretation was recognized by this Court in Shailesh Dhairyawan v. Mohan Balkrishna Lulla 11 which is as follows:"33. We may also emphasise that the statutory interpretation of a provision is never static but is always dynamic. Though the literal rule of interpretation, till some time ago, was treated as the ?golden rule?, it is now the doctrine of purposive interpretation which is predominant, particularly in those cases where literal interpretation may not serve the purpose or may lead to absurdity. If it brings about an end which is at variance with the purpose of statute, that cannot be countenanced. Not only legal process thinkers such as Hart and Sacks rejected intentionalism as a grand strategy for statutory interpretation, and in its place they offered purposivism, this principle is now widely applied by the courts not only in this country but in many other legal systems as well.?16. In Salomon v. Salomon & Co Ltd. 12 , Lord Watson observed that :?In a Court of Law or Equity, what the legislature intended to be done or not to be done can only be legitimately ascertained from that which it has chosen to enact, either in express words or by reasonable and necessary implication.?In Black-Clawson International Ltd. v. Papierwerke Waldhof-Aschaffenburg AG 13 , Lord Reid held that:?We often say that we are looking for the intention of Parliament, but that is not quite accurate. We are seeking the meaning of the words which Parliament used. We are seeking not what Parliament meant but the true meaning of what they said.?17. It is also relevant to take note of Dy. Custodian v. Official Receiver 14 in which it was declared that?if it appears that the obvious aim and object of the statutory provisions would be frustrated by accepting the literal construction suggested by the Respondent, then it may be open to the Court to inquire whether an alternative construction which would serve the purpose of achieving the aim and object of the Act, is reasonably possible?18. Section 15 of the Act provides that it shall be lawful for either party to marry again after dissolution of a marriage if there is no right of appeal against the decree. A second marriage by either party shall be lawful only after dismissal of an appeal against the decree of divorce, if filed. If there is no right of appeal, the decree of divorce remains final and that either party to the marriage is free to marry again. In case an appeal is presented, any marriage before dismissal of the appeal shall not be lawful. The object of the provision is to provide protection to the person who has filed an appeal against the decree of dissolution of marriage and to ensure that the said appeal is not frustrated. The purpose of Section 15 of the Act is to avert complications that would arise due to a second marriage during the pendency of the appeal, in case the decree of dissolution of marriage is reversed. The protection that is afforded by Section 15 is primarily to a person who is contesting the decree of divorce.19. Aggrieved by the decree of divorce, the Appellant filed an appeal and obtained a stay of the decree. During the pendency of the appeal, there was a settlement between him and his former spouse. After entering into a settlement, he did not intend to contest the decree of divorce. His intention was made clear by filing of the application for withdrawal. It cannot be said that he has to wait till a formal order is passed in the appeal, or otherwise his marriage dated 06.12.2011 shall be unlawful. Following the principles of purposive construction, we are of the opinion that the restriction placed on a second marriage in Section 15 of the Act till the dismissal of an appeal would not apply to a case where parties have settled and decided not to pursue the appeal. | 1[ds]7. In the said judgment, this Court also had occasion to deal with the continuance of the marital tie even after the decree of divorce for the period of incapacity as provided in the Proviso to Section 15 of the Act. In the said context, this Court held as follows:13. T o say that such provision continues the marriage tie even after the decree of divorce for the period of incapacity is to attribute a certain status to the parties whose marriage is already dissolved by divorce and for which there is no legal sanction. A decree of divorce breaks the marital tie and the parties forfeit the status of husband and wife in relation to each other. Each one becomes competent to contract another marriage as provided byMerely because each one of them is prohibited from contracting a second marriage for a certain period it could not be said that despite there being a decree of divorce for certain purposes the first marriage subsists or is presumed to subsist. Some incident of marriage does survive the decree of divorce; say, liability to pay permanent alimony but on that account it cannot be said that the marriage subsists beyond the date of decree of divorce. Section 13 which provides for divorce in terms says that a marriage solemnised may on a petition presented by the husband or the wife be dissolved by a decree of divorce on one or more of the grounds mentioned in that section. The dissolution is complete once the decree is made, subject of course, to appeal. But a final decree of divorce in terms dissolves the marriage. No incident of such dissolved marriage can bridge and bind the parties whose marriage is dissolved by divorce at a time posterior to the date of decree. An incapacity for second marriage for a certain period does not have effect of treating the former marriage as subsisting. During the period of incapacity the parties cannot be said to be the spouses within the meaning of clause (i),(1) of Section 5. The word ?spouse? has been understood to connote a husband or a wife which term itself postulates a subsisting marriage. The word ?spouse? in(1) of Section 5 cannot be interpreted to mean a former spouse because even after the divorce when a second marriage is contracted if the former spouse is living that would not prohibit the parties from contracting the marriage within the meaning of clause (i) of(1) of Section 5. The expression ?spouse? in clause (i), subsection (1) of Section 5 by its very context would not include within its meaning the expression ?former spouse?. (underliningAfter a comprehensive review of the scheme of the Act and the legislative intent, this Court in Lila Gupta (supra) held that a marriage in contravention of the proviso to Section 15 is not void. Referring to Sections 5 and 11 of the Act, this Court found that a marriage contracted in breach of only some of the conditions renders the marriage void. This Court was also conscious of the absence of any penalty prescribed for contravention of the proviso to Section 15 of the Act. This Court referred to the negative expression ?it shall not be lawful? used in proviso to Section 15 which indicates that the prohibition was absolute. In spite of the absolute prohibition, this Court was of the view that a marriage contracted in violation of the proviso to Section 15 was not void. There was a further declaration that the dissolution of a marriage is in rem and unless and until a Court of appeal reversed it, marriage for all purposes was not subsisting. The dissolution of the marriage is complete once the decree is made, subject of course to appeal. This Court also decided that incapacity for second marriage for a certain period of time does not have the effect of treating the former marriage as subsisting and the expression ‘spouse? would not include within its meaning the expression ‘former spouse?.9. The majority judgment was concerned only with the interpretation of proviso to Section 15 of the Act. Justice Pathak in his concurring judgment referred to Section 15, but refrained from expressing any opinion on its interpretation.There is no dispute that the application for withdrawal of the appeal was filed on 28.11.2011 i.e. prior to the date of the marriage on 06.12.2011. We proceed to consider the point that whether the date of dismissal of the appeal relates back to the date of filing of the application for withdrawal of the appeal. Order XXI Rule 89 (2) of the Code of Civil Procedure, 1908 (hereinafter referred to as ?the CPC?) provides that unless an application filed under Order XXI Rule 90 of the CPC is withdrawn, a person shall not be entitled to make or prosecute an application under Order XXI Rule 89 of the CPC. In Shiv Prasad v. Durga Prasad,the contention of the Appellant therein that an application filed under the aforesaid Rule 90 does not stand withdrawn until an order to the effect is recorded by the Court, was not accepted. It was held that every applicant has a right to unconditionally withdraw his application and his unilateral act in that behalf is sufficient. No order of the Court is necessary permitting the withdrawal of the application. This Court concluded that the act of withdrawal is complete as soon as the applicant intimates the Court that he intends to withdraw the application. The High Court of Bombay in Anil Dinmani Shankar Joshi v. Chief Officer, Panvel Municipal Council, Panvelfollowed the judgment of this Court in Shiv Prasad (supra) and held that the said judgment is applicable to suits also. The High Court recognized the unconditional right of the plaintiff to withdraw his suit and held that the withdrawal would becomplete as soon as the plaintiff files his purshis of withdrawal.We have already noted that Justice Pathak refrained from expressing any view on the expression of Section 15 of the Act. However, the scope and purport of Section 15 of the Act arise for consideration in the present case. Interpretation of Section 15 Interpretation has been explained by Cross in Statutory Interpretationhe meaning that the Court ultimately attaches to the statutory words will frequently be that which it believes members of the legislature attached to them, or the meaning which they would have attached to the words had the situation before the Court been present to their minds. Interpretation is the process by which the Court determines the meaning of a statutoryprovision for the purpose of applying it to the situation before it?.The Hindu Marriage Act is a social welfare legislation and a beneficent legislation and it has to be interpreted in a manner which advances the object of the legislation. The Act intends to bring about social reforms. 9 It is well known that this Court cannot interpret a socially beneficial legislation on the basis as if the words therein are cast in stone. 1015. The predominant nature of the purposive interpretation was recognized by this Court in Shailesh Dhairyawan v. Mohan Balkrishna Lulla 11 which is as follows:33. We may also emphasise that the statutory interpretation of a provision is never static but is always dynamic. Though the literal rule of interpretation, till some time ago, was treated as the ?golden rule?, it is now the doctrine of purposive interpretation which is predominant, particularly in those cases where literal interpretation may not serve the purpose or may lead to absurdity. If it brings about an end which is at variance with the purpose of statute, that cannot be countenanced. Not only legal process thinkers such as Hart and Sacks rejected intentionalism as a grand strategy for statutory interpretation, and in its place they offered purposivism, this principle is now widely applied bya v.the courts not only in this country but in many other legal systems as well.Section 15 of the Act provides that it shall be lawful for either party to marry again after dissolution of a marriage if there is no right of appeal against the decree. A second marriage by either party shall be lawful only after dismissal of an appeal against the decree of divorce, if filed. If there is no right of appeal, the decree of divorce remains final and that either party to the marriage is free to marry again. In case an appeal is presented, any marriage before dismissal of the appeal shall not be lawful. The object of the provision is to provide protection to the person who has filed an appeal against the decree of dissolution of marriage and to ensure that the said appeal is not frustrated. The purpose of Section 15 of the Act is to avert complications that would arise due to a second marriage during the pendency of the appeal, in case the decree of dissolution of marriage is reversed. The protection that is afforded by Section 15 is primarily to a person who is contesting the decree of divorce.19. Aggrieved by the decree of divorce, the Appellant filed an appeal and obtained a stay of the decree. During the pendency of the appeal, there was a settlement between him and his former spouse. After entering into a settlement, he did not intend to contest the decree of divorce. His intention was made clear by filing of the application for withdrawal. It cannot be said that he has to wait till a formal order is passed in the appeal, or otherwise his marriage dated 06.12.2011 shall be unlawful. Following the principles of purposive construction, we are of the opinion that the restriction placed on a second marriage in Section 15 of the Act till the dismissal of an appeal would not apply to a case where parties have settled and decided not to pursue the appeal. | 1 | 4,952 | 1,791 | ### 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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Respondent, Ms. Rachna Aggarwal cannot be considered as a living spouse. Hence, Section 5 (i) is not attracted and the marriage between the Appellant and the Respondent cannot be declared as void.13. Sh. Sakha Ram Singh, learned Senior Counsel appearing for the Respondent placed reliance on a judgment of this Court in Lila Gupta (supra) to submit that the marriage between the Appellant and the Respondent held on 06.12.2011 is void as it was in violation of Section 15 of the Act. He relied upon the concurring judgment of Justice Pathak in support of his submission that the findings pertaining to Proviso to Section 15 cannot be made applicable to Section 15. He submitted that there is a qualitative difference between the period of incapacity set out in the Proviso during which a second marriage cannot be contracted and the bar for another marriage during the pendency of an appeal. We have already noted that Justice Pathak refrained from expressing any view on the expression of Section 15 of the Act. However, the scope and purport of Section 15 of the Act arise for consideration in the present case. Interpretation of Section 15 Interpretation has been explained by Cross in Statutory Interpretation as:"The meaning that the Court ultimately attaches to the statutory words will frequently be that which it believes members of the legislature attached to them, or the meaning which they would have attached to the words had the situation before the Court been present to their minds. Interpretation is the process by which the Court determines the meaning of a statutory provision for the purpose of applying it to the situation before it?.14. The Hindu Marriage Act is a social welfare legislation and a beneficent legislation and it has to be interpreted in a manner which advances the object of the legislation. The Act intends to bring about social reforms. 9 It is well known that this Court cannot interpret a socially beneficial legislation on the basis as if the words therein are cast in stone. 1015. The predominant nature of the purposive interpretation was recognized by this Court in Shailesh Dhairyawan v. Mohan Balkrishna Lulla 11 which is as follows:"33. We may also emphasise that the statutory interpretation of a provision is never static but is always dynamic. Though the literal rule of interpretation, till some time ago, was treated as the ?golden rule?, it is now the doctrine of purposive interpretation which is predominant, particularly in those cases where literal interpretation may not serve the purpose or may lead to absurdity. If it brings about an end which is at variance with the purpose of statute, that cannot be countenanced. Not only legal process thinkers such as Hart and Sacks rejected intentionalism as a grand strategy for statutory interpretation, and in its place they offered purposivism, this principle is now widely applied by the courts not only in this country but in many other legal systems as well.?16. In Salomon v. Salomon & Co Ltd. 12 , Lord Watson observed that :?In a Court of Law or Equity, what the legislature intended to be done or not to be done can only be legitimately ascertained from that which it has chosen to enact, either in express words or by reasonable and necessary implication.?In Black-Clawson International Ltd. v. Papierwerke Waldhof-Aschaffenburg AG 13 , Lord Reid held that:?We often say that we are looking for the intention of Parliament, but that is not quite accurate. We are seeking the meaning of the words which Parliament used. We are seeking not what Parliament meant but the true meaning of what they said.?17. It is also relevant to take note of Dy. Custodian v. Official Receiver 14 in which it was declared that?if it appears that the obvious aim and object of the statutory provisions would be frustrated by accepting the literal construction suggested by the Respondent, then it may be open to the Court to inquire whether an alternative construction which would serve the purpose of achieving the aim and object of the Act, is reasonably possible?18. Section 15 of the Act provides that it shall be lawful for either party to marry again after dissolution of a marriage if there is no right of appeal against the decree. A second marriage by either party shall be lawful only after dismissal of an appeal against the decree of divorce, if filed. If there is no right of appeal, the decree of divorce remains final and that either party to the marriage is free to marry again. In case an appeal is presented, any marriage before dismissal of the appeal shall not be lawful. The object of the provision is to provide protection to the person who has filed an appeal against the decree of dissolution of marriage and to ensure that the said appeal is not frustrated. The purpose of Section 15 of the Act is to avert complications that would arise due to a second marriage during the pendency of the appeal, in case the decree of dissolution of marriage is reversed. The protection that is afforded by Section 15 is primarily to a person who is contesting the decree of divorce.19. Aggrieved by the decree of divorce, the Appellant filed an appeal and obtained a stay of the decree. During the pendency of the appeal, there was a settlement between him and his former spouse. After entering into a settlement, he did not intend to contest the decree of divorce. His intention was made clear by filing of the application for withdrawal. It cannot be said that he has to wait till a formal order is passed in the appeal, or otherwise his marriage dated 06.12.2011 shall be unlawful. Following the principles of purposive construction, we are of the opinion that the restriction placed on a second marriage in Section 15 of the Act till the dismissal of an appeal would not apply to a case where parties have settled and decided not to pursue the appeal.
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period of time does not have the effect of treating the former marriage as subsisting and the expression ‘spouse? would not include within its meaning the expression ‘former spouse?.9. The majority judgment was concerned only with the interpretation of proviso to Section 15 of the Act. Justice Pathak in his concurring judgment referred to Section 15, but refrained from expressing any opinion on its interpretation.There is no dispute that the application for withdrawal of the appeal was filed on 28.11.2011 i.e. prior to the date of the marriage on 06.12.2011. We proceed to consider the point that whether the date of dismissal of the appeal relates back to the date of filing of the application for withdrawal of the appeal. Order XXI Rule 89 (2) of the Code of Civil Procedure, 1908 (hereinafter referred to as ?the CPC?) provides that unless an application filed under Order XXI Rule 90 of the CPC is withdrawn, a person shall not be entitled to make or prosecute an application under Order XXI Rule 89 of the CPC. In Shiv Prasad v. Durga Prasad,the contention of the Appellant therein that an application filed under the aforesaid Rule 90 does not stand withdrawn until an order to the effect is recorded by the Court, was not accepted. It was held that every applicant has a right to unconditionally withdraw his application and his unilateral act in that behalf is sufficient. No order of the Court is necessary permitting the withdrawal of the application. This Court concluded that the act of withdrawal is complete as soon as the applicant intimates the Court that he intends to withdraw the application. The High Court of Bombay in Anil Dinmani Shankar Joshi v. Chief Officer, Panvel Municipal Council, Panvelfollowed the judgment of this Court in Shiv Prasad (supra) and held that the said judgment is applicable to suits also. The High Court recognized the unconditional right of the plaintiff to withdraw his suit and held that the withdrawal would becomplete as soon as the plaintiff files his purshis of withdrawal.We have already noted that Justice Pathak refrained from expressing any view on the expression of Section 15 of the Act. However, the scope and purport of Section 15 of the Act arise for consideration in the present case. Interpretation of Section 15 Interpretation has been explained by Cross in Statutory Interpretationhe meaning that the Court ultimately attaches to the statutory words will frequently be that which it believes members of the legislature attached to them, or the meaning which they would have attached to the words had the situation before the Court been present to their minds. Interpretation is the process by which the Court determines the meaning of a statutoryprovision for the purpose of applying it to the situation before it?.The Hindu Marriage Act is a social welfare legislation and a beneficent legislation and it has to be interpreted in a manner which advances the object of the legislation. The Act intends to bring about social reforms. 9 It is well known that this Court cannot interpret a socially beneficial legislation on the basis as if the words therein are cast in stone. 1015. The predominant nature of the purposive interpretation was recognized by this Court in Shailesh Dhairyawan v. Mohan Balkrishna Lulla 11 which is as follows:33. We may also emphasise that the statutory interpretation of a provision is never static but is always dynamic. Though the literal rule of interpretation, till some time ago, was treated as the ?golden rule?, it is now the doctrine of purposive interpretation which is predominant, particularly in those cases where literal interpretation may not serve the purpose or may lead to absurdity. If it brings about an end which is at variance with the purpose of statute, that cannot be countenanced. Not only legal process thinkers such as Hart and Sacks rejected intentionalism as a grand strategy for statutory interpretation, and in its place they offered purposivism, this principle is now widely applied bya v.the courts not only in this country but in many other legal systems as well.Section 15 of the Act provides that it shall be lawful for either party to marry again after dissolution of a marriage if there is no right of appeal against the decree. A second marriage by either party shall be lawful only after dismissal of an appeal against the decree of divorce, if filed. If there is no right of appeal, the decree of divorce remains final and that either party to the marriage is free to marry again. In case an appeal is presented, any marriage before dismissal of the appeal shall not be lawful. The object of the provision is to provide protection to the person who has filed an appeal against the decree of dissolution of marriage and to ensure that the said appeal is not frustrated. The purpose of Section 15 of the Act is to avert complications that would arise due to a second marriage during the pendency of the appeal, in case the decree of dissolution of marriage is reversed. The protection that is afforded by Section 15 is primarily to a person who is contesting the decree of divorce.19. Aggrieved by the decree of divorce, the Appellant filed an appeal and obtained a stay of the decree. During the pendency of the appeal, there was a settlement between him and his former spouse. After entering into a settlement, he did not intend to contest the decree of divorce. His intention was made clear by filing of the application for withdrawal. It cannot be said that he has to wait till a formal order is passed in the appeal, or otherwise his marriage dated 06.12.2011 shall be unlawful. Following the principles of purposive construction, we are of the opinion that the restriction placed on a second marriage in Section 15 of the Act till the dismissal of an appeal would not apply to a case where parties have settled and decided not to pursue the appeal.
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Waverly Jute Mills Co. Ltd Vs. Raymon & Company (India) Pvt. Ltd | case the position is different. We have an independent agreement by which the parties agreed to refer the disputes to arbitration. Pursuant to this agreement, contracts were entered into and when the plaintiffs made a claim against the defendants, the defendants denied their liability. Therefore, what was denied was not the jurisdiction of the arbitrators, not the submission clause, but business done pursuant to the submission clause and to which the submission clause applied." That in our judgment is a correct statement of the true legal position.20. The point then for decision is whether there is in this case an agreement for reference to arbitration apart from cl. 14 of the contract. It is not contended for the appellants that there was any express agreement between the parties for referring the disputes under the contract dated September 7, 1955 to arbitrators. All that is said is that the respondents filed statements before the arbitrators setting out their defence on the merits, and that must be construed as an independent agreement for arbitration and the decisions in National Fire and General Insurance Co. Ltd. v. Union of India AIR 1956 Cal 11 , and Pratabmull Rameswar v. K C. Sethia Ltd. 64 Cal WN 616: (AIR 1960 Cal 702 ), are cited as authorities in support of this contention.21. Now an agreement for arbitration is the very foundation on which the jurisdiction of the arbitrators to act rests, and where that is not in existence, at the time when they enter on their duties, the proceedings must be held to be wholly without jurisdiction. And this defect is not cured by the appearance of the parties in those proceedings, if that is without protest, because it is well settled that consent cannot confer jurisdiction. But in such a case there is nothing to prevent the parties from entering into a fresh agreement to refer the dispute to arbitration while it is pending adjudication before the arbitrators, and in that event the proceedings thereafter before them might be upheld as referable to that agreement, and the award will not be open to attack as without jurisdiction. But it will make all the difference in the result whether the parties have entered into an arbitration agreement as defined in S. 2 (a) of the Arbitration Act or have merely taken steps in the conduct of proceedings assumed or believed to be valid.In the former case the award will be valid; in the latter, a nullity.22. Now what are the facts in the present case? We have gone through the statements filed by the respondents before the arbitrators, and we do not find anything therein out of which a new agreement to refer the dispute to arbitration could be spelt. The respondents merely contested the claim on the merits, and then added:". The sellers submit that this reference is improper, unwarranted, frivolous and vexatious and should be dismissed with costs". It is impossible to read this statement as meaning an agreement to refer to arbitration.23. The decisions in National Fire and General Insurance Co. Ltd.s case, AIR1956 Cal 11 and Pratabmull Rameswars case, 64 Cal WN 616: (AIR 1960 Cal 702 ), relied on for the appellants are not really in point. In both these cases there was a valid submission on which the arbitrators proceeded to act. Before them the parties filed statements and therein they put forward a claim which was not actually covered by the reference, and invited them to give their decision thereon. The party against whom the award had gone contended that the arbitrators had acted without jurisdiction in deciding that claim. In overruling this contention the Court held that it was open to the parties to enlarge the scope of a reference by inclusion of a fresh dispute, that they must be held to have done that when they filed their statements, putting forward claims not covered by the original agreement, that these statements satisfied the requirements of S.2(a) of the Arbitration Act, and that it was competent to the arbitrators to decide the dispute. The point to be noticed is that in both these cases there was no want of initial jurisdiction, but a feeding of existing jurisdiction by an enlargement of the scope of the reference. That this does not involve any question of jurisdiction in the arbitrators will be clear from the scheme of the Act. If an award deals with a matter not covered by the agreement it could either be modified under S. 15 (a) or remitted under S. 16 (1) (a). And where such matter is dealt with on the invitation of the parties contained in the statements, there can be no difficulty in holding that the arbitrators acted within jurisdiction. In the present case the arbitrators had no jurisdiction when they entered on their duties, nor is it established that there was any subsequent agreement which could be held to be a submission of the question as to the validity of the contracts. We are accordingly of the opinion that the respondents are not precluded by what they did before the arbitrators from agitating the question of the validity of the contracts in the present proceedings.24. (4) The last contention of the appellants is that the contracts dated September 7, 1955 and October 17, 1955, are non-transferable specific delivery contracts, as defined in S. 2(f) of the Act and under S. 18 they are exempt from the operation of S. 17, and that they are therefore not hit by the notification dated October 29, 1953. The facts are similar to those considered by this Court in Khardah Co. Ltd. case C. A. Nos. 98 and 99 of 1960 D/- 4-5-1962 : (AIR 1962 SC 1810 ), with which these appeals were heard, and for the reasons given by us in our judgment in those appeals delivered to-day, we accept the contention of the appellants, and hold that the contracts in question are not hit by the notification dated October 29, 1953. | 1[ds]This statute was enacted by Parliament and received the assent of the President on December 26, 1952. Its validity is attacked on two grounds, that Parliament had no competence to enact it, and that the provisions of the Act are repugnant to Art. 14 and Art. 19 (1) (g) of the Constitution and therefore void. If this contention is well founded, then the notification dated October 29, 1953 which was issued by the Central Government in exercise of the powers conferred by S. 17 of the Act would be null and void.6. Dealing first with the question as to the competence of Parliament to enact the impugned law, it will be convenient to set out the entries in the Legislative Lists in Seventh Schedule of the Constitution bearing on this question.List I-Entry 48-Stock Exchanges and Futures Markets.List II- Entry 26 - Trade and commerce within the State subject to the provision of entry 33 of List III.Entry 27-Production, supply and distribution of goods subject to the provision of entry 33 of List III.List III - Entry 7-Contracts, including partnership, agency, contracts of carriage, and other special forms of contracts, but not including contracts, but not including contracts relating to agriculturalstatute makes a distinction between ready delivery contracts and forward contracts. When a contract provides for the delivery of goods and payment of price there for either immediately or within a period not exceeding eleven days it is a ready delivery contract.All other contracts are forward contracts. Forward contracts are again divided into two categories specific delivery contracts and non-transferable specific delivery contracts. Specific delivery contracts mean forward contracts which provide for actual delivery of specific goods at the price fixed during a specified future period. Non-transferable specific delivery contracts are specific delivery contracts the rights or liabilities under which are not transferable. Section 15 confers power on the Government to issue notifications declaring illegal forward contracts with reference to such goods or class of goods and in such areas as may be specified. Section 17 authorises the Government to prohibit by notification any forward contract for the sale or purchase of any goods or class of goods to which the provisions of S. 15 have not been made applicable. Section 18 exempts non-transferable specific delivery contracts from the operation of these sections. Thus the law is what it purports to be a law regulating Forwardwould be noticed that both the entries 26 and 27 in List II are subject to entry 33 in List III. Entry 33 as it now stands is: "Trade and commerce in, and the Production, supply and distribution of ..............(e) raw jute." The impugned Act in so far as it relates to raw jute- and that is what we are concerned with in these appeals - will clearly be intra vires if it fell under this entry. But it should be mentioned that cl. (e) in entry 33 was inserted by the Constitution (Third Amendment) Act, 1959 and as the impugned Act. was passed in 1952, its validity must be determined on the provisions of the Constitution as they stood prior to the Amendment Act in 1954 and entry 33 in List III therefore must be excluded from consideration.We are unable to agree with this contention. Market no doubt ordinarily means a place where business is being transacted. That was probably all that meant at a time when trade was not developed and when transactions took place at specified places. But with the development of commerce, bargains came to be concluded more often than not through correspondence and the connotation of the word Market underwent a corresponding expansion. In modern parlance the word market has come to mean business as well as the place where business is carried on. Labour Market for example, is not a place where labourers are recruited but the conditions of the business of labour. The word market being thus capable of signifying both business and the place where the business is carried on, the question in what sense it is used in a particular statute must be decided on a consideration of the context of that statute. Thus in AIR -1925 Mad 1095 and 1956-2 Mad LJ 563 the question arose with reference to provisions as to licensing by local authorities, and for that purpose market was interpreted as meaning a place. So we must examine what the word market means in entry 48 "futures Markets in List I. The word Futures is thus defined in Encyclopaedia Britannica " "contracts which consist of a promise to deliver specified qualities of some commodity at a specified future time. The obligation is for a single quantity in a given month..................... Futures are thus. a form of security analogous to a bond or promissory note". In this sense a market can have reference only to business and not to any location. In our opinion a legislation on Forward Contracts would be a legislation on Futuresthe two entries relate to the powers mutually exclusive of two different legislatures, the question is how these two are to be reconciled. Now it is a rule of construction as well established as that on which the appellants rely, that the entries in the Lists should be so construed as to give effect to all of them and that a construction which will result in any of them being rendered futile or otiose must be avoided. It follows from this that where there are two entries, one general in its character and the other specific, the former must be construed as excluding the latter. This is only an application of the general maxim that Generalia specialibus non derogant. It is obvious that if entry 26 is to be construed as comprehending Forward Contracts, then "Futures Markets" in entry 48 will be rendered useless. We are therefore of opinion that legislation on Forward Contracts must be held to fall within the exclusive competence of the Union under entry 48 in List I.We are unable to accept this contention. The validity of the West Bengal Jute Goods Futures Ordinance. 1949, had to be judged in accordance with the provisions of the Government of India Act, 1935, which was the Constitution Act then in force. In that Act there was no specific entry relating to Futures Markets. Such an entry was introduced for the first time in the present Constitution in 1950.The contest in Bhuwalka Brothers Ltd. case AIR 1952 SC 740 therefore was not between a general entry on trade and commerce and a specific entry on the futures markets, as in the present case, but between Trade and commerce in List II and Contracts in List III. In the absence of a specific entry like the one contained in entry 48 in List I, the decision in Bhuwalka Brothers Ltd. case AIR 1952 Cal 740 (SB) would be correct but it is no longer law in view of the change in the Constitution.14. In the present case the question was also raised whether the impugned legislation would fall under entry 7 of List III. While the respondents insisted that it fell under entry 48 in List I, they were also prepared, in case that contention failed, to fall back on entry 7 in List III as a second line of defence. Entry 7 is general in its terms and cannot prevail as against specific entry such as entry 48 in List 1 or 26 in List II. On this point, we are in agreement with the decision in Bhuwalka Brothers Ltd. case AIR 1952 Cal 740 (SB). In the result we must hold that the attack on the impugned Act on the ground of legislative incompetence mustfar as Art. 14 is concerned, the question is now concluded by the decision of this Court in Raghubar Dayal Jai Prakash v. Union of India, W. P. Nos. 22 to 26 and 42 of 1959 D/- 12-9-61 (AIR 1962 SC 263 )where it has been held that impugned Act does not infringe that Article and is valid. This point is therefore no longer open to debate and indeed the appellants addressed no arguments on it.16. Then as regards the attack based on Art. 19 (1) (g) the position is that though the appellants raised this contention in the pleadings they did not press it before the learned Judges in the Court below because there was a decision of the Bench of the Calcutta High Court which had decided the point against the appellants. The point, however, was taken on the grounds of appeal to this Court, and has been sought to be pressed beforeare of opinion that those observations cannot be read as negativing the presumption as to the constitutionality of a statute. But it is unnecessary to say more about it, as the appellants abandoned this point after some argument. This contention also must therefore be found against thequestion has been considered by us in Khardah Co. Ltd. v. Raymon and Co. (India) (P) Ltd. CA Nos. 98 and 99 of 1960 D/ 4-5-1962 : (AIR 1962 SC 1810 ) with which these appeals were heard and therein we have held that if a contract is illegal and void, an arbitration clause which is one of the terms thereof, must also perish along with it and that a dispute relating to the validity of a contract is in such cases for the Court and not for the arbitrators to decide. Following that decision we must overrule this contention.The point for decision is as to the true effect of what happened before the arbitrators on their jurisdiction to hear the dispute. The principles applicable in the determination of this question are well settled. A dispute as to the validity of a contract could be the subject-matter of an agreement of arbitration in the same manner as a dispute relating to a claim made under the contract. But such an agreement would be effective and operative only when it is separate from and independent of the contract which is impugned as illegal. Where, however, it is a term of the very contract whose validity is in question, it has, as held by us in Khardah Co. Ltd. case, C. A Nos. 98 and 99 of 1960 D/- 4-5-1962: (AIR 1962 SC 1810 ), no existence apart from the impugned contract and must perish withdecision directly bearing on this distinction is the one in East India Trading Co. New York v. Badat and Co. ILR (1959) Bom. 1004 : (AIR 1959 Bom. 414 ). There the facts were that there was a general agreement between the parties as to the terms on which they should do business and it was provided therein that all disputes arising out of the contract should be settled by arbitration. Subsequent thereto the parties entered into several contracts and then a dispute arose with reference to one of them. One of the parties denied the contracts and the question was whether an award passed by the arbitrators with reference to that dispute was without jurisdiction. In holding that the arbitrators had jurisdiction to decide the matter by virtue of the agreement antecedent to the disputed one, the Court observed: "Now, the principle of the matter is this that when a party denies the arbitration agreement, the very basis on which the arbitrator can act is challenged and therefore the Court have taken the view that in such a case the arbitrator has no jurisdiction to decide whether he himself has jurisdiction to adjudicate upon thethe arbitration agreement is part and parcel of the contract itself, by denying the factum of the contract the party is denying the submission clause and denying the jurisdiction of the arbitrators. But in this case the position is different. We have an independent agreement by which the parties agreed to refer the disputes to arbitration. Pursuant to this agreement, contracts were entered into and when the plaintiffs made a claim against the defendants, the defendants denied their liability. Therefore, what was denied was not the jurisdiction of the arbitrators, not the submission clause, but business done pursuant to the submission clause and to which the submission clause applied." That in our judgment is a correct statement of the true legalhave gone through the statements filed by the respondents before the arbitrators, and we do not find anything therein out of which a new agreement to refer the dispute to arbitration could be spelt. The respondents merely contested the claim on the merits, and then added:". The sellers submit that this reference is improper, unwarranted, frivolous and vexatious and should be dismissed with costs". It is impossible to read this statement as meaning an agreement to refer to arbitration.23. The decisions in National Fire and General Insurance Co. Ltd.s case, AIR1956 Cal 11 and Pratabmull Rameswars case, 64 Cal WN 616: (AIR 1960 Cal 702 ), relied on for the appellants are not really in point. In both these cases there was a valid submission on which the arbitrators proceeded to act. Before them the parties filed statements and therein they put forward a claim which was not actually covered by the reference, and invited them to give their decision thereon. The party against whom the award had gone contended that the arbitrators had acted without jurisdiction in deciding that claim. In overruling this contention the Court held that it was open to the parties to enlarge the scope of a reference by inclusion of a fresh dispute, that they must be held to have done that when they filed their statements, putting forward claims not covered by the original agreement, that these statements satisfied the requirements of S.2(a) of the Arbitration Act, and that it was competent to the arbitrators to decide the dispute. The point to be noticed is that in both these cases there was no want of initial jurisdiction, but a feeding of existing jurisdiction by an enlargement of the scope of the reference. That this does not involve any question of jurisdiction in the arbitrators will be clear from the scheme of the Act. If an award deals with a matter not covered by the agreement it could either be modified under S. 15 (a) or remitted under S. 16 (1) (a). And where such matter is dealt with on the invitation of the parties contained in the statements, there can be no difficulty in holding that the arbitrators acted within jurisdiction. In the present case the arbitrators had no jurisdiction when they entered on their duties, nor is it established that there was any subsequent agreement which could be held to be a submission of the question as to the validity of the contracts. We are accordingly of the opinion that the respondents are not precluded by what they did before the arbitrators from agitating the question of the validity of the contracts in the presentfacts are similar to those considered by this Court in Khardah Co. Ltd. case C. A. Nos. 98 and 99 of 1960 D/- 4-5-1962 : (AIR 1962 SC 1810 ), with which these appeals were heard, and for the reasons given by us in our judgment in those appeals delivered to-day, we accept the contention of the appellants, and hold that the contracts in question are not hit by the notification dated October 29, 1953. | 1 | 6,118 | 2,781 | ### Instruction:
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case the position is different. We have an independent agreement by which the parties agreed to refer the disputes to arbitration. Pursuant to this agreement, contracts were entered into and when the plaintiffs made a claim against the defendants, the defendants denied their liability. Therefore, what was denied was not the jurisdiction of the arbitrators, not the submission clause, but business done pursuant to the submission clause and to which the submission clause applied." That in our judgment is a correct statement of the true legal position.20. The point then for decision is whether there is in this case an agreement for reference to arbitration apart from cl. 14 of the contract. It is not contended for the appellants that there was any express agreement between the parties for referring the disputes under the contract dated September 7, 1955 to arbitrators. All that is said is that the respondents filed statements before the arbitrators setting out their defence on the merits, and that must be construed as an independent agreement for arbitration and the decisions in National Fire and General Insurance Co. Ltd. v. Union of India AIR 1956 Cal 11 , and Pratabmull Rameswar v. K C. Sethia Ltd. 64 Cal WN 616: (AIR 1960 Cal 702 ), are cited as authorities in support of this contention.21. Now an agreement for arbitration is the very foundation on which the jurisdiction of the arbitrators to act rests, and where that is not in existence, at the time when they enter on their duties, the proceedings must be held to be wholly without jurisdiction. And this defect is not cured by the appearance of the parties in those proceedings, if that is without protest, because it is well settled that consent cannot confer jurisdiction. But in such a case there is nothing to prevent the parties from entering into a fresh agreement to refer the dispute to arbitration while it is pending adjudication before the arbitrators, and in that event the proceedings thereafter before them might be upheld as referable to that agreement, and the award will not be open to attack as without jurisdiction. But it will make all the difference in the result whether the parties have entered into an arbitration agreement as defined in S. 2 (a) of the Arbitration Act or have merely taken steps in the conduct of proceedings assumed or believed to be valid.In the former case the award will be valid; in the latter, a nullity.22. Now what are the facts in the present case? We have gone through the statements filed by the respondents before the arbitrators, and we do not find anything therein out of which a new agreement to refer the dispute to arbitration could be spelt. The respondents merely contested the claim on the merits, and then added:". The sellers submit that this reference is improper, unwarranted, frivolous and vexatious and should be dismissed with costs". It is impossible to read this statement as meaning an agreement to refer to arbitration.23. The decisions in National Fire and General Insurance Co. Ltd.s case, AIR1956 Cal 11 and Pratabmull Rameswars case, 64 Cal WN 616: (AIR 1960 Cal 702 ), relied on for the appellants are not really in point. In both these cases there was a valid submission on which the arbitrators proceeded to act. Before them the parties filed statements and therein they put forward a claim which was not actually covered by the reference, and invited them to give their decision thereon. The party against whom the award had gone contended that the arbitrators had acted without jurisdiction in deciding that claim. In overruling this contention the Court held that it was open to the parties to enlarge the scope of a reference by inclusion of a fresh dispute, that they must be held to have done that when they filed their statements, putting forward claims not covered by the original agreement, that these statements satisfied the requirements of S.2(a) of the Arbitration Act, and that it was competent to the arbitrators to decide the dispute. The point to be noticed is that in both these cases there was no want of initial jurisdiction, but a feeding of existing jurisdiction by an enlargement of the scope of the reference. That this does not involve any question of jurisdiction in the arbitrators will be clear from the scheme of the Act. If an award deals with a matter not covered by the agreement it could either be modified under S. 15 (a) or remitted under S. 16 (1) (a). And where such matter is dealt with on the invitation of the parties contained in the statements, there can be no difficulty in holding that the arbitrators acted within jurisdiction. In the present case the arbitrators had no jurisdiction when they entered on their duties, nor is it established that there was any subsequent agreement which could be held to be a submission of the question as to the validity of the contracts. We are accordingly of the opinion that the respondents are not precluded by what they did before the arbitrators from agitating the question of the validity of the contracts in the present proceedings.24. (4) The last contention of the appellants is that the contracts dated September 7, 1955 and October 17, 1955, are non-transferable specific delivery contracts, as defined in S. 2(f) of the Act and under S. 18 they are exempt from the operation of S. 17, and that they are therefore not hit by the notification dated October 29, 1953. The facts are similar to those considered by this Court in Khardah Co. Ltd. case C. A. Nos. 98 and 99 of 1960 D/- 4-5-1962 : (AIR 1962 SC 1810 ), with which these appeals were heard, and for the reasons given by us in our judgment in those appeals delivered to-day, we accept the contention of the appellants, and hold that the contracts in question are not hit by the notification dated October 29, 1953.
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in such cases for the Court and not for the arbitrators to decide. Following that decision we must overrule this contention.The point for decision is as to the true effect of what happened before the arbitrators on their jurisdiction to hear the dispute. The principles applicable in the determination of this question are well settled. A dispute as to the validity of a contract could be the subject-matter of an agreement of arbitration in the same manner as a dispute relating to a claim made under the contract. But such an agreement would be effective and operative only when it is separate from and independent of the contract which is impugned as illegal. Where, however, it is a term of the very contract whose validity is in question, it has, as held by us in Khardah Co. Ltd. case, C. A Nos. 98 and 99 of 1960 D/- 4-5-1962: (AIR 1962 SC 1810 ), no existence apart from the impugned contract and must perish withdecision directly bearing on this distinction is the one in East India Trading Co. New York v. Badat and Co. ILR (1959) Bom. 1004 : (AIR 1959 Bom. 414 ). There the facts were that there was a general agreement between the parties as to the terms on which they should do business and it was provided therein that all disputes arising out of the contract should be settled by arbitration. Subsequent thereto the parties entered into several contracts and then a dispute arose with reference to one of them. One of the parties denied the contracts and the question was whether an award passed by the arbitrators with reference to that dispute was without jurisdiction. In holding that the arbitrators had jurisdiction to decide the matter by virtue of the agreement antecedent to the disputed one, the Court observed: "Now, the principle of the matter is this that when a party denies the arbitration agreement, the very basis on which the arbitrator can act is challenged and therefore the Court have taken the view that in such a case the arbitrator has no jurisdiction to decide whether he himself has jurisdiction to adjudicate upon thethe arbitration agreement is part and parcel of the contract itself, by denying the factum of the contract the party is denying the submission clause and denying the jurisdiction of the arbitrators. But in this case the position is different. We have an independent agreement by which the parties agreed to refer the disputes to arbitration. Pursuant to this agreement, contracts were entered into and when the plaintiffs made a claim against the defendants, the defendants denied their liability. Therefore, what was denied was not the jurisdiction of the arbitrators, not the submission clause, but business done pursuant to the submission clause and to which the submission clause applied." That in our judgment is a correct statement of the true legalhave gone through the statements filed by the respondents before the arbitrators, and we do not find anything therein out of which a new agreement to refer the dispute to arbitration could be spelt. The respondents merely contested the claim on the merits, and then added:". The sellers submit that this reference is improper, unwarranted, frivolous and vexatious and should be dismissed with costs". It is impossible to read this statement as meaning an agreement to refer to arbitration.23. The decisions in National Fire and General Insurance Co. Ltd.s case, AIR1956 Cal 11 and Pratabmull Rameswars case, 64 Cal WN 616: (AIR 1960 Cal 702 ), relied on for the appellants are not really in point. In both these cases there was a valid submission on which the arbitrators proceeded to act. Before them the parties filed statements and therein they put forward a claim which was not actually covered by the reference, and invited them to give their decision thereon. The party against whom the award had gone contended that the arbitrators had acted without jurisdiction in deciding that claim. In overruling this contention the Court held that it was open to the parties to enlarge the scope of a reference by inclusion of a fresh dispute, that they must be held to have done that when they filed their statements, putting forward claims not covered by the original agreement, that these statements satisfied the requirements of S.2(a) of the Arbitration Act, and that it was competent to the arbitrators to decide the dispute. The point to be noticed is that in both these cases there was no want of initial jurisdiction, but a feeding of existing jurisdiction by an enlargement of the scope of the reference. That this does not involve any question of jurisdiction in the arbitrators will be clear from the scheme of the Act. If an award deals with a matter not covered by the agreement it could either be modified under S. 15 (a) or remitted under S. 16 (1) (a). And where such matter is dealt with on the invitation of the parties contained in the statements, there can be no difficulty in holding that the arbitrators acted within jurisdiction. In the present case the arbitrators had no jurisdiction when they entered on their duties, nor is it established that there was any subsequent agreement which could be held to be a submission of the question as to the validity of the contracts. We are accordingly of the opinion that the respondents are not precluded by what they did before the arbitrators from agitating the question of the validity of the contracts in the presentfacts are similar to those considered by this Court in Khardah Co. Ltd. case C. A. Nos. 98 and 99 of 1960 D/- 4-5-1962 : (AIR 1962 SC 1810 ), with which these appeals were heard, and for the reasons given by us in our judgment in those appeals delivered to-day, we accept the contention of the appellants, and hold that the contracts in question are not hit by the notification dated October 29, 1953.
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Badri Nath & Anr Vs. Mst. Punna (Dead) By Lrs & Ors | in the technical sense, it would not be correct to describe the shebaitship as a mere office. The shebait has not only duties to discharge in connection with the endowment, but he has a beneficial interest in the debutter property. As the Judicial Committee observed in the above case, in almost all such endowments the shebait has a share in the usufruct of the debutter, property which depends upon the terms of the grant or upon custom or usage. Even where no. emoluments are attached to the office of the shebait, he enjoys some sort of right or interest in the endowed property which partially at least has the character of a proprietary right. Thus, in the conception of shebaiti both the elements of office and property, of duties and personal interest, are mixed up and blended together; and one of the elements cannot be detached from the other. It is the presence of this personal or beneficial interest in the endowed property which invests shebaitship with the character of proprietary rights and attaches to it the legal incidents of property. This was elaborately discussed by a Full Bench of the Calcutta High Court in Manohar Mukherji v. Bhupendra Nath Mukherji, ILR 60 Cal 452 : (AIR 1932 Cal 791 ) and this decision of the Full Bench was approved of by the Judicial Committee in Ganesh Chunder Dhur v. Lal Behary. 63 Ind App 448 : (AIR 1936 PC 318 ) and again in Bhabatarini v. Ashalata, 70 Ind App. 57 : (AIR 1943 PC 89 ). The effect of the first two decisions, as the Privy Council pointed out in the last case, was to emphasize the proprietary element in the shebaiti right, and to show that though in some respects anomalous, it was an anomaly to be accepted as having been admitted into Hindu Law from an early date. "According to Hindu Law", observed Lord Hobhouse in Gossamee Sree Greedharreejee v. Rumanlollji Gossammee, (1890) 16 Ind. App. 137 (PC) "when the worship of a Thakoor has been founded, the shebaitship is held to be vested in the heirs of the founder, in default of evidence that he has disposed of it otherwise, or there has been some usage, course of dealing, or some circumstances to show a different dealing, or some circumstances to show a different mode of devolution." Unless, therefore, the founder has disposed of the shebaitship in any particular manner - and this right of disposition is inherent in the founder or except when usage or custom of a different nature is proved to exist, shebaitship like any other species of heritable property follows the line of inheritance from the founder."Angurbalas case was followed by this Court in a recent decision reported as Ram Rattan v. Bajrang Lal, (1978) 3 SCR 963 : (AIR 1978 SC 1393 ) wherein Desai, J., who delivered the judgment of the Court observed (at p. 1397 of AIR) :"In the conception of shebait both the elements of office and property, duties and personal interest are mixed up and blended together and one of the elements cannot be detached from the other. Old texts, one of the principal sources of Hindu law and the commentaries thereon, and over a century the Courts with very few exceptions have recognised hereditary office of shebait as immovable property, and it has all along been treated as immovable property almost uniformly. While examining the nature and character of an office as envisaged by Hindu Law it would be correct to accept and designate it in the same manner as has been done by the Hindu Law text writers and accepted by court over a long period. It is, therefore, safe to conclude that the hereditary office of shebait which would be enjoyed by the person by turn would be immovable property."These observations as also those made in Angurbalas case and extracted above demolish the contention of Mr. Sinha that shebaitship is nothing ore or less than an office and is not heritable property.8. The right to share the offerings being a right coupled with duties other than those involving personal qualifications and, therefore, being heritable property, it will descend in accordance with the dictates of the Hindu Succession Act and in supersession of all customs to the contrary in view of the provisions of S. 4 of that Act, sub-sec. (1) of which states :"(1) Save as otherwise expressly provided in this Act -(a) any text, rule or interpretation of Hindu Law or any custom or usage as part of that law in force immediately before the commencement of this Act shall cease to have effect with respect to any matter for which provision is made in this Act.(b) any other law in force immediately before the commencement of this Act shall cease to apply to Hindus in so far as it is inconsistent with any of the provisions contained in this Act."The requirements of the custom relied upon by the appellants to the effect that right could not be exercised by a person who is not a member of any of the four sub-castes mentioned above becomes wholly ineffective in view of these provisions, being contrary to the order of succession laid down in Chap. II of the Hindu Succession Act under which the right devolves on the plaintiff-respondent.9. The only contention raised by Mr. Sinha is that the plaintiff had not stated in any part of the pleadings that she was prepared to carry out the services to the performance of which the right to share the offerings is subject and that therefore she was not entitled to decree. This contention must be repelled for the simple reason that it was not raised before the High Court. Besides, there being no. repudiation on her part of the obligations to render the services abovementioned, her claim must be regarded for the enforcement of that right coupled with those services and the decree construed accordingly even though it may be silent on the point. | 0[ds]A careful perusal of the extract shows that Mr. Sinhas contention is well founded because there is not so much as a hint to the main temple in theis thus no. doubt that the right to receive a share in the offerings is subject to the performance of onerous duties. But then it is apparent that none of these duties is in nature priestly or requiring a personal qualification. On the other hand all of them are of a non-religious or secular character and may be performed not necessarily by the baridar personally but by his agents or servants so that their performance boils down to mere incurring of expense. If the baridar chooses to perform those duties personally he is at liberty to do so. But then the obligation extends merely to the making of necessary arrangements which may be secured on payment of money to others, the actual physical or mental effort involved being undertaken by thoseright is, therefore, a transferable right as envisaged in the passage above extracted from Bal Mukund v. Tula Ram (AIR 1928 All 721) (FB) (supra) which has not been challenged before us as erroneous and which we regard as laying down the law correctly. The contentions raised by Mr. Sinha to the contrary are thusis nothing to indicate that baridars in the present case are the managers of the shrine in the sense that a shebait is in relation to the temple in his charge. On the other hand it appears that the overall management of the shrine vests in the Board of Trustees known as Dharmarth Committee and it would not be corrected therefore to look at the right of the baridars in the light of the rights and duties of a shebait. However, it may be pointed out that shebaitship cannot be described as a mere office because apart from certain responsibilities, it carries with it a definite right tocontention must be repelled for the simple reason that it was not raised before the High Court. Besides, there being no. repudiation on her part of the obligations to render the services abovementioned, her claim must be regarded for the enforcement of that right coupled with those services and the decree construed accordingly even though it may be silent on the point. | 0 | 4,557 | 410 | ### 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:
in the technical sense, it would not be correct to describe the shebaitship as a mere office. The shebait has not only duties to discharge in connection with the endowment, but he has a beneficial interest in the debutter property. As the Judicial Committee observed in the above case, in almost all such endowments the shebait has a share in the usufruct of the debutter, property which depends upon the terms of the grant or upon custom or usage. Even where no. emoluments are attached to the office of the shebait, he enjoys some sort of right or interest in the endowed property which partially at least has the character of a proprietary right. Thus, in the conception of shebaiti both the elements of office and property, of duties and personal interest, are mixed up and blended together; and one of the elements cannot be detached from the other. It is the presence of this personal or beneficial interest in the endowed property which invests shebaitship with the character of proprietary rights and attaches to it the legal incidents of property. This was elaborately discussed by a Full Bench of the Calcutta High Court in Manohar Mukherji v. Bhupendra Nath Mukherji, ILR 60 Cal 452 : (AIR 1932 Cal 791 ) and this decision of the Full Bench was approved of by the Judicial Committee in Ganesh Chunder Dhur v. Lal Behary. 63 Ind App 448 : (AIR 1936 PC 318 ) and again in Bhabatarini v. Ashalata, 70 Ind App. 57 : (AIR 1943 PC 89 ). The effect of the first two decisions, as the Privy Council pointed out in the last case, was to emphasize the proprietary element in the shebaiti right, and to show that though in some respects anomalous, it was an anomaly to be accepted as having been admitted into Hindu Law from an early date. "According to Hindu Law", observed Lord Hobhouse in Gossamee Sree Greedharreejee v. Rumanlollji Gossammee, (1890) 16 Ind. App. 137 (PC) "when the worship of a Thakoor has been founded, the shebaitship is held to be vested in the heirs of the founder, in default of evidence that he has disposed of it otherwise, or there has been some usage, course of dealing, or some circumstances to show a different dealing, or some circumstances to show a different mode of devolution." Unless, therefore, the founder has disposed of the shebaitship in any particular manner - and this right of disposition is inherent in the founder or except when usage or custom of a different nature is proved to exist, shebaitship like any other species of heritable property follows the line of inheritance from the founder."Angurbalas case was followed by this Court in a recent decision reported as Ram Rattan v. Bajrang Lal, (1978) 3 SCR 963 : (AIR 1978 SC 1393 ) wherein Desai, J., who delivered the judgment of the Court observed (at p. 1397 of AIR) :"In the conception of shebait both the elements of office and property, duties and personal interest are mixed up and blended together and one of the elements cannot be detached from the other. Old texts, one of the principal sources of Hindu law and the commentaries thereon, and over a century the Courts with very few exceptions have recognised hereditary office of shebait as immovable property, and it has all along been treated as immovable property almost uniformly. While examining the nature and character of an office as envisaged by Hindu Law it would be correct to accept and designate it in the same manner as has been done by the Hindu Law text writers and accepted by court over a long period. It is, therefore, safe to conclude that the hereditary office of shebait which would be enjoyed by the person by turn would be immovable property."These observations as also those made in Angurbalas case and extracted above demolish the contention of Mr. Sinha that shebaitship is nothing ore or less than an office and is not heritable property.8. The right to share the offerings being a right coupled with duties other than those involving personal qualifications and, therefore, being heritable property, it will descend in accordance with the dictates of the Hindu Succession Act and in supersession of all customs to the contrary in view of the provisions of S. 4 of that Act, sub-sec. (1) of which states :"(1) Save as otherwise expressly provided in this Act -(a) any text, rule or interpretation of Hindu Law or any custom or usage as part of that law in force immediately before the commencement of this Act shall cease to have effect with respect to any matter for which provision is made in this Act.(b) any other law in force immediately before the commencement of this Act shall cease to apply to Hindus in so far as it is inconsistent with any of the provisions contained in this Act."The requirements of the custom relied upon by the appellants to the effect that right could not be exercised by a person who is not a member of any of the four sub-castes mentioned above becomes wholly ineffective in view of these provisions, being contrary to the order of succession laid down in Chap. II of the Hindu Succession Act under which the right devolves on the plaintiff-respondent.9. The only contention raised by Mr. Sinha is that the plaintiff had not stated in any part of the pleadings that she was prepared to carry out the services to the performance of which the right to share the offerings is subject and that therefore she was not entitled to decree. This contention must be repelled for the simple reason that it was not raised before the High Court. Besides, there being no. repudiation on her part of the obligations to render the services abovementioned, her claim must be regarded for the enforcement of that right coupled with those services and the decree construed accordingly even though it may be silent on the point.
### Response:
0
### Explanation:
A careful perusal of the extract shows that Mr. Sinhas contention is well founded because there is not so much as a hint to the main temple in theis thus no. doubt that the right to receive a share in the offerings is subject to the performance of onerous duties. But then it is apparent that none of these duties is in nature priestly or requiring a personal qualification. On the other hand all of them are of a non-religious or secular character and may be performed not necessarily by the baridar personally but by his agents or servants so that their performance boils down to mere incurring of expense. If the baridar chooses to perform those duties personally he is at liberty to do so. But then the obligation extends merely to the making of necessary arrangements which may be secured on payment of money to others, the actual physical or mental effort involved being undertaken by thoseright is, therefore, a transferable right as envisaged in the passage above extracted from Bal Mukund v. Tula Ram (AIR 1928 All 721) (FB) (supra) which has not been challenged before us as erroneous and which we regard as laying down the law correctly. The contentions raised by Mr. Sinha to the contrary are thusis nothing to indicate that baridars in the present case are the managers of the shrine in the sense that a shebait is in relation to the temple in his charge. On the other hand it appears that the overall management of the shrine vests in the Board of Trustees known as Dharmarth Committee and it would not be corrected therefore to look at the right of the baridars in the light of the rights and duties of a shebait. However, it may be pointed out that shebaitship cannot be described as a mere office because apart from certain responsibilities, it carries with it a definite right tocontention must be repelled for the simple reason that it was not raised before the High Court. Besides, there being no. repudiation on her part of the obligations to render the services abovementioned, her claim must be regarded for the enforcement of that right coupled with those services and the decree construed accordingly even though it may be silent on the point.
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Sube Singh & Another Vs. Shyam Singh (Dead) & Others | A.M. Khanwilkar, J.1. The sole question to be answered in this appeal is: whether the High Court was right in applying multiplier 14 for determining compensation amount in a motor accident claim case in reference to the age of parents of the deceased whilst relying on the decision of this Court in Ashvinbhai Jayantilal Modi Vs. Ramkaran Ramchandra Sharma and Anr. (2015 (2) SCC 180 )?2. Briefly stated, in a motor accident which occurred on 22.09.2009, Ajit Singh, who was at the relevant time 23 years of age died. His parents, who were in the age group of 40 to 45 years, filed a petition claiming compensation. The Motor Accident Claims Tribunal held that the established income of the deceased was around Rs.4,200/per month and after deduction of 50% as the deceased was unmarried, calculated the same as Rs.2,100/per month. Thereafter, it applied multiplier 15, taking the age of the “parents of the deceased” into consideration. This was challenged by the appellants by way of an appeal before the High Court of Punjab and Haryana at Chandigarh, being FAO No.330 of 2012 (O&M) which was partly allowed in relation to other heads of compensation. As regards multiplier applied for determination of loss of future income, the High Court held that multiplier 14 will be applicable. For that, the High Court relied on the decision of this Court of (Two Judge Bench) in Ashvinbhai Jayantilal Modi (supra). Resultantly, the appellants have filed the present appeal, questioning the correctness of the conclusion so reached by the High Court.3. According to the appellants, the correct multiplier to be applied in the facts of the present case is 18, as the deceased was only 23 years of age on the date of accident. To buttress this submission, reliance is placed on the decision in Sarla Verma (Smt.) and Others Vs. Delhi Transport Corporation And Anr. (2009 (6) SCC 121 ). Reliance is also placed on the recent judgment of this Court (Three Judge Bench) in the case of Munna Lal Jain and Anr. Vs. Vipin Kumar Sharma and Ors. (2015 (6) SCC 347 ), which has restated the legal position that multiplier should depend on the age of the deceased and not on the age of the dependents.4. On the basis of the finding recorded by the Tribunal and affirmed by the High Court, it is evident that the deceased was 23 years of age on the date of accident i.e. 22.09.2009. He was unmarried and his parents who filed the petition for compensation were in the age group of 40 to 45 years. The High Court, relying on the decision in the case of Ashvinbhai Jayantilal Modi (supra), held that multiplier 14 will be applicable in the present case, keeping in mind the age of the parents of the deceased. The legal position, however, is no more res integra. In the case of Munna Lal Jain (supra) decided by a three Judge Bench of this Court, it is held that multiplier should depend on the age of the deceased and not on the age of the dependants. We may usefully refer to the exposition in paragraph Nos. 11 and 12 of the reported decision, which read thus:“11. The remaining question is only on multiplier. The High Court following Santosh Devi (supra), has taken 13 as the multiplier. Whether the multiplier should depend on the age of the dependents or that of the deceased, has been hanging fire for sometime; but that has been given a quietus by another three Judge Bench decision in Reshma Kumar (supra). It was held that the multiplier is to be used with reference to the age of the deceased. One reason appears to be that there is certainty with regard to the age of the deceased but as far as that of dependents is concerned, there will always be room for dispute as to whether the age of the eldest or youngest or even the average etc. is to be taken. To quote“36. In Sarla Verma, this Court has endeavoured to simplify the otherwise complex exercise of assessment of loss of dependency and determination of compensation in a claim made under Section 166. It has been rightly stated in Sarla Verma that the claimants in case of death claim for the purposes of compensation must establish (a) age of the deceased. (b) income of the deceased; and (c) the number of dependents. To arrive at the loss of dependency, the Tribunal must consider (i) additions/deductions to be made for arriving at the income; (ii) the deductions to be made towards the personal living expenses of the deceased; and (iii) the multiplier to be applied with reference to the age of the deceased. We do not think it is necessary for us to revisit the law on the point as we are in full agreement with the view in Sarla Verma.”12. In Sarla Verma (supra), at paragraph19 a twoJudge Bench dealt with this aspect in Step 2. To quote:“19.xxxx xxxxxx xxxxStep 2 (ascertaining the multiplier)Having regard to the age of the deceased and period of active career, the appropriate multiplier should be selected. This does not mean ascertaining the number of years he would have lived or worked out for the accident having regard to several imponderables in life and economic factors, a table of multipliers with reference to be age has been identified by this Court. The multiplier should be chosen from the said table with reference to the age of the deceased.”Considering the aforementioned principle expounded in Sarla Verma (supra), which has been affirmed by the Constitution Bench of this Court in National Insurance Company Ltd. Vs. Pranay Sethi and Ors. (AIR 2017 SC 5157 ), the appellants are justified in insisting for applying multiplier 18. | 1[ds]Considering the aforementioned principle expounded in Sarla Verma (supra), which has been affirmed by the Constitution Bench of this Court in National Insurance Company Ltd. Vs. Pranay Sethi and Ors. (AIR 2017 SC 5157 ), the appellants are justified in insisting for applying multiplier 18. | 1 | 1,110 | 57 | ### 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:
A.M. Khanwilkar, J.1. The sole question to be answered in this appeal is: whether the High Court was right in applying multiplier 14 for determining compensation amount in a motor accident claim case in reference to the age of parents of the deceased whilst relying on the decision of this Court in Ashvinbhai Jayantilal Modi Vs. Ramkaran Ramchandra Sharma and Anr. (2015 (2) SCC 180 )?2. Briefly stated, in a motor accident which occurred on 22.09.2009, Ajit Singh, who was at the relevant time 23 years of age died. His parents, who were in the age group of 40 to 45 years, filed a petition claiming compensation. The Motor Accident Claims Tribunal held that the established income of the deceased was around Rs.4,200/per month and after deduction of 50% as the deceased was unmarried, calculated the same as Rs.2,100/per month. Thereafter, it applied multiplier 15, taking the age of the “parents of the deceased” into consideration. This was challenged by the appellants by way of an appeal before the High Court of Punjab and Haryana at Chandigarh, being FAO No.330 of 2012 (O&M) which was partly allowed in relation to other heads of compensation. As regards multiplier applied for determination of loss of future income, the High Court held that multiplier 14 will be applicable. For that, the High Court relied on the decision of this Court of (Two Judge Bench) in Ashvinbhai Jayantilal Modi (supra). Resultantly, the appellants have filed the present appeal, questioning the correctness of the conclusion so reached by the High Court.3. According to the appellants, the correct multiplier to be applied in the facts of the present case is 18, as the deceased was only 23 years of age on the date of accident. To buttress this submission, reliance is placed on the decision in Sarla Verma (Smt.) and Others Vs. Delhi Transport Corporation And Anr. (2009 (6) SCC 121 ). Reliance is also placed on the recent judgment of this Court (Three Judge Bench) in the case of Munna Lal Jain and Anr. Vs. Vipin Kumar Sharma and Ors. (2015 (6) SCC 347 ), which has restated the legal position that multiplier should depend on the age of the deceased and not on the age of the dependents.4. On the basis of the finding recorded by the Tribunal and affirmed by the High Court, it is evident that the deceased was 23 years of age on the date of accident i.e. 22.09.2009. He was unmarried and his parents who filed the petition for compensation were in the age group of 40 to 45 years. The High Court, relying on the decision in the case of Ashvinbhai Jayantilal Modi (supra), held that multiplier 14 will be applicable in the present case, keeping in mind the age of the parents of the deceased. The legal position, however, is no more res integra. In the case of Munna Lal Jain (supra) decided by a three Judge Bench of this Court, it is held that multiplier should depend on the age of the deceased and not on the age of the dependants. We may usefully refer to the exposition in paragraph Nos. 11 and 12 of the reported decision, which read thus:“11. The remaining question is only on multiplier. The High Court following Santosh Devi (supra), has taken 13 as the multiplier. Whether the multiplier should depend on the age of the dependents or that of the deceased, has been hanging fire for sometime; but that has been given a quietus by another three Judge Bench decision in Reshma Kumar (supra). It was held that the multiplier is to be used with reference to the age of the deceased. One reason appears to be that there is certainty with regard to the age of the deceased but as far as that of dependents is concerned, there will always be room for dispute as to whether the age of the eldest or youngest or even the average etc. is to be taken. To quote“36. In Sarla Verma, this Court has endeavoured to simplify the otherwise complex exercise of assessment of loss of dependency and determination of compensation in a claim made under Section 166. It has been rightly stated in Sarla Verma that the claimants in case of death claim for the purposes of compensation must establish (a) age of the deceased. (b) income of the deceased; and (c) the number of dependents. To arrive at the loss of dependency, the Tribunal must consider (i) additions/deductions to be made for arriving at the income; (ii) the deductions to be made towards the personal living expenses of the deceased; and (iii) the multiplier to be applied with reference to the age of the deceased. We do not think it is necessary for us to revisit the law on the point as we are in full agreement with the view in Sarla Verma.”12. In Sarla Verma (supra), at paragraph19 a twoJudge Bench dealt with this aspect in Step 2. To quote:“19.xxxx xxxxxx xxxxStep 2 (ascertaining the multiplier)Having regard to the age of the deceased and period of active career, the appropriate multiplier should be selected. This does not mean ascertaining the number of years he would have lived or worked out for the accident having regard to several imponderables in life and economic factors, a table of multipliers with reference to be age has been identified by this Court. The multiplier should be chosen from the said table with reference to the age of the deceased.”Considering the aforementioned principle expounded in Sarla Verma (supra), which has been affirmed by the Constitution Bench of this Court in National Insurance Company Ltd. Vs. Pranay Sethi and Ors. (AIR 2017 SC 5157 ), the appellants are justified in insisting for applying multiplier 18.
### Response:
1
### Explanation:
Considering the aforementioned principle expounded in Sarla Verma (supra), which has been affirmed by the Constitution Bench of this Court in National Insurance Company Ltd. Vs. Pranay Sethi and Ors. (AIR 2017 SC 5157 ), the appellants are justified in insisting for applying multiplier 18.
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Commissioner of Income Tax, Delhi and Rajasthan Vs. Shri Govind Commercial Company Private Limited | SIKRI J.1. This appeal by special leave is directed against the judgment of the High Court of Rajasthan, rejecting the application under section 66(2) of the Income-tax Act, filed by the appellant. For the assessment for 1958-59, the Income-tax Officer disallowed loss of Rs. 45, 676 incurred by the respondent, M/s. Shri Govind Commercial Co. (P.) Ltd., Jaipur, hereinafter referred to as the assessee, on the ground that this loss was incurred in speculative transaction on a large scale in hessian and gunny bags. It is noted in the order that " Shri M. L. Sharma admitted that the transactions were of a speculative nature since the deliveries were not taken ". Apparently, this admission was not understood properly by the Income-tax Officer because the assessee filed an appeal before the Appellate Assistant Commissioner and contended that the admission was only to the effect that delivery of goods was not taken. On the merits, it was contended before the Appellate Assistant Commissioner that the assessee did not take physical delivery of the goods but received the delivery orders according to the terms of the contract for purchases and, similarly, it made over the delivery orders as per the terms of the sale contracts. It was further argued that this receiving and making over of delivery orders was tantamount to " actual delivery or transfer of the commodity or scrips " within the meaning of Explanation 2 to section 24(1). The assessee relied on the decision of this court in Duni Chand Rataria v. Bhuwalka Brothers Ltd. The Appellate Assistant Commissioner, however, rejected the contentions of the assessee and distinguishing the decision of this court in Duni Chand Ratarias case, upheld the order of the Income-tax Officer. The Appellate Tribunal, on appeal, accepted the contentions and held that the decision of the Supreme Court governed the case, and that, on the facts, it was satisfied that this was not a case where the transactions were settled by payment of differences. It found that payments had been made for full value of the goods purchased, and, therefore, the transactions could not be regarded as speculative transactions. The Appellate Tribunal further held that the term " scrips " occurring in Explanation 2 to section 24(1) could refer to scrips pertaining to any commodity and there was no warrant for saying that it should refer to stocks and shares alone. This was with reference to the argument of the assessee that Explanation 2 was not confined to actual delivery or transfer of commodity but spoke of delivery or transfer of scrips also The Commissioner of Income-tax thereupon filed an application under section 66(1), raising the following two questions"(1) Whether, on the facts and in the circumstances of the case, the Tribunal was right in holding that there was actual delivery of the commodity within the meaning of Explanation 2 to section 24(1) of the Indian Income-tax Act, 1922 ? and(2) Whether, on the facts and in the circumstances of the case, the term scrips in Explanation 2 to section 24(1) of the Indian Income-tax Act, 1922, can refer to scrips pertaining to any commodity or to stocks and shares alone ?"2. The Appellate Tribunal rejected the application on the ground that the questions raised by the Commissioner of Income-tax were already well-settled by the decision of this court in Duni Chand Ratarias case. The Commissioner of Income-tax then filed an application under section 66(2) of the Income-tax Act before the High Court. The High Court, in a short order, dismissed the application. The High Court observed as follows"We have heard learned counsel and are inclined to the view taken by the Tribunal that the first question which is sought to be raised is covered by the principle of the decision of their Lordships of the Supreme Court in Duni Chand v. Bhuwalka Brothers Ltd. In that view of the matter, the second question does not arise at all."3. The learned Solicitor-General, who appears on behalf of the revenue, tends that the High Court should not have rejected this application under section 66(2) because the questions referred to above were arguable questions of law. He says that the first question is not concluded by the decision of this court in Duni Chand Ratarias case. He further contends that the Calcutta High Court has in an unreported judgment in D. M. Wadhwana v. Commissioner of Income-tax distinguished the Supreme Court decision in Duni Chand Ratarias case and has taken the view that the words " actual delivery " in Explanation 2 to section 24(1) do not only mean physical delivery. We need not express an opinion at this stage on the soundness of the view of the Appellate Tribunal in the present case, or the view taken by the Calcutta High Court in the above unreported case. We are of the opinion that fairly arguable questions of law arise and the High Court should have directed the Appellate Tribunal to state the case and refer it to the High Court. | 1[ds]We need not express an opinion at this stage on the soundness of the view of the Appellate Tribunal in the present case, or the view taken by the Calcutta High Court in the above unreported case. We are of the opinion that fairly arguable questions of law arise and the High Court should have directed the Appellate Tribunal to state the case and refer it to the High Court | 1 | 938 | 76 | ### 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:
SIKRI J.1. This appeal by special leave is directed against the judgment of the High Court of Rajasthan, rejecting the application under section 66(2) of the Income-tax Act, filed by the appellant. For the assessment for 1958-59, the Income-tax Officer disallowed loss of Rs. 45, 676 incurred by the respondent, M/s. Shri Govind Commercial Co. (P.) Ltd., Jaipur, hereinafter referred to as the assessee, on the ground that this loss was incurred in speculative transaction on a large scale in hessian and gunny bags. It is noted in the order that " Shri M. L. Sharma admitted that the transactions were of a speculative nature since the deliveries were not taken ". Apparently, this admission was not understood properly by the Income-tax Officer because the assessee filed an appeal before the Appellate Assistant Commissioner and contended that the admission was only to the effect that delivery of goods was not taken. On the merits, it was contended before the Appellate Assistant Commissioner that the assessee did not take physical delivery of the goods but received the delivery orders according to the terms of the contract for purchases and, similarly, it made over the delivery orders as per the terms of the sale contracts. It was further argued that this receiving and making over of delivery orders was tantamount to " actual delivery or transfer of the commodity or scrips " within the meaning of Explanation 2 to section 24(1). The assessee relied on the decision of this court in Duni Chand Rataria v. Bhuwalka Brothers Ltd. The Appellate Assistant Commissioner, however, rejected the contentions of the assessee and distinguishing the decision of this court in Duni Chand Ratarias case, upheld the order of the Income-tax Officer. The Appellate Tribunal, on appeal, accepted the contentions and held that the decision of the Supreme Court governed the case, and that, on the facts, it was satisfied that this was not a case where the transactions were settled by payment of differences. It found that payments had been made for full value of the goods purchased, and, therefore, the transactions could not be regarded as speculative transactions. The Appellate Tribunal further held that the term " scrips " occurring in Explanation 2 to section 24(1) could refer to scrips pertaining to any commodity and there was no warrant for saying that it should refer to stocks and shares alone. This was with reference to the argument of the assessee that Explanation 2 was not confined to actual delivery or transfer of commodity but spoke of delivery or transfer of scrips also The Commissioner of Income-tax thereupon filed an application under section 66(1), raising the following two questions"(1) Whether, on the facts and in the circumstances of the case, the Tribunal was right in holding that there was actual delivery of the commodity within the meaning of Explanation 2 to section 24(1) of the Indian Income-tax Act, 1922 ? and(2) Whether, on the facts and in the circumstances of the case, the term scrips in Explanation 2 to section 24(1) of the Indian Income-tax Act, 1922, can refer to scrips pertaining to any commodity or to stocks and shares alone ?"2. The Appellate Tribunal rejected the application on the ground that the questions raised by the Commissioner of Income-tax were already well-settled by the decision of this court in Duni Chand Ratarias case. The Commissioner of Income-tax then filed an application under section 66(2) of the Income-tax Act before the High Court. The High Court, in a short order, dismissed the application. The High Court observed as follows"We have heard learned counsel and are inclined to the view taken by the Tribunal that the first question which is sought to be raised is covered by the principle of the decision of their Lordships of the Supreme Court in Duni Chand v. Bhuwalka Brothers Ltd. In that view of the matter, the second question does not arise at all."3. The learned Solicitor-General, who appears on behalf of the revenue, tends that the High Court should not have rejected this application under section 66(2) because the questions referred to above were arguable questions of law. He says that the first question is not concluded by the decision of this court in Duni Chand Ratarias case. He further contends that the Calcutta High Court has in an unreported judgment in D. M. Wadhwana v. Commissioner of Income-tax distinguished the Supreme Court decision in Duni Chand Ratarias case and has taken the view that the words " actual delivery " in Explanation 2 to section 24(1) do not only mean physical delivery. We need not express an opinion at this stage on the soundness of the view of the Appellate Tribunal in the present case, or the view taken by the Calcutta High Court in the above unreported case. We are of the opinion that fairly arguable questions of law arise and the High Court should have directed the Appellate Tribunal to state the case and refer it to the High Court.
### Response:
1
### Explanation:
We need not express an opinion at this stage on the soundness of the view of the Appellate Tribunal in the present case, or the view taken by the Calcutta High Court in the above unreported case. We are of the opinion that fairly arguable questions of law arise and the High Court should have directed the Appellate Tribunal to state the case and refer it to the High Court
|
Prem Kumar And Another Vs. State Of Bihar | with rifles and all of them started abusing Tarkeshwar Prasad Singh and stated that he should be cut into pieces. Prem Singh and Ramesh Singh stood near the front door of the bus and fired shots with rifles. PW 8 was successful in fleeing away by covering his face with a chadar. He saw that Tarkeshwar Prasad Singh to injured by the bullet inside the bus. Tarkeshwar Prasad Singh was behind him when firing had taken place. He did not see bullet being fired on any other passenger other than Tarkeshwar Prasad Singh. Another person, who was a forest guard, was injured on being hit by a bullet. The FIR available at pages 51-54 of Volume III of the paper-book and the deposition of the eyewitnesses, PW 1, PW 2, PW 5 and PW 8, of whom PW 5 is an independent witness, clearly bring out the fact that Accused 1 and 2 came in a jeep and a car with rifles, with a few other persons, that they got into the bus from the front and fired indiscriminately at Tarkeshwar Prasad Singh. PW 5, a forest officer as an independent witness, who himself sustained injuries, has also stated that he knew Tarkeshwar Prasad Singh. He also stated that Tarkeshwar Prasad Singh died inside the bus on being hit by the bullets. There is no contradiction with regard to the crucial aspects, namely, that these witnesses travelled along with Tarkeshwar Prasad Singh in the same bus, that the bus stopped at Ketat Village to drop a passenger, at that time Accused 1 and 2 came in a jeep and a car with rifles from behind, along with others, surrounded the bus and after proclaiming that Tarkeshwar Prasad Singh is inside the bus and he should be cut into pieces, they entered the bus and fired indiscriminately, at Tarkeshwar Prasad Singh, which resulted in the death of Tarkeshwar Prasad Singh instantaneously. 9. PW. 4 - Dr. R. K. Pandey, who conducted the post-mortem examination of the dead body, proved the post-mortem certificate issued by him and also stated that the injuries referred to in the certificate were caused by firearms. Ext. 3 - certificate - is in his own handwriting and signed by him. Six metallic pieces recovered from the dead body were properly sealed and sent to the police. All the injuries were caused by some firearms. The post-mortem report - Annexure P-8, (Volume III of the paper-book) - mentions about two metallic pieces embodies in the wounds in the upper left side of the abdomen and also refers to a recovery of total six metallic pieces. The post - mortem report along with the evidence of the medical witness PW 4 substantiates that the injuries sustained by Tarkeshwar Prasad Singh were as a result of hosts received from the firearms and that they were fatal. Such injuries were sustained by Tarkeshwar Prasad Singh only due to the shots received from the firearms, employed by the accused against Tarkeshwar Prasad Singh, while in the bus as spoken to by eyewitnesses PW 1, PW 2, PW 5 and PW 8. The direct evidence in the case, amply corroborated by the motive of the accused, positively points out the intention of the accused to murder Tarkeshwar Prasad Singh. 10. Sachchidanand Deo, Inspector of Police, PW 14, who recorded the FIR, stated that he had seized two bullets on the front gate footsteps of the bus and that he did not find any rifle or gun at the place of occurrence or nearby and that he recorded the FIR and other statements from the wintesses etc. It is also important to notice that PW 8 has given the number of the Fiat car and the Jeep and PW 12 Chandreshwar Upadhayay, who came along with Prem Singh in the jeep has categorically stated that the number of the jeep is BRO 2770 and Prem Singh regularly used to bring him in that jeep. . 11. Appellants counsel made a feeble attempt to contend that it is not clear in this case whether the injuries to Tarkeshwar Prasad Singh were caused by the rifle or by the gun. The plea was that the cartridges recovered were not sent to the ballistic expert nor was any ballistic expert examined. Our attention was invited to the decision of this Court in Mohinder Singh v. State and in particular to the observations of the Court at page 828 of the Report. We are of the view that the said decision is distinguishable. It will be found from page 825 of the Report that the accused in the said case produced a 12 bore gun Ext. P-16, for which he held the licence. He denied that he had fired with the said gun. His case was that Gurnam Singh, who reached the spot at about the time of incident, had fired at the deceased Dalip Singh. There were certain puzzling features of the injuries of Dalip Singh. It is in that connection the Court observed as follows. In a case where death is due to injuries or wounds caused by a lethal weapon, it has always been considered to be the duty of the possible for the injuries to have been caused with the weapon with which and the manner in which they are alleged to have been caused. * The above observations were made in a case where the weapon with which the victim sustained injuries was before the Court and there was doubt whether the injuries could have been caused by using that weapon Ext. P-16, in the reported case. In this case, the rifles used by Accused 1 and 2 were never recovered. So, the prosecution could not, in the circumstances, allege that a particular identifiable weapon was used in committing the crime. There was nothing to be examined by the ballistic expert. The observations in Mohinder Singh v. State should be understood in the above peculiar context. There is no merit in this plea. | 0[ds]7. We were taken through the evidence of PWs 1, 2 and 4 (medical witness), PW 5 - independent witness (Forest Guard) and PW 8 - first informant and PW 12. We have also gone through the FIR appearing at pages 51-54 (Paper-Book No. III - Annexure P-10) and also the statement given by the accused in their examination under Section 313 of Criminal Procedure Code. We shall now advert to the salient features disclosed by the said evidence appearing in the case8. PW 1, Bashishtha Narain Singh is the father-in-law of Tarkeshwar Prasad Singh. He deposed before the Court that he himself, PW 2, PW 8 and the few others were in the Santosh Bus when it stopped at Ketat Village, a jeep and a car came from behind and 10-15 persons armed with rifles and guns got down from both the vehicles and shouted that Tarkeshwar Prasad Singh is in the bus and he should be cut. He was trying to get down from the bus to run away when Prem Singh and Ramesh Singh, Accused 1 and 2 came from the front gate with rifles long with Mundrika Singh (A-6). There were, amongst passenger, one Forest Department Official (PW 5) and another police official (PW 6). He knew Mundrika Singh, Ramesh Singh and Prem Singh for a long time. No doubt he had developed weakness in the eyes two months prior to the date of examination, but he had clear vision and his eyes were alright at the time of the occurrence. He admitted that he had given statement before the police that Ramesh Singh and Prem Singh started firing at Tarkeshwar Prasad Singh after entering into the bus. He heard the noise of firing when he was fleeing from the bus and also heard the shouts of Tarkeshwar Prasad Singh to save him. PW. 2 Ran Vijay Pratap Deo, deposed that he boarded Santosh Bus in the evening to come back to Rehla along with PW 1, PW 8 and Tarkeshwar Prasad Singh and when the bus halted near Ketat Village to drop some passengers, a Fiat car came from Daltonganj direction and stopped before the bus. Accused Ramesh Singh and others with rifles in their hands, and Mundrika Singh got down. Mundrika Singhs hands were empty. A jeep also came from behind and Prem Singh and others got down from the jeep with the rifles. The jeep and the car surrounded the bus and thereafter, he heard the noise of firing from the bus gate. Prem Singh and Ramesh Singh were standing near the front gate of the bus with rifle. The moment he came out of the bus, he herd the noise of firing and simultaneously the shouts of Tarkeshwar Prasad Singh. He also speaks about the enmity between the accused and Tarkeshwar Prasad Singh. According to him, there was indiscriminate firing in the bus. PW 5, a forest officer and independent witness, stated before the Court that he boarded Santosh Bus at Daltonganj bus-stand on 13-1-1983 and when the bus stopped in front of Ketat Village, 5-6 persons surrounded the bus and started firing indiscriminately. He was injured due to firing. Tharkeshwar Prasad Singh, hit by the bullet, died inside the bus. Persons firing were outside the bus next to the bus door and were firing inside. The bullet hit the witness after breaking the glass of the bus window. He knew Tarkeshwar Prasad Singh before since he was a forest constructor. PW 8 - Dudhnath Singh, who gave the FIR available at pages 51-54 of Volume III of the paper-book, is the brother-in-law of the deceased Tarkeshwar Prasad Singh. In the FIR he has stated that along with Tarkeshwar Prasad Singh, PW 1, PW 2 and others, they boarded the bus at Daltonganj and when the bus reached Ketat Village at about 6.45 in the evening to drop a passenger, a car, belonging to Chandrika Singh, bearing No. WHB 5989, came overtaking the bus and stopped in front of it. The passengers, sitting in it, got down and were armed with guns and rifles. He recognised those persons. Among them Ramesh Singh. Accused 2, and others had rifles. Immediately after this the jeep, bearing No. BRO 2770, came and Prem Singh - Accused 1, and others got down with rifles in their hands. All the persons in the car and the jeep surrounded the standing bus and said that sala Tarkeshwar Prasad Singh is in it, he should be taken out and cut into pieces. The persons travelling inside the bus started begging for life and started fleeing. Prem Singh and Ramesh Singh were identifying the passengers and PW 8, by hiding his face, got down from the rear gate. Takeshwar Prasad Singh was in the back. As soon as the witness reached the rear gate, he saw Prem Singh and Ramesh Singh entering the bus from the front gate with their rifles and started indiscriminate firing on Tarkeshwar Prasad Singh. The witness ran outside to save his life, but while running he heard Tarkeshwar Singhs shouts from inside the bus. He hid himself in the nearby bushes. The reason for this murder is that Prem Singh, Ramesh Singh and others had enmity towards Tarkeshwar Prasad Singh and wanted to take revenue due to the pending murder case of Rajan and Bishwanath in Daltonganj. As PW 8, the witness, substantially corroborated what he stated in the FIR. He deposed that he was travelling along with Tarkeshwar Prasad Singh, PW 1 and others in the bus belonging to Santosh Transport Company. At about 6.45 p.m. at Ketat Village the bus stopped to drop a Passenger when a Fiat car bearing No. WHR 5989 stopped in front of the bus and Ramesh Singh and others came out of the same with rifles and thereafter a jeep bearing No. BRO 2770 came and Prem Singh and others got out of the jeep with rifles and all of them started abusing Tarkeshwar Prasad Singh and stated that he should be cut into pieces. Prem Singh and Ramesh Singh stood near the front door of the bus and fired shots with rifles. PW 8 was successful in fleeing away by covering his face with a chadar. He saw that Tarkeshwar Prasad Singh to injured by the bullet inside the bus. Tarkeshwar Prasad Singh was behind him when firing had taken place. He did not see bullet being fired on any other passenger other than Tarkeshwar Prasad Singh. Another person, who was a forest guard, was injured on being hit by a bullet. The FIR available at pages 51-54 of Volume III of the paper-book and the deposition of the eyewitnesses, PW 1, PW 2, PW 5 and PW 8, of whom PW 5 is an independent witness, clearly bring out the fact that Accused 1 and 2 came in a jeep and a car with rifles, with a few other persons, that they got into the bus from the front and fired indiscriminately at Tarkeshwar Prasad Singh. PW 5, a forest officer as an independent witness, who himself sustained injuries, has also stated that he knew Tarkeshwar Prasad Singh. He also stated that Tarkeshwar Prasad Singh died inside the bus on being hit by the bullets. There is no contradiction with regard to the crucial aspects, namely, that these witnesses travelled along with Tarkeshwar Prasad Singh in the same bus, that the bus stopped at Ketat Village to drop a passenger, at that time Accused 1 and 2 came in a jeep and a car with rifles from behind, along with others, surrounded the bus and after proclaiming that Tarkeshwar Prasad Singh is inside the bus and he should be cut into pieces, they entered the bus and fired indiscriminately, at Tarkeshwar Prasad Singh, which resulted in the death of Tarkeshwar Prasad Singh instantaneously9. PW. 4 - Dr. R. K. Pandey, who conducted the post-mortem examination of the dead body, proved the post-mortem certificate issued by him and also stated that the injuries referred to in the certificate were caused by firearms. Ext. 3 - certificate - is in his own handwriting and signed by him. Six metallic pieces recovered from the dead body were properly sealed and sent to the police. All the injuries were caused by some firearms. The post-mortem report - Annexure P-8, (Volume III of the paper-book) - mentions about two metallic pieces embodies in the wounds in the upper left side of the abdomen and also refers to a recovery of total six metallic pieces. The post - mortem report along with the evidence of the medical witness PW 4 substantiates that the injuries sustained by Tarkeshwar Prasad Singh were as a result of hosts received from the firearms and that they were fatal. Such injuries were sustained by Tarkeshwar Prasad Singh only due to the shots received from the firearms, employed by the accused against Tarkeshwar Prasad Singh, while in the bus as spoken to by eyewitnesses PW 1, PW 2, PW 5 and PW 8. The direct evidence in the case, amply corroborated by the motive of the accused, positively points out the intention of the accused to murder Tarkeshwar Prasad Singh10. Sachchidanand Deo, Inspector of Police, PW 14, who recorded the FIR, stated that he had seized two bullets on the front gate footsteps of the bus and that he did not find any rifle or gun at the place of occurrence or nearby and that he recorded the FIR and other statements from the wintesses etc. It is also important to notice that PW 8 has given the number of the Fiat car and the Jeep and PW 12 Chandreshwar Upadhayay, who came along with Prem Singh in the jeep has categorically stated that the number of the jeep is BRO 2770 and Prem Singh regularly used to bring him in that jeep11. Appellants counsel made a feeble attempt to contend that it is not clear in this case whether the injuries to Tarkeshwar Prasad Singh were caused by the rifle or by the gun. The plea was that the cartridges recovered were not sent to the ballistic expert nor was any ballistic expert examined. Our attention was invited to the decision of this Court in Mohinder Singh v. State and in particular to the observations of the Court at page 828 of the Report. We are of the view that the said decision is distinguishable. It will be found from page 825 of the Report that the accused in the said case produced a 12 bore gun Ext. P-16, for which he held the licence. He denied that he had fired with the said gun. His case was that Gurnam Singh, who reached the spot at about the time of incident, had fired at the deceased Dalip Singh. There were certain puzzling features of the injuries of Dalip Singh. It is in that connection the Court observed as followsIn a case where death is due to injuries or wounds caused by a lethal weapon, it has always been considered to be the duty of the possible for the injuries to have been caused with the weapon with which and the manner in which they are alleged to have been caused. *The above observations were made in a case where the weapon with which the victim sustained injuries was before the Court and there was doubt whether the injuries could have been caused by using that weapon Ext. P-16, in the reported case. In this case, the rifles used by Accused 1 and 2 were never recovered. So, the prosecution could not, in the circumstances, allege that a particular identifiable weapon was used in committing the crime. There was nothing to be examined by the ballistic expert. The observations in Mohinder Singh v. State should be understood in the above peculiar context. There is no merit in this plea | 0 | 5,383 | 2,180 | ### Instruction:
Determine the likely decision of the case (acceptance (1) or rejection (0)) and follow up with an explanation highlighting key sentences that support this prediction.
### Input:
with rifles and all of them started abusing Tarkeshwar Prasad Singh and stated that he should be cut into pieces. Prem Singh and Ramesh Singh stood near the front door of the bus and fired shots with rifles. PW 8 was successful in fleeing away by covering his face with a chadar. He saw that Tarkeshwar Prasad Singh to injured by the bullet inside the bus. Tarkeshwar Prasad Singh was behind him when firing had taken place. He did not see bullet being fired on any other passenger other than Tarkeshwar Prasad Singh. Another person, who was a forest guard, was injured on being hit by a bullet. The FIR available at pages 51-54 of Volume III of the paper-book and the deposition of the eyewitnesses, PW 1, PW 2, PW 5 and PW 8, of whom PW 5 is an independent witness, clearly bring out the fact that Accused 1 and 2 came in a jeep and a car with rifles, with a few other persons, that they got into the bus from the front and fired indiscriminately at Tarkeshwar Prasad Singh. PW 5, a forest officer as an independent witness, who himself sustained injuries, has also stated that he knew Tarkeshwar Prasad Singh. He also stated that Tarkeshwar Prasad Singh died inside the bus on being hit by the bullets. There is no contradiction with regard to the crucial aspects, namely, that these witnesses travelled along with Tarkeshwar Prasad Singh in the same bus, that the bus stopped at Ketat Village to drop a passenger, at that time Accused 1 and 2 came in a jeep and a car with rifles from behind, along with others, surrounded the bus and after proclaiming that Tarkeshwar Prasad Singh is inside the bus and he should be cut into pieces, they entered the bus and fired indiscriminately, at Tarkeshwar Prasad Singh, which resulted in the death of Tarkeshwar Prasad Singh instantaneously. 9. PW. 4 - Dr. R. K. Pandey, who conducted the post-mortem examination of the dead body, proved the post-mortem certificate issued by him and also stated that the injuries referred to in the certificate were caused by firearms. Ext. 3 - certificate - is in his own handwriting and signed by him. Six metallic pieces recovered from the dead body were properly sealed and sent to the police. All the injuries were caused by some firearms. The post-mortem report - Annexure P-8, (Volume III of the paper-book) - mentions about two metallic pieces embodies in the wounds in the upper left side of the abdomen and also refers to a recovery of total six metallic pieces. The post - mortem report along with the evidence of the medical witness PW 4 substantiates that the injuries sustained by Tarkeshwar Prasad Singh were as a result of hosts received from the firearms and that they were fatal. Such injuries were sustained by Tarkeshwar Prasad Singh only due to the shots received from the firearms, employed by the accused against Tarkeshwar Prasad Singh, while in the bus as spoken to by eyewitnesses PW 1, PW 2, PW 5 and PW 8. The direct evidence in the case, amply corroborated by the motive of the accused, positively points out the intention of the accused to murder Tarkeshwar Prasad Singh. 10. Sachchidanand Deo, Inspector of Police, PW 14, who recorded the FIR, stated that he had seized two bullets on the front gate footsteps of the bus and that he did not find any rifle or gun at the place of occurrence or nearby and that he recorded the FIR and other statements from the wintesses etc. It is also important to notice that PW 8 has given the number of the Fiat car and the Jeep and PW 12 Chandreshwar Upadhayay, who came along with Prem Singh in the jeep has categorically stated that the number of the jeep is BRO 2770 and Prem Singh regularly used to bring him in that jeep. . 11. Appellants counsel made a feeble attempt to contend that it is not clear in this case whether the injuries to Tarkeshwar Prasad Singh were caused by the rifle or by the gun. The plea was that the cartridges recovered were not sent to the ballistic expert nor was any ballistic expert examined. Our attention was invited to the decision of this Court in Mohinder Singh v. State and in particular to the observations of the Court at page 828 of the Report. We are of the view that the said decision is distinguishable. It will be found from page 825 of the Report that the accused in the said case produced a 12 bore gun Ext. P-16, for which he held the licence. He denied that he had fired with the said gun. His case was that Gurnam Singh, who reached the spot at about the time of incident, had fired at the deceased Dalip Singh. There were certain puzzling features of the injuries of Dalip Singh. It is in that connection the Court observed as follows. In a case where death is due to injuries or wounds caused by a lethal weapon, it has always been considered to be the duty of the possible for the injuries to have been caused with the weapon with which and the manner in which they are alleged to have been caused. * The above observations were made in a case where the weapon with which the victim sustained injuries was before the Court and there was doubt whether the injuries could have been caused by using that weapon Ext. P-16, in the reported case. In this case, the rifles used by Accused 1 and 2 were never recovered. So, the prosecution could not, in the circumstances, allege that a particular identifiable weapon was used in committing the crime. There was nothing to be examined by the ballistic expert. The observations in Mohinder Singh v. State should be understood in the above peculiar context. There is no merit in this plea.
### Response:
0
### Explanation:
others got out of the jeep with rifles and all of them started abusing Tarkeshwar Prasad Singh and stated that he should be cut into pieces. Prem Singh and Ramesh Singh stood near the front door of the bus and fired shots with rifles. PW 8 was successful in fleeing away by covering his face with a chadar. He saw that Tarkeshwar Prasad Singh to injured by the bullet inside the bus. Tarkeshwar Prasad Singh was behind him when firing had taken place. He did not see bullet being fired on any other passenger other than Tarkeshwar Prasad Singh. Another person, who was a forest guard, was injured on being hit by a bullet. The FIR available at pages 51-54 of Volume III of the paper-book and the deposition of the eyewitnesses, PW 1, PW 2, PW 5 and PW 8, of whom PW 5 is an independent witness, clearly bring out the fact that Accused 1 and 2 came in a jeep and a car with rifles, with a few other persons, that they got into the bus from the front and fired indiscriminately at Tarkeshwar Prasad Singh. PW 5, a forest officer as an independent witness, who himself sustained injuries, has also stated that he knew Tarkeshwar Prasad Singh. He also stated that Tarkeshwar Prasad Singh died inside the bus on being hit by the bullets. There is no contradiction with regard to the crucial aspects, namely, that these witnesses travelled along with Tarkeshwar Prasad Singh in the same bus, that the bus stopped at Ketat Village to drop a passenger, at that time Accused 1 and 2 came in a jeep and a car with rifles from behind, along with others, surrounded the bus and after proclaiming that Tarkeshwar Prasad Singh is inside the bus and he should be cut into pieces, they entered the bus and fired indiscriminately, at Tarkeshwar Prasad Singh, which resulted in the death of Tarkeshwar Prasad Singh instantaneously9. PW. 4 - Dr. R. K. Pandey, who conducted the post-mortem examination of the dead body, proved the post-mortem certificate issued by him and also stated that the injuries referred to in the certificate were caused by firearms. Ext. 3 - certificate - is in his own handwriting and signed by him. Six metallic pieces recovered from the dead body were properly sealed and sent to the police. All the injuries were caused by some firearms. The post-mortem report - Annexure P-8, (Volume III of the paper-book) - mentions about two metallic pieces embodies in the wounds in the upper left side of the abdomen and also refers to a recovery of total six metallic pieces. The post - mortem report along with the evidence of the medical witness PW 4 substantiates that the injuries sustained by Tarkeshwar Prasad Singh were as a result of hosts received from the firearms and that they were fatal. Such injuries were sustained by Tarkeshwar Prasad Singh only due to the shots received from the firearms, employed by the accused against Tarkeshwar Prasad Singh, while in the bus as spoken to by eyewitnesses PW 1, PW 2, PW 5 and PW 8. The direct evidence in the case, amply corroborated by the motive of the accused, positively points out the intention of the accused to murder Tarkeshwar Prasad Singh10. Sachchidanand Deo, Inspector of Police, PW 14, who recorded the FIR, stated that he had seized two bullets on the front gate footsteps of the bus and that he did not find any rifle or gun at the place of occurrence or nearby and that he recorded the FIR and other statements from the wintesses etc. It is also important to notice that PW 8 has given the number of the Fiat car and the Jeep and PW 12 Chandreshwar Upadhayay, who came along with Prem Singh in the jeep has categorically stated that the number of the jeep is BRO 2770 and Prem Singh regularly used to bring him in that jeep11. Appellants counsel made a feeble attempt to contend that it is not clear in this case whether the injuries to Tarkeshwar Prasad Singh were caused by the rifle or by the gun. The plea was that the cartridges recovered were not sent to the ballistic expert nor was any ballistic expert examined. Our attention was invited to the decision of this Court in Mohinder Singh v. State and in particular to the observations of the Court at page 828 of the Report. We are of the view that the said decision is distinguishable. It will be found from page 825 of the Report that the accused in the said case produced a 12 bore gun Ext. P-16, for which he held the licence. He denied that he had fired with the said gun. His case was that Gurnam Singh, who reached the spot at about the time of incident, had fired at the deceased Dalip Singh. There were certain puzzling features of the injuries of Dalip Singh. It is in that connection the Court observed as followsIn a case where death is due to injuries or wounds caused by a lethal weapon, it has always been considered to be the duty of the possible for the injuries to have been caused with the weapon with which and the manner in which they are alleged to have been caused. *The above observations were made in a case where the weapon with which the victim sustained injuries was before the Court and there was doubt whether the injuries could have been caused by using that weapon Ext. P-16, in the reported case. In this case, the rifles used by Accused 1 and 2 were never recovered. So, the prosecution could not, in the circumstances, allege that a particular identifiable weapon was used in committing the crime. There was nothing to be examined by the ballistic expert. The observations in Mohinder Singh v. State should be understood in the above peculiar context. There is no merit in this plea
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Sohan Lal Passi Vs. P. Sesh Reddy and Ors. | on the person insured. If the person who has got the vehicle insured has allowed the vehicle to be driven by a person who is not duly licensed then only that clause shall be attracted. In a case where the person who has got insured the vehicle with the insurance company, has appointed a duly licensed driver and if the accident takes place when the vehicle is being driven by a person not duly licensed on the basis of the authority of the driver duly authorised to drive the vehicle whether the insurance company in that event shall be absolved from its liability? The expression breach occurring in Section 96(2)(b) means infringement or violation of a promise or obligation. As such the insurance company will have to establish that the insured was guilty of an infringement or violation of a promise. The insurer has also to satisfy the Tribunal or the Court that such violation or infringement on the part of the insured was wilful. If the insured has taken all precautions by appointing a duly licensed driver to drive the vehicle in question and it has not been established that it was the insured who allowed the vehicle to be driven by a person not duly licensed, then the insurance company cannot repudiate its statutory liability under Sub-section (1) of Section 96. In the present case far from establishing that it was the appellant who had allowed Rajinder Pal Singh to drive the vehicle when the accident took place, there is not even any allegation that it was the appellant who was guilty of violating the condition that the vehicle shall not be driven by a person not duly licensed. From the facts of the case, it appears that the appellant had done everything within his power inasmuch as he has engaged a licensed driver Gurubachan Singh and had placed the vehicle in his charge. While interpreting the contract of insurance, the Tribunal and Courts have to be conscious of the fact that right to claim compensation by heirs and legal representatives of the victims of the accident is not defeated on technical grounds. Unless it is established on the materials on record that it was the insured who had wilfully violated the condition of the policy by allowing a person not duly licensed to drive the vehicle when the accident took place, the insurer shall be deemed to be a judgment-debtor in respect of the liability in view of Sub-section (1) of Section 96 of the Act. It need not be pointed out that the whole concept of getting the vehicle insured by an insurance company is to provide an easy mode of getting compensation by the claimants, otherwise in normal course they had to pursue their claim against the owner from one forum to the other and ultimately to execute the order of the Accident Claims Tribunal for realisation of such amount by sale of properties of the owner of the vehicle. The procedure and result of the execution of the decree is well known. 12. This Court in the case of Kashiram Yadav and Anr. v. Oriental Fire and General Insurance Co. and Ors. [1989]3SCR811 reiterated the views expressed in Skandia Insurance Co. Ltd. v. Kokilaben Chandravadan, (supra). While referring to that case it was said: There the facts found were quite different, the vehicle concerned in that case was undisputedly entrusted to the driver who had a valid licence. In transit the driver stopped the vehicle and went to fetch some snacks from the opposite shop leaving the engine on. The ignition key was at the ignition lock and not in the cabin of the truck. The driver had asked the cleaner to take care of the truck. In fact the driver had left the truck in care of the cleaner. The cleaner meddled with the vehicle and caused the accident. The question arose whether the insured (owner) had committed a breach of the condition incorporated in the certificate of insurance since the cleaner operated the vehicle on the fatal occasion without driving licence. This Court expressed the view that it is only when the insured himself entrusted the vehicle to a person who does not hold a driving licence, he could be said to have committed breach of the condition of the policy. It must be established by the Insurance Company that the breach is on the part of the insured. Unless the insured is at fault and is guilty of a breach of the condition, the insurer cannot escape from the obligation to indemnify the insured. It was also observed that when the insured has done everything within his power inasmuch as he has engaged the licensed driver and has placed the vehicle in his charge with the express or implied mandate to drive himself, it cannot be said that the insured is guilty of any breach. We affirm and reiterate the statement of law laid down in the above case. We may also state that without the knowledge of the insured, if by drivers acts or omission others meddle with the vehicle and cause an accident, the insurer would be liable to indemnify the insured. The insurer in such a case cannot take the defence of a breach of the condition in the certificate of insurance. We are in respectful agreement with the view expressed in the case of Skandia Insurance Co. Ltd. v. Kokilaben Chandravadan, (supra). 13. As in the facts of the present case, the appellant shall be deemed to be liable to pay compensation applying the principle of vicarious liability because the accident took place when the act authorised was being performed in a mode which may not be proper but was directly connected with in the course of employment, Sub-section (1) of Section 96 of the Act shall come into play and the insurance company shall be deemed to be the judgment-debtor, so far the claim made by the heirs and legal representatives of the deceased is concerned. | 1[ds]8. In the case of Pushpabai Purshottam Udeshi v. Ranjit Ginning and Pressing Co. (P) Ltd. [1977]3SCR372 , it was said:we would like to point out that the recent trend in law is to make the master liable for acts which do not strictly fall within the term in course of the employment as ordinarily understood. We have referred to Sitaram Motilal Kalal v. Santanuprasad Jaishankar Bhatt where this Court accepted the law laid down by Lord Denning ind v. Crosville Motor Services Ltd.that the owner is not only liable for the negligence of the driver if that driver is his servant acting in the course of his employment but also when the driver is with the owners consent, driving the car on the owners business or for the owners purposes. This extension has been accepted by this Court. The law as laid down by Lord Denning in Young v. Edward Box and Co. Ltd. already referred to i.e. the first question is to see whether the servant is liable and if the answer is yes, the second question is to see whether the employer must shoulder the servants liability, has been uniformly accepted as stated in Salmonds Law of Torts, 15th Edn., p.606, in Crown Proceedings Act, 1947 and approved by the House of Lords iny Iron and Chemical Co. Ltd. v.Jones and ICI Ltd. v.Same is the position in the present case. The appellant had authorised Gurubachan Singh to drive the vehicle, but Gurubachan Singh allowed Rajinder Pal Singh, the cleaner/conductor who was also the employee of the appellant to drive the vehicle because of which the accident took place. It is not the stand of the appellant that Rajinder Pal Singh was driving the vehicle without the knowledge or consent of Gurubachan Singh, for his personal pursuit. He was driving the bus for the business of the appellant, that is to carry on the passengers. In this background, the appellant cannot escape the liability so far the third parties are concerned on the ground that he had not actually authorised the particular manner in which the act was done. As it has been established that the negligent act of Gurubachan Singh and respondent Rajinder Pal Singh was in the course of employment the appellant shall be liable for the same. In the present case, the accident took place when the act authorised was being performed in a mode which may not be proper but nonetheless it was directly connected within the course of employment. It was not an independent act for a purpose which had no nexus or connection with the business of the appellant so as to absolve the appellant from the liability.10. Some of the aforesaid significant amendments introduced in the Motor Vehicle Act, 1939 and Motor Vehicles Act, 1988 have been referred to above only to indicate that even parliament is conscious that right to claim compensation by the claimants in connection with the motor vehicles accidents should not be defeated on technical grounds.In the present case the accident took place when the Motor Vehicles Act, 1939 was in force. Section 96 of that act prescribed the duty of the insurers to satisfy the judgment against persons insured in respect of third party risks (the parallel provision being Section 149 in the Motor Vehicles Act, 1988).In view of Sub-section (1) of Section 96 if after the certificate of insurance has been issued in favour of the person by whom a policy has been effected, judgment in respect of any such liability as is required to be covered by a policy, the insurer shall subject to the provisions of the said section pay to the person entitled to the benefit of the decree any sum not exceeding the sum assured payable thereunder, as if he was the judgment-debtor, in respect of the liability. (emphasis supplied). Sub-section (2) of Section 96 enjoins that notice of the proceedings in which the judgment is given, has to be given to the insurer and such insurer shall be entitled to defend the action on any of the grounds mentioned in Sub-section (2) of Section 96. We are concerned in the present case only with Section 96(2)(b)(ii), a condition excluding driving by any person who is not duly licensed.According to us, Section 96(2)(b)(ii) should not be interpreted in a technical manner. Sub-section (2) of Section 96 only enables the insurance company to defend itself in respect of the liability to pay compensation on any of the grounds mentioned in Sub-section (2) including that there has been a contravention of the condition excluding the vehicle being driven by any person is not duly licensed. This bar on face of it operates on the person insured. If the person who has got the vehicle insured has allowed the vehicle to be driven by a person who is not duly licensed then only that clause shall be attracted. In a case where the person who has got insured the vehicle with the insurance company, has appointed a duly licensed driver and if the accident takes place when the vehicle is being driven by a person not duly licensed on the basis of the authority of the driver duly authorised to drive the vehicle whether the insurance company in that event shall be absolved from its liability? The expression breach occurring in Section 96(2)(b) means infringement or violation of a promise or obligation. As such the insurance company will have to establish that the insured was guilty of an infringement or violation of a promise. The insurer has also to satisfy the Tribunal or the Court that such violation or infringement on the part of the insured was wilful. If the insured has taken all precautions by appointing a duly licensed driver to drive the vehicle in question and it has not been established that it was the insured who allowed the vehicle to be driven by a person not duly licensed, then the insurance company cannot repudiate its statutory liability under Sub-section (1) of Section 96.In the present case far from establishing that it was the appellant who had allowed Rajinder Pal Singh to drive the vehicle when the accident took place, there is not even any allegation that it was the appellant who was guilty of violating the condition that the vehicle shall not be driven by a person not duly licensed. From the facts of the case, it appears that the appellant had done everything within his power inasmuch as he has engaged a licensed driver Gurubachan Singh and had placed the vehicle in his charge. While interpreting the contract of insurance, the Tribunal and Courts have to be conscious of the fact that right to claim compensation by heirs and legal representatives of the victims of the accident is not defeated on technical grounds. Unless it is established on the materials on record that it was the insured who had wilfully violated the condition of the policy by allowing a person not duly licensed to drive the vehicle when the accident took place, the insurer shall be deemed to be a judgment-debtor in respect of the liability in view of Sub-section (1) of Section 96 of the Act. It need not be pointed out that the whole concept of getting the vehicle insured by an insurance company is to provide an easy mode of getting compensation by the claimants, otherwise in normal course they had to pursue their claim against the owner from one forum to the other and ultimately to execute the order of the Accident Claims Tribunal for realisation of such amount by sale of properties of the owner of the vehicle. The procedure and result of the execution of the decree is well known.12. This Court in the case of Kashiram Yadav and Anr. v. Oriental Fire and General Insurance Co. and Ors. [1989]3SCR811 reiterated the views expressed in Skandia Insurance Co. Ltd. v. Kokilaben Chandravadan, (supra). While referring to that case it was said:There the facts found were quite different, the vehicle concerned in that case was undisputedly entrusted to the driver who had a valid licence. In transit the driver stopped the vehicle and went to fetch some snacks from the opposite shop leaving the engine on. The ignition key was at the ignition lock and not in the cabin of the truck. The driver had asked the cleaner to take care of the truck. In fact the driver had left the truck in care of the cleaner. The cleaner meddled with the vehicle and caused the accident. The question arose whether the insured (owner) had committed a breach of the condition incorporated in the certificate of insurance since the cleaner operated the vehicle on the fatal occasion without driving licence. This Court expressed the view that it is only when the insured himself entrusted the vehicle to a person who does not hold a driving licence, he could be said to have committed breach of the condition of the policy. It must be established by the Insurance Company that the breach is on the part of the insured. Unless the insured is at fault and is guilty of a breach of the condition, the insurer cannot escape from the obligation to indemnify the insured. It was also observed that when the insured has done everything within his power inasmuch as he has engaged the licensed driver and has placed the vehicle in his charge with the express or implied mandate to drive himself, it cannot be said that the insured is guilty of any breach.We affirm and reiterate the statement of law laid down in the above case. We may also state that without the knowledge of the insured, if by drivers acts or omission others meddle with the vehicle and cause an accident, the insurer would be liable to indemnify the insured. The insurer in such a case cannot take the defence of a breach of the condition in the certificate of insurance.We are in respectful agreement with the view expressed in the case of Skandia Insurance Co. Ltd. v. Kokilaben Chandravadan, (supra).13. As in the facts of the present case, the appellant shall be deemed to be liable to pay compensation applying the principle of vicarious liability because the accident took place when the act authorised was being performed in a mode which may not be proper but was directly connected with in the course of employment, Sub-section (1) of Section 96 of the Act shall come into play and the insurance company shall be deemed to be the judgment-debtor, so far the claim made by the heirs and legal representatives of the deceased is concerned. | 1 | 5,612 | 1,937 | ### 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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on the person insured. If the person who has got the vehicle insured has allowed the vehicle to be driven by a person who is not duly licensed then only that clause shall be attracted. In a case where the person who has got insured the vehicle with the insurance company, has appointed a duly licensed driver and if the accident takes place when the vehicle is being driven by a person not duly licensed on the basis of the authority of the driver duly authorised to drive the vehicle whether the insurance company in that event shall be absolved from its liability? The expression breach occurring in Section 96(2)(b) means infringement or violation of a promise or obligation. As such the insurance company will have to establish that the insured was guilty of an infringement or violation of a promise. The insurer has also to satisfy the Tribunal or the Court that such violation or infringement on the part of the insured was wilful. If the insured has taken all precautions by appointing a duly licensed driver to drive the vehicle in question and it has not been established that it was the insured who allowed the vehicle to be driven by a person not duly licensed, then the insurance company cannot repudiate its statutory liability under Sub-section (1) of Section 96. In the present case far from establishing that it was the appellant who had allowed Rajinder Pal Singh to drive the vehicle when the accident took place, there is not even any allegation that it was the appellant who was guilty of violating the condition that the vehicle shall not be driven by a person not duly licensed. From the facts of the case, it appears that the appellant had done everything within his power inasmuch as he has engaged a licensed driver Gurubachan Singh and had placed the vehicle in his charge. While interpreting the contract of insurance, the Tribunal and Courts have to be conscious of the fact that right to claim compensation by heirs and legal representatives of the victims of the accident is not defeated on technical grounds. Unless it is established on the materials on record that it was the insured who had wilfully violated the condition of the policy by allowing a person not duly licensed to drive the vehicle when the accident took place, the insurer shall be deemed to be a judgment-debtor in respect of the liability in view of Sub-section (1) of Section 96 of the Act. It need not be pointed out that the whole concept of getting the vehicle insured by an insurance company is to provide an easy mode of getting compensation by the claimants, otherwise in normal course they had to pursue their claim against the owner from one forum to the other and ultimately to execute the order of the Accident Claims Tribunal for realisation of such amount by sale of properties of the owner of the vehicle. The procedure and result of the execution of the decree is well known. 12. This Court in the case of Kashiram Yadav and Anr. v. Oriental Fire and General Insurance Co. and Ors. [1989]3SCR811 reiterated the views expressed in Skandia Insurance Co. Ltd. v. Kokilaben Chandravadan, (supra). While referring to that case it was said: There the facts found were quite different, the vehicle concerned in that case was undisputedly entrusted to the driver who had a valid licence. In transit the driver stopped the vehicle and went to fetch some snacks from the opposite shop leaving the engine on. The ignition key was at the ignition lock and not in the cabin of the truck. The driver had asked the cleaner to take care of the truck. In fact the driver had left the truck in care of the cleaner. The cleaner meddled with the vehicle and caused the accident. The question arose whether the insured (owner) had committed a breach of the condition incorporated in the certificate of insurance since the cleaner operated the vehicle on the fatal occasion without driving licence. This Court expressed the view that it is only when the insured himself entrusted the vehicle to a person who does not hold a driving licence, he could be said to have committed breach of the condition of the policy. It must be established by the Insurance Company that the breach is on the part of the insured. Unless the insured is at fault and is guilty of a breach of the condition, the insurer cannot escape from the obligation to indemnify the insured. It was also observed that when the insured has done everything within his power inasmuch as he has engaged the licensed driver and has placed the vehicle in his charge with the express or implied mandate to drive himself, it cannot be said that the insured is guilty of any breach. We affirm and reiterate the statement of law laid down in the above case. We may also state that without the knowledge of the insured, if by drivers acts or omission others meddle with the vehicle and cause an accident, the insurer would be liable to indemnify the insured. The insurer in such a case cannot take the defence of a breach of the condition in the certificate of insurance. We are in respectful agreement with the view expressed in the case of Skandia Insurance Co. Ltd. v. Kokilaben Chandravadan, (supra). 13. As in the facts of the present case, the appellant shall be deemed to be liable to pay compensation applying the principle of vicarious liability because the accident took place when the act authorised was being performed in a mode which may not be proper but was directly connected with in the course of employment, Sub-section (1) of Section 96 of the Act shall come into play and the insurance company shall be deemed to be the judgment-debtor, so far the claim made by the heirs and legal representatives of the deceased is concerned.
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bar on face of it operates on the person insured. If the person who has got the vehicle insured has allowed the vehicle to be driven by a person who is not duly licensed then only that clause shall be attracted. In a case where the person who has got insured the vehicle with the insurance company, has appointed a duly licensed driver and if the accident takes place when the vehicle is being driven by a person not duly licensed on the basis of the authority of the driver duly authorised to drive the vehicle whether the insurance company in that event shall be absolved from its liability? The expression breach occurring in Section 96(2)(b) means infringement or violation of a promise or obligation. As such the insurance company will have to establish that the insured was guilty of an infringement or violation of a promise. The insurer has also to satisfy the Tribunal or the Court that such violation or infringement on the part of the insured was wilful. If the insured has taken all precautions by appointing a duly licensed driver to drive the vehicle in question and it has not been established that it was the insured who allowed the vehicle to be driven by a person not duly licensed, then the insurance company cannot repudiate its statutory liability under Sub-section (1) of Section 96.In the present case far from establishing that it was the appellant who had allowed Rajinder Pal Singh to drive the vehicle when the accident took place, there is not even any allegation that it was the appellant who was guilty of violating the condition that the vehicle shall not be driven by a person not duly licensed. From the facts of the case, it appears that the appellant had done everything within his power inasmuch as he has engaged a licensed driver Gurubachan Singh and had placed the vehicle in his charge. While interpreting the contract of insurance, the Tribunal and Courts have to be conscious of the fact that right to claim compensation by heirs and legal representatives of the victims of the accident is not defeated on technical grounds. Unless it is established on the materials on record that it was the insured who had wilfully violated the condition of the policy by allowing a person not duly licensed to drive the vehicle when the accident took place, the insurer shall be deemed to be a judgment-debtor in respect of the liability in view of Sub-section (1) of Section 96 of the Act. It need not be pointed out that the whole concept of getting the vehicle insured by an insurance company is to provide an easy mode of getting compensation by the claimants, otherwise in normal course they had to pursue their claim against the owner from one forum to the other and ultimately to execute the order of the Accident Claims Tribunal for realisation of such amount by sale of properties of the owner of the vehicle. The procedure and result of the execution of the decree is well known.12. This Court in the case of Kashiram Yadav and Anr. v. Oriental Fire and General Insurance Co. and Ors. [1989]3SCR811 reiterated the views expressed in Skandia Insurance Co. Ltd. v. Kokilaben Chandravadan, (supra). While referring to that case it was said:There the facts found were quite different, the vehicle concerned in that case was undisputedly entrusted to the driver who had a valid licence. In transit the driver stopped the vehicle and went to fetch some snacks from the opposite shop leaving the engine on. The ignition key was at the ignition lock and not in the cabin of the truck. The driver had asked the cleaner to take care of the truck. In fact the driver had left the truck in care of the cleaner. The cleaner meddled with the vehicle and caused the accident. The question arose whether the insured (owner) had committed a breach of the condition incorporated in the certificate of insurance since the cleaner operated the vehicle on the fatal occasion without driving licence. This Court expressed the view that it is only when the insured himself entrusted the vehicle to a person who does not hold a driving licence, he could be said to have committed breach of the condition of the policy. It must be established by the Insurance Company that the breach is on the part of the insured. Unless the insured is at fault and is guilty of a breach of the condition, the insurer cannot escape from the obligation to indemnify the insured. It was also observed that when the insured has done everything within his power inasmuch as he has engaged the licensed driver and has placed the vehicle in his charge with the express or implied mandate to drive himself, it cannot be said that the insured is guilty of any breach.We affirm and reiterate the statement of law laid down in the above case. We may also state that without the knowledge of the insured, if by drivers acts or omission others meddle with the vehicle and cause an accident, the insurer would be liable to indemnify the insured. The insurer in such a case cannot take the defence of a breach of the condition in the certificate of insurance.We are in respectful agreement with the view expressed in the case of Skandia Insurance Co. Ltd. v. Kokilaben Chandravadan, (supra).13. As in the facts of the present case, the appellant shall be deemed to be liable to pay compensation applying the principle of vicarious liability because the accident took place when the act authorised was being performed in a mode which may not be proper but was directly connected with in the course of employment, Sub-section (1) of Section 96 of the Act shall come into play and the insurance company shall be deemed to be the judgment-debtor, so far the claim made by the heirs and legal representatives of the deceased is concerned.
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ADDL. COMMISSIONER (LEGAL) AND ANOTHER Vs. M/S. JYOTI TRADERS AND ANOTHER | of such year. However, after the amendment, a proviso was added to sub-section (2) under which Commissioner of Sales Tax authorities the assessing authority to make assessment or reassessment after the are of any help in interpreting the provisions of law now before us. In Y. Narayana Chettys case this Court upheld the contention of the assessee that the notice on the assessee is a condition precedent to the validity of reassessment made u/s 34 of the Income Tax Act, 1922. The Court said that notice prescribed under this section could not be regarded as a mere procedural requirement and that the income tax Officer gets jurisdiction to reassess only when notice is served on the assessee as required. In S.S. Gadgils case this Court said that in considering whether the amending statute applied, the question was one of the interpretation and that the amending provision must be read subject to the rules that in the absence of an express provision or clear implication the legislature does not intend to attribute to the amending provision a greater retrospectivity than expressly mentioned. J.P. Janis case was concerned with the retrospective operation of the new Income Tax Act, 1961 when assessment proceedings under the old Income Tax Act, 1922 had already concluded and period to re-open the assessment under the old Act had become barred. 26. The two decisions in the cases of The Ahmedabad Manufacturing & Calico Printing Co. Ltd. and Biswanath Jhunjhunwalla & Anr. are more closer to the issue involved in the present case before us. They laid down that it is the language of the provision that matters and when meaning is clear, it has to be given full effect. In both these cases this Court held that the proviso which amended the existing provision gave it retrospectivity. When the provision of law is explicit, it has to operate fully and there could not be any limits to its operation. This Court in Biswanath Jhunjhunwalla case said that if the language expressly so states or clearly implies, retrospectivity must be given to the provision. u/s 34 of the Income Tax, 1922, it is the service of the notice which is sine qua non, an indispensable requisite, for the initiation of assessment or reassessment proceedings where income had escaped assessment. That is not so in the present case. Under sub-section (1) of Section 21 of the Act before its amendment, the assessing authority may, after issuing notice to the dealer and making such inquiry as it may consider necessary, assess or reassess the dealer according to law. Sub-section (2) provided that except as otherwise provided in this Section no order for any assessment year shall be made after the expiry of 4 years from the end of such year. However, after the amendment, a proviso was added to sub-section (2) under which Commissioner of Sales Tax authorises the assessing authority to make assessment or reassessment after the expiration of 8 years from the end of such year notwithstanding that such assessment or reassessment may involve a change of opinion. The proviso came into force w.e.f. February 19, 1991. We do not think that sub-section (2) and the proviso added to it leave anyone in doubt that as one the date when the proviso came into force, the Commissioner of Sales Tax could authorise making of assessment or reassessment after the expiration of 8 years from the end of that particular assessment year. It is immaterial if a period for assessment or reassessment under sub-section (2) of Section 21 before the addition of the said proviso had expired. Here, it is the completion of assessment or reassessment u/s 21 which is to be done before the expiration of 8 years of that particular assessment year. Read as it is, these provisions would mean that the assessment for the year 1985-86 could be re-opened up to March 31, 1994. Authorisation by the Commissioner of Sales Tax and completion of assessment or reassessment under sub-section (1) of Section 21 have to be completed within 8 years of the particular assessment year. Notice to the assessee follows the authorisation by the Commissioner of Sales Tax, its service on the assessee is not a condition precedent to re-open the assessment. It is not disputed that a fiscal statute can have retrospective operation. If we accept the interpretation given by the respondents, the proviso added to sub-section (2) of Section 21 of the Act becomes redundant. Commencement of Act can be different than the operation of the Act though sometimes both may be the same. Proviso now added to sub-section (2) of Section 21 of the Act does not put any embargo on the Commissioner of Sales Tax not to reopen the assessment if period, as prescribed earlier, had expired before the proviso came into operation. One has to see the language of the provision. If it is clear, it has to be given its full effect. To re-assure oneself, one may go into the intention of the legislature in enacting such provision. The date of commencement of the proviso to Section 21(2) of the Act does not control its retrospective operation. Earlier the assessment/ re-assessment could have been completed within four years of that particular assessment year and now by the amendment adding proviso to Section 21(2) of the Act it is eight years. The only safeguard being that it is after satisfaction of the Commissioner of Sales Tax. The proviso is operative from February 19, 1991 and a bare reading of the proviso shows that the operation of this proviso relates and encompasses back to previous eight assessment years. We need not refer to the provisions of Income Tax Act to interpret proviso to Section 21(2) language of which is clear and unambiguous and so is the intention of Legislature. We are, thus, of the view that High Court was not right in quashing the sanction given by the Commissioner of Sales Tax and notices issued by the Assessing Authority in pursuance thereto. | 1[ds]10. There are other amendments in section 21 which were made by subsequent amending Acts but with those we are not concerned.11. As noted above, the proviso to sub-section 2 of section 21 as inserted by the amending Act, 1991 came into force with effect from February 19, 1991.12. High Court had held that sanction issued by the Commissioner of Sales Tax for initiation of proceedings u/s 21 of the Act for the Assessment Year 1985-86 was barred by limitation and that the proviso to Section 21(2) of the Act which had been introduced with effect from February 19, 1991 and was inapplicable to the Assessment Year 1985-86 as the assessment order for this year had been made much before the introduction of the proviso to Section 21(2) of the Act. High Court was thus of the view that when the period for assessment or re-assessment for the year 1985-86 u/s 21 of the Act before insertion of the proviso to Sub-section (2) thereof had expired on March 31, 1990, the amendment had no effect.15. After this amendment to Rule 80(5) as aforesaid Commercial Tax Officer issued notices on November 7, 1974 re-opening the completed assessments for the years Chaitra Sudi 2023 and 2024. These notices were challenged in the Calcutta High Court by writ petition questioning the legality of the notices. High Court upheld the contention of the respondent-assessee that by the amendment of the Rule, assessments which had been completed could be revised within six years of the date of such completion, but when the right to revise the assessments under the unamended provision of the rule stood barred on the date of the amendment, such assessments could not be re-opened or revised. High Court said that the notification did not either expressly or necessary implication confer any power of revision of assessment which stood barred on the date on which it was issued. After referring to decision of this Court in the cases of ITO vs. S.K. Habibullah (1962) 44 ITR 8091, S.S. Gadgil, Income Tax Officer, Bombay Vs. Lal and Company, and J.P. Jani, Income Tax Officer, Circle IV, Ward G, Ahmedabad and Another Vs. Induprasad Devshanker Bhatt, [this Court held as under :-12. What, therefore, we have to seek is the clear meaning of the said Notification. If there be no doubt about the meaning the amendment brought about by the said Notification must be given full effect. If the language expressly so states or clearly implies, retrospectively must be given with effect from 1.11.1971, so as to encompass all assessments made within the period of six years theretofore, whether they have become final by reason of the expiry of the period of four years or not.13. BY reason of the said Notification, with effect from 1.11.1971, Rule 80(5)(ii) has to be read as barring the Commissioner (or other authority to whom power in this behalf has been delegated by the Commissioner) from revising of his own motion any assessment made or order passed under the Act or the rules if the assessment has been made or the order has been passed more than six years previous to 1.11.1971. Put conversely, with effect from 1.11.1971, Rule 80(5)(ii) permits the Commissioner (or other authority) to revise of his own motion any assessment made or order passed under the Act or the rules provided the assessment has not been made or the order passed more than six years previously. This being the plain meaning, the said Notification must be given full effect. Full effect can be given only if the said Notification is read as being applicable not only to assessments which were incomplete but also to assessments which had reached finality by reason of the earlier prescribed period of four years having elapsed. Where language as unambiguous as this is employed, it must be assumed that the legislature intended the amended provision to apply even to assessments that had so become final; if the intention was otherwise, the legislature would have so stated.21. In J.P. Jani income tax Officer Circle IV Ward G Ahmedabad & Anr. vs. Induprasad Devshanker Bhatt the assessment for the assessment year 1947-48 was completed on January 31, 1952 under the Income Tax Act, 1922. Thereafter, the income tax Officer received information that a certain profit made by the assessee had escaped assessment by reason of the assessee not having disclosed at the time of the original assessment. The income tax Officer, therefore, after obtaining the approval of the Commissioner of income tax issued notice dated March 27, 1956 u/s 34(1)(a) of the Income Tax Act, 1922. By order dated March 29, 1957, the income tax Officer completed re-assessment proceedings. Assessee went in appeal to the Appellate Assistant Commissioner who allowed the same by Order dated January 5, 1963 and set aside the order of assessment on the ground that there was no valid service of notice. By this time, Income Tax Act, 1961 had come into force. On January 4, 1963, the income tax Officer issued a notice calling upon the assessee to show cause why proceedings should not be taken u/s 147(a) of the new Act for bringing to tax the escaped profit of the assessee. Subsequently, notice u/s 148 of the Act new was issued. Assessee protested against this new notice on the ground that action under the old Act had become time barred and the new Act had no application to his case. After considering the provisions of the old Act and Section 297 of the new Act which repealed the old Act and on the effect of the repeal, this Court said that all the new sections must be read as applicable only to those cases where right of the income tax Officer to re-open the assessment was not barred under the repealed section. The Court held as under:In our view, the new statute does not disclose in express terms or by necessary implication that there was a revival of the right of the income tax Officer to re-open an assessment which was already barred under the old Act. This view is brone out by the decision of this Court in S.S. Gadgil, Income Tax Officer, Bombay Vs. Lal and Company,This Court observed that neither by express terms nor by necessary implication did Section 297(2)(d)(ii) disclosed that there was a revival of the right of the income tax Officer to re-open an assessment which was already barred under the old Act. The Section was applicable only to those cases where the right of the income tax Officer to re-open the assessment was not barred under the old Act.24. We do not think that decisions in the cases of Y. Narayana Chetty & Anr.; S.S. Gadgil and J.P. Jani ITO are of any help in interpreting the provisions of law now before us. In Y. Narayana Chettys case this Court upheld the contention of the assessee that the notice on the assessee is a condition precedent to the validity of reassessment made u/s 34 of the Income Tax Act, 1922. The Court said that notice prescribed under this section could not be regarded as a mere procedural requirement and that the income tax Officer gets jurisdiction to reassess only when notice is served on the assessee as required. In S.S. Gadgils case this Court said that in considering whether the amending statute applied the question was one of the interpretation and that the amending provision must be read subject to the rules that in the absence of an express provision or clear implication the legislature does not intend to attribute to the amending provision a greater retrospectivity than expressly mentioned.J.P. Janis case was concerned with the retrospective operation of the new Income Tax Act, 1961 when assessment proceedings under the old Income Tax Act, 1922 had already concluded and period to re-open the assessment under the old Act had become barred.25. The two decisions in the cases of The Ahmedabad Manufacturing & Calico Printing Co. Ltd. and Biswanath Jhunjhunwalla & Anr. are more closer to the issue involved in the present case before us. They laid down that it is the language of the provision that matters and when meaning is clear, it has to be given full effect. In both these cases this Court held that the proviso which amended the existing provision gave it retrospectivity. When the provision of law is explicit, it has to operate fully and there could not be any limits to its operation. This Court in Biswanath Jhunjhunwalla case said that if the language expressly so states or clearly implies, retrospectivity must be given to the provision. u/s 34 of the Income Tax, 1922, it is the service of the notice which is sine qua non, an indispensable requisite, for the initiation of assessment or reassessment proceedings where income had escaped assessment. That is not so in the present case. Under sub-section (1) of Section 21 of the Act before its amendment, the assessing authority may, after issuing notice to the dealer and making such inquiry as it may consider necessary, assess or reassess the dealer according to law. Sub-section (2) provided that except as otherwise provided in this Section no order for any assessment year shall be made after the expiry of 4 years from the end of such year. However, after the amendment, a proviso was added to sub-section (2) under which Commissioner of Sales Tax authorities the assessing authority to make assessment or reassessment after the are of any help in interpreting the provisions of law now before us. In Y. Narayana Chettys case this Court upheld the contention of the assessee that the notice on the assessee is a condition precedent to the validity of reassessment made u/s 34 of the Income Tax Act, 1922. The Court said that notice prescribed under this section could not be regarded as a mere procedural requirement and that the income tax Officer gets jurisdiction to reassess only when notice is served on the assessee as required. In S.S. Gadgils case this Court said that in considering whether the amending statute applied, the question was one of the interpretation and that the amending provision must be read subject to the rules that in the absence of an express provision or clear implication the legislature does not intend to attribute to the amending provision a greater retrospectivity than expressly mentioned. J.P. Janis case was concerned with the retrospective operation of the new Income Tax Act, 1961 when assessment proceedings under the old Income Tax Act, 1922 had already concluded and period to re-open the assessment under the old Act had become barred.26. The two decisions in the cases of The Ahmedabad Manufacturing & Calico Printing Co. Ltd. and Biswanath Jhunjhunwalla & Anr. are more closer to the issue involved in the present case before us. They laid down that it is the language of the provision that matters and when meaning is clear, it has to be given full effect. In both these cases this Court held that the proviso which amended the existing provision gave it retrospectivity. When the provision of law is explicit, it has to operate fully and there could not be any limits to its operation. This Court in Biswanath Jhunjhunwalla case said that if the language expressly so states or clearly implies, retrospectivity must be given to the provision. u/s 34 of the Income Tax, 1922, it is the service of the notice which is sine qua non, an indispensable requisite, for the initiation of assessment or reassessment proceedings where income had escaped assessment. That is not so in the present case. Under sub-section (1) of Section 21 of the Act before its amendment, the assessing authority may, after issuing notice to the dealer and making such inquiry as it may consider necessary, assess or reassess the dealer according to law. Sub-section (2) provided that except as otherwise provided in this Section no order for any assessment year shall be made after the expiry of 4 years from the end of such year. However, after the amendment, a proviso was added to sub-section (2) under which Commissioner of Sales Tax authorises the assessing authority to make assessment or reassessment after the expiration of 8 years from the end of such year notwithstanding that such assessment or reassessment may involve a change of opinion. The proviso came into force w.e.f. February 19, 1991. We do not think that sub-section (2) and the proviso added to it leave anyone in doubt that as one the date when the proviso came into force, the Commissioner of Sales Tax could authorise making of assessment or reassessment after the expiration of 8 years from the end of that particular assessment year. It is immaterial if a period for assessment or reassessment under sub-section (2) of Section 21 before the addition of the said proviso had expired. Here, it is the completion of assessment or reassessment u/s 21 which is to be done before the expiration of 8 years of that particular assessment year. Read as it is, these provisions would mean that the assessment for the year 1985-86 could be re-opened up to March 31, 1994. Authorisation by the Commissioner of Sales Tax and completion of assessment or reassessment under sub-section (1) of Section 21 have to be completed within 8 years of the particular assessment year. Notice to the assessee follows the authorisation by the Commissioner of Sales Tax, its service on the assessee is not a condition precedent to re-open the assessment. It is not disputed that a fiscal statute can have retrospective operation. If we accept the interpretation given by the respondents, the proviso added to sub-section (2) of Section 21 of the Act becomes redundant. Commencement of Act can be different than the operation of the Act though sometimes both may be the same. Proviso now added to sub-section (2) of Section 21 of the Act does not put any embargo on the Commissioner of Sales Tax not to reopen the assessment if period, as prescribed earlier, had expired before the proviso came into operation. One has to see the language of the provision. If it is clear, it has to be given its full effect. To re-assure oneself, one may go into the intention of the legislature in enacting such provision. The date of commencement of the proviso to Section 21(2) of the Act does not control its retrospective operation. Earlier the assessment/ re-assessment could have been completed within four years of that particular assessment year and now by the amendment adding proviso to Section 21(2) of the Act it is eight years. The only safeguard being that it is after satisfaction of the Commissioner of Sales Tax. The proviso is operative from February 19, 1991 and a bare reading of the proviso shows that the operation of this proviso relates and encompasses back to previous eight assessment years. We need not refer to the provisions of Income Tax Act to interpret proviso to Section 21(2) language of which is clear and unambiguous and so is the intention of Legislature. We are, thus, of the view that High Court was not right in quashing the sanction given by the Commissioner of Sales Tax and notices issued by the Assessing Authority in pursuance thereto. | 1 | 6,663 | 2,816 | ### Instruction:
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of such year. However, after the amendment, a proviso was added to sub-section (2) under which Commissioner of Sales Tax authorities the assessing authority to make assessment or reassessment after the are of any help in interpreting the provisions of law now before us. In Y. Narayana Chettys case this Court upheld the contention of the assessee that the notice on the assessee is a condition precedent to the validity of reassessment made u/s 34 of the Income Tax Act, 1922. The Court said that notice prescribed under this section could not be regarded as a mere procedural requirement and that the income tax Officer gets jurisdiction to reassess only when notice is served on the assessee as required. In S.S. Gadgils case this Court said that in considering whether the amending statute applied, the question was one of the interpretation and that the amending provision must be read subject to the rules that in the absence of an express provision or clear implication the legislature does not intend to attribute to the amending provision a greater retrospectivity than expressly mentioned. J.P. Janis case was concerned with the retrospective operation of the new Income Tax Act, 1961 when assessment proceedings under the old Income Tax Act, 1922 had already concluded and period to re-open the assessment under the old Act had become barred. 26. The two decisions in the cases of The Ahmedabad Manufacturing & Calico Printing Co. Ltd. and Biswanath Jhunjhunwalla & Anr. are more closer to the issue involved in the present case before us. They laid down that it is the language of the provision that matters and when meaning is clear, it has to be given full effect. In both these cases this Court held that the proviso which amended the existing provision gave it retrospectivity. When the provision of law is explicit, it has to operate fully and there could not be any limits to its operation. This Court in Biswanath Jhunjhunwalla case said that if the language expressly so states or clearly implies, retrospectivity must be given to the provision. u/s 34 of the Income Tax, 1922, it is the service of the notice which is sine qua non, an indispensable requisite, for the initiation of assessment or reassessment proceedings where income had escaped assessment. That is not so in the present case. Under sub-section (1) of Section 21 of the Act before its amendment, the assessing authority may, after issuing notice to the dealer and making such inquiry as it may consider necessary, assess or reassess the dealer according to law. Sub-section (2) provided that except as otherwise provided in this Section no order for any assessment year shall be made after the expiry of 4 years from the end of such year. However, after the amendment, a proviso was added to sub-section (2) under which Commissioner of Sales Tax authorises the assessing authority to make assessment or reassessment after the expiration of 8 years from the end of such year notwithstanding that such assessment or reassessment may involve a change of opinion. The proviso came into force w.e.f. February 19, 1991. We do not think that sub-section (2) and the proviso added to it leave anyone in doubt that as one the date when the proviso came into force, the Commissioner of Sales Tax could authorise making of assessment or reassessment after the expiration of 8 years from the end of that particular assessment year. It is immaterial if a period for assessment or reassessment under sub-section (2) of Section 21 before the addition of the said proviso had expired. Here, it is the completion of assessment or reassessment u/s 21 which is to be done before the expiration of 8 years of that particular assessment year. Read as it is, these provisions would mean that the assessment for the year 1985-86 could be re-opened up to March 31, 1994. Authorisation by the Commissioner of Sales Tax and completion of assessment or reassessment under sub-section (1) of Section 21 have to be completed within 8 years of the particular assessment year. Notice to the assessee follows the authorisation by the Commissioner of Sales Tax, its service on the assessee is not a condition precedent to re-open the assessment. It is not disputed that a fiscal statute can have retrospective operation. If we accept the interpretation given by the respondents, the proviso added to sub-section (2) of Section 21 of the Act becomes redundant. Commencement of Act can be different than the operation of the Act though sometimes both may be the same. Proviso now added to sub-section (2) of Section 21 of the Act does not put any embargo on the Commissioner of Sales Tax not to reopen the assessment if period, as prescribed earlier, had expired before the proviso came into operation. One has to see the language of the provision. If it is clear, it has to be given its full effect. To re-assure oneself, one may go into the intention of the legislature in enacting such provision. The date of commencement of the proviso to Section 21(2) of the Act does not control its retrospective operation. Earlier the assessment/ re-assessment could have been completed within four years of that particular assessment year and now by the amendment adding proviso to Section 21(2) of the Act it is eight years. The only safeguard being that it is after satisfaction of the Commissioner of Sales Tax. The proviso is operative from February 19, 1991 and a bare reading of the proviso shows that the operation of this proviso relates and encompasses back to previous eight assessment years. We need not refer to the provisions of Income Tax Act to interpret proviso to Section 21(2) language of which is clear and unambiguous and so is the intention of Legislature. We are, thus, of the view that High Court was not right in quashing the sanction given by the Commissioner of Sales Tax and notices issued by the Assessing Authority in pursuance thereto.
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end of such year. However, after the amendment, a proviso was added to sub-section (2) under which Commissioner of Sales Tax authorities the assessing authority to make assessment or reassessment after the are of any help in interpreting the provisions of law now before us. In Y. Narayana Chettys case this Court upheld the contention of the assessee that the notice on the assessee is a condition precedent to the validity of reassessment made u/s 34 of the Income Tax Act, 1922. The Court said that notice prescribed under this section could not be regarded as a mere procedural requirement and that the income tax Officer gets jurisdiction to reassess only when notice is served on the assessee as required. In S.S. Gadgils case this Court said that in considering whether the amending statute applied, the question was one of the interpretation and that the amending provision must be read subject to the rules that in the absence of an express provision or clear implication the legislature does not intend to attribute to the amending provision a greater retrospectivity than expressly mentioned. J.P. Janis case was concerned with the retrospective operation of the new Income Tax Act, 1961 when assessment proceedings under the old Income Tax Act, 1922 had already concluded and period to re-open the assessment under the old Act had become barred.26. The two decisions in the cases of The Ahmedabad Manufacturing & Calico Printing Co. Ltd. and Biswanath Jhunjhunwalla & Anr. are more closer to the issue involved in the present case before us. They laid down that it is the language of the provision that matters and when meaning is clear, it has to be given full effect. In both these cases this Court held that the proviso which amended the existing provision gave it retrospectivity. When the provision of law is explicit, it has to operate fully and there could not be any limits to its operation. This Court in Biswanath Jhunjhunwalla case said that if the language expressly so states or clearly implies, retrospectivity must be given to the provision. u/s 34 of the Income Tax, 1922, it is the service of the notice which is sine qua non, an indispensable requisite, for the initiation of assessment or reassessment proceedings where income had escaped assessment. That is not so in the present case. Under sub-section (1) of Section 21 of the Act before its amendment, the assessing authority may, after issuing notice to the dealer and making such inquiry as it may consider necessary, assess or reassess the dealer according to law. Sub-section (2) provided that except as otherwise provided in this Section no order for any assessment year shall be made after the expiry of 4 years from the end of such year. However, after the amendment, a proviso was added to sub-section (2) under which Commissioner of Sales Tax authorises the assessing authority to make assessment or reassessment after the expiration of 8 years from the end of such year notwithstanding that such assessment or reassessment may involve a change of opinion. The proviso came into force w.e.f. February 19, 1991. We do not think that sub-section (2) and the proviso added to it leave anyone in doubt that as one the date when the proviso came into force, the Commissioner of Sales Tax could authorise making of assessment or reassessment after the expiration of 8 years from the end of that particular assessment year. It is immaterial if a period for assessment or reassessment under sub-section (2) of Section 21 before the addition of the said proviso had expired. Here, it is the completion of assessment or reassessment u/s 21 which is to be done before the expiration of 8 years of that particular assessment year. Read as it is, these provisions would mean that the assessment for the year 1985-86 could be re-opened up to March 31, 1994. Authorisation by the Commissioner of Sales Tax and completion of assessment or reassessment under sub-section (1) of Section 21 have to be completed within 8 years of the particular assessment year. Notice to the assessee follows the authorisation by the Commissioner of Sales Tax, its service on the assessee is not a condition precedent to re-open the assessment. It is not disputed that a fiscal statute can have retrospective operation. If we accept the interpretation given by the respondents, the proviso added to sub-section (2) of Section 21 of the Act becomes redundant. Commencement of Act can be different than the operation of the Act though sometimes both may be the same. Proviso now added to sub-section (2) of Section 21 of the Act does not put any embargo on the Commissioner of Sales Tax not to reopen the assessment if period, as prescribed earlier, had expired before the proviso came into operation. One has to see the language of the provision. If it is clear, it has to be given its full effect. To re-assure oneself, one may go into the intention of the legislature in enacting such provision. The date of commencement of the proviso to Section 21(2) of the Act does not control its retrospective operation. Earlier the assessment/ re-assessment could have been completed within four years of that particular assessment year and now by the amendment adding proviso to Section 21(2) of the Act it is eight years. The only safeguard being that it is after satisfaction of the Commissioner of Sales Tax. The proviso is operative from February 19, 1991 and a bare reading of the proviso shows that the operation of this proviso relates and encompasses back to previous eight assessment years. We need not refer to the provisions of Income Tax Act to interpret proviso to Section 21(2) language of which is clear and unambiguous and so is the intention of Legislature. We are, thus, of the view that High Court was not right in quashing the sanction given by the Commissioner of Sales Tax and notices issued by the Assessing Authority in pursuance thereto.
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Central Dairy Farm Vs. Glindia Ltd. | dated 14.10.1988 in Writ Petition No. 16526 of 1988, the order of the Additional Milk Commissioner as licensing authority was quashed but the statutory power of the state Government to fix price of milk and milk products by notification under Section 15 of the Milk Act was recognised and no fetters were placed on the exercise of such powers by the State. The Second ground urged is that the price fixation by the State in accordance with Section 15 of the Milk Act is a power with which the Court should not interfere because it is essentially within the domain of executive authorities and requires consideration of several relevant factors pertaining to the maintenance of supply of milk. It is submitted that the Government in its counter-affidavit in the High Court has explained in detail the justification for fixing, by notification, the price of cream and panneer.17. We have heard learned counsel appearing for the contesting respondent M/s. Glindia Ltd. We have also perused the relevant part of the judgment of the High Court under appeal and looked into the relevant provisions of the Milk Act. In the present case as the prices of cream and paneer to be supplied by respondent Glindia to the appellant Dairy Farm were fixed under terms mutually settled through negotiations between the parties, the power of price fixation under Section 15 of the Act could not have been invoked by the State Government to nullify the terms and conditions of the agreement on fixation of price reached between the two companies (the appellant and respondent No.1) Section 15 of the Milk act reads as under: "15. Prohibition or regulation of sale and transport and export of milk and milk products.- The State Government may, in the public interest and subject to the provisions of this Act and the rules made thereunder, by notification regulate or fix prices in respect of -(a) the sale or supply of milk, or the manufacture, sale or supply of any milk product in a particular area; and(b) the transport of milk or any milk product from one area in the State to another area in the State or its export to any place outside the state". 18. As the Statement of Objects and Reasons of the Act indicate the legislation was found necessary to develop milk industry in a systematic and organised manner in view of the limited yield of milk in the State. It was found necessary in public interest to regulate and control production, supply and distribution of milk and milk products. To fulfill the objects of the Act the State Government has been empowered under Section 15 of the Act to regulate and fix by notification prices for selling and supply of milk and milk products. The power of State Government to fix prices of milk and milk products by issuance of notification under Sec. 15 of the Milk Act is merely an enabling one and it is not obligatory for State Government in all circumstances to fix the prices. In the instant case, the prices of cream and paneer were fixed through mutual negotiations between authorised representatives of the two companies and with the assistance of the authorities of the state. Such binding terms of agreement reached between the two companies could not be frustrated by statutory intervention of the State by issuance of notification for fixation of prices under Section 15 of the Act. As has been pointed out by the State the notification was intended to apply only to respondent Glindia Ltd. as the supplies of cream and paneer were being made to the appellant Central Fairy Farm by the Glindia Ltd. alone. 19. In the earlier judgment of the High Court (W.P. 14526/1988 decided on 14.10.1988), the power of the State Government to fix prices of milk and milk products under Section 15 of the Act was recognised and it was held that the Additional Milk Commissioner as the licensing authority had no power to interfere in the matter of fixation of price of milk and milk products. The operative part of the judgment in the earlier writ petition however settled the controversy between the parties that the prices of supplies by the respondent company were to be regulated by the directions made by the High Court in the said writ petition. The earlier judgment in the writ petition between the same parties (supra) has attained finality. The written directions issued in the earlier judgment (supra) have been quoted by us above. Those binding directions of the Court could not have been nullified by invoking power of the State of issuing price fixation notification under Section 15 of the Milk Act. The issuance of the impugned notification has rightly been held by the High Court to be an attempt to nullify the directions made by the High Court in its earlier judgment. Direction No.2 in the operative part required determination of price of cream/paneer by agreement and in the absence of any agreement on the basis of price payable by cooperative societies to purchasers with overhead charges. The dispute about over payment was directed to be resolved by committee to be appointed by the two companies comprising officers of two organisations and the high officials designated under the Milk Act. The statutory power under Section 15 of the Milk Act of issuing notification for price fixation could not have been invoked by the State to by pass or commit beach of the directions made by the High Court in the earlier writ petition. The High Court was fully justified in coming to the conclusion that the issuance of notification under Section 15 of the Act was an exercise done for oblique purpose and to somehow get over the judgment of the High Court in the earlier writ petition. The notification was ineffectual to frustrate the agreements and settlements reached on price fixation through mutual negotiations between the authorised representatives of the two companies and the authorised officers of the State.20. Consequently, we | 0[ds]Those binding directions of the Court could not have been nullified by invoking power of the State of issuing price fixation notification under Section 15 of the Milk Act. The issuance of the impugned notification has rightly been held by the High Court to be an attempt to nullify the directions made by the High Court in its earlier judgment. Direction No.2 in the operative part required determination of price of cream/paneer by agreement and in the absence of any agreement on the basis of price payable by cooperative societies to purchasers with overhead charges. The dispute about over payment was directed to be resolved by committee to be appointed by the two companies comprising officers of two organisations and the high officials designated under the Milk Act. The statutory power under Section 15 of the Milk Act of issuing notification for price fixation could not have been invoked by the State to by pass or commit beach of the directions made by the High Court in the earlier writ petition. The High Court was fully justified in coming to the conclusion that the issuance of notification under Section 15 of the Act was an exercise done for oblique purpose and to somehow get over the judgment of the High Court in the earlier writ petition. The notification was ineffectual to frustrate the agreements and settlements reached on price fixation through mutual negotiations between the authorised representatives of the two companies and the authorised officers of the State. | 0 | 3,316 | 259 | ### Instruction:
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dated 14.10.1988 in Writ Petition No. 16526 of 1988, the order of the Additional Milk Commissioner as licensing authority was quashed but the statutory power of the state Government to fix price of milk and milk products by notification under Section 15 of the Milk Act was recognised and no fetters were placed on the exercise of such powers by the State. The Second ground urged is that the price fixation by the State in accordance with Section 15 of the Milk Act is a power with which the Court should not interfere because it is essentially within the domain of executive authorities and requires consideration of several relevant factors pertaining to the maintenance of supply of milk. It is submitted that the Government in its counter-affidavit in the High Court has explained in detail the justification for fixing, by notification, the price of cream and panneer.17. We have heard learned counsel appearing for the contesting respondent M/s. Glindia Ltd. We have also perused the relevant part of the judgment of the High Court under appeal and looked into the relevant provisions of the Milk Act. In the present case as the prices of cream and paneer to be supplied by respondent Glindia to the appellant Dairy Farm were fixed under terms mutually settled through negotiations between the parties, the power of price fixation under Section 15 of the Act could not have been invoked by the State Government to nullify the terms and conditions of the agreement on fixation of price reached between the two companies (the appellant and respondent No.1) Section 15 of the Milk act reads as under: "15. Prohibition or regulation of sale and transport and export of milk and milk products.- The State Government may, in the public interest and subject to the provisions of this Act and the rules made thereunder, by notification regulate or fix prices in respect of -(a) the sale or supply of milk, or the manufacture, sale or supply of any milk product in a particular area; and(b) the transport of milk or any milk product from one area in the State to another area in the State or its export to any place outside the state". 18. As the Statement of Objects and Reasons of the Act indicate the legislation was found necessary to develop milk industry in a systematic and organised manner in view of the limited yield of milk in the State. It was found necessary in public interest to regulate and control production, supply and distribution of milk and milk products. To fulfill the objects of the Act the State Government has been empowered under Section 15 of the Act to regulate and fix by notification prices for selling and supply of milk and milk products. The power of State Government to fix prices of milk and milk products by issuance of notification under Sec. 15 of the Milk Act is merely an enabling one and it is not obligatory for State Government in all circumstances to fix the prices. In the instant case, the prices of cream and paneer were fixed through mutual negotiations between authorised representatives of the two companies and with the assistance of the authorities of the state. Such binding terms of agreement reached between the two companies could not be frustrated by statutory intervention of the State by issuance of notification for fixation of prices under Section 15 of the Act. As has been pointed out by the State the notification was intended to apply only to respondent Glindia Ltd. as the supplies of cream and paneer were being made to the appellant Central Fairy Farm by the Glindia Ltd. alone. 19. In the earlier judgment of the High Court (W.P. 14526/1988 decided on 14.10.1988), the power of the State Government to fix prices of milk and milk products under Section 15 of the Act was recognised and it was held that the Additional Milk Commissioner as the licensing authority had no power to interfere in the matter of fixation of price of milk and milk products. The operative part of the judgment in the earlier writ petition however settled the controversy between the parties that the prices of supplies by the respondent company were to be regulated by the directions made by the High Court in the said writ petition. The earlier judgment in the writ petition between the same parties (supra) has attained finality. The written directions issued in the earlier judgment (supra) have been quoted by us above. Those binding directions of the Court could not have been nullified by invoking power of the State of issuing price fixation notification under Section 15 of the Milk Act. The issuance of the impugned notification has rightly been held by the High Court to be an attempt to nullify the directions made by the High Court in its earlier judgment. Direction No.2 in the operative part required determination of price of cream/paneer by agreement and in the absence of any agreement on the basis of price payable by cooperative societies to purchasers with overhead charges. The dispute about over payment was directed to be resolved by committee to be appointed by the two companies comprising officers of two organisations and the high officials designated under the Milk Act. The statutory power under Section 15 of the Milk Act of issuing notification for price fixation could not have been invoked by the State to by pass or commit beach of the directions made by the High Court in the earlier writ petition. The High Court was fully justified in coming to the conclusion that the issuance of notification under Section 15 of the Act was an exercise done for oblique purpose and to somehow get over the judgment of the High Court in the earlier writ petition. The notification was ineffectual to frustrate the agreements and settlements reached on price fixation through mutual negotiations between the authorised representatives of the two companies and the authorised officers of the State.20. Consequently, we
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Those binding directions of the Court could not have been nullified by invoking power of the State of issuing price fixation notification under Section 15 of the Milk Act. The issuance of the impugned notification has rightly been held by the High Court to be an attempt to nullify the directions made by the High Court in its earlier judgment. Direction No.2 in the operative part required determination of price of cream/paneer by agreement and in the absence of any agreement on the basis of price payable by cooperative societies to purchasers with overhead charges. The dispute about over payment was directed to be resolved by committee to be appointed by the two companies comprising officers of two organisations and the high officials designated under the Milk Act. The statutory power under Section 15 of the Milk Act of issuing notification for price fixation could not have been invoked by the State to by pass or commit beach of the directions made by the High Court in the earlier writ petition. The High Court was fully justified in coming to the conclusion that the issuance of notification under Section 15 of the Act was an exercise done for oblique purpose and to somehow get over the judgment of the High Court in the earlier writ petition. The notification was ineffectual to frustrate the agreements and settlements reached on price fixation through mutual negotiations between the authorised representatives of the two companies and the authorised officers of the State.
|
Naraindas Vs. Government M.P. & Others | had become necessary to make such postponement. It may be that some of the statements made in the Press Note were not correct - for example, the statement that the State Government has formally prescribed the books prepared by the Text Books Corporation in exercise of the powers vested in it under Section 4 (1) of Act 13 of 1973 was incorrect, because barring the order dated 24th May, 1973 which prescribed certain books printed and published by private publishers, there was no other order made by the State Government prescribing text books under S. 4 (1) of Act 13 of 1973. But mere making of incorrect statements in justification of a decision to postpone the reopening of the schools could not possibly have any prejudicial effect on the due course of justice so far as the appeal and the writ petition were concerned. It is quite possible that some of the statements made in the Press Note, If incorrect, might prejudicially affect the business of the appellant by bringing down sales of the text books printed and published by him, but that is very much different from saving that he would be prejudiced in the appeal or the writ petition. What we have to consider for the purpose of determining whether any of these statements constitutes contempt of court is whetherthese statements interfere or have a tendency to interfere with the due course of the appeal or the writ petition by creating prejudice against the appellant which would affect the fair bearing and disposal of the appeal or the writ petition. That effect, we are afraid, the statements in the Press Note complained of by the appellant do not have. It is not possible to hold that any of these statements constitutes contempt of court. 7. The charge of contempt against Y. N. Chaturvedi is also equally unsustainable. The complaint against Y. N. Chaturvedi was that on 19th June, 1973, when the applications for interim injunction and stay were heard by the learned Vacation Judge, he had got wrong statement made by the Advocate General of Madhya Pradesh who appeared for the respondents namely, that all the 29 text books prepared by the text Books Corporation were printed and ready for sale and it was on account of this statement that the learned Vacation Judge had modified the interim order dated 18th May, 1973 by permitting the respondents to put in circulation and sale those 29 text books, but as appearing from the statement of Arjun Singh reported in Hitwad, this statement was incorrect because not only were those 29 text books not ready on 19th June, 1973 but they were not ready even on 2nd July, 1973 and the reopening of the schools had to be postponed by a fortnight to enable the Government to take necessary steps for the preparation, printing and publication of these 29 text books and their timely distribution to the students. The statement got made through the learned Advocate General by Y. N. Chaturvedi was thus a deliberately wrong statement calculated to obtain a relaxation of the interim order dated 18th May, 1973 in favour of the respondents and the making of such a deliberately misleading statement constituted contempt of court. Now there can be no doubt that if a wrong or misleading statement is deliberately and wilfully made by a party to a litigation with a view to obtain a favourable order, it would prejudice or interfere with the due course of the judicial proceeding and thus amount to contempt of court. But here we cannot say that it is established satisfactorily by the appellant that any deliberately wrong or misleading statement was made or got made by Y. N. Chaturvedi with a view to obtain a relaxation of the interim order dated 18th May, 1973. Y. N. Chaturvedi has clearly stated in paragraph 12 of his affidavit dated 10th July, 1973 which has been referred to and relied upon in the affidavit filed by him in reply to the petition for contempt, that "The Advocate-General also submitted that 29 books had been in circulation for several years.It was also said that the respondents be permitted to get the books printed in 7 subjects mentioned in the order dated 24-5-1973. It is correct that the statement was made on behalf of the respondents that these 29 books were ready with them. The appellants counsel on the instructions of the appellant may have made a statement that books were not ready but that statement was not correct." "The advocate General had pointed out in the Court that the Society had got the books prepared and given to printers for printing and then delivery in the month of June. He also said that full arrangements had been made to make available books to students when schools opened in July and also submitted that Society could not go back as the printing under terms of agreement executed with the printers even if it wished to do so." It has also been said by Y. N. Chaturvedi in the affidavit filed by him in reply to the petition for contempt that all arrangement had been made by the Text books Corporation to have 29 text books ready for circulation when the schools reopened on 2nd July, 1973 and the reopening of the schools was not postponed because 29 text books were not ready for sale. This clearly shows that no reliance can be placed on the report of Hitwad as to the statement alleged to have been made by Arjun Singh and Y. N. Chaturvedi cannot be condemned on the basis of such report. In fact Arjun Singh himself has categorically asserted in the affidavit filed by him in reply to the petition for contempt that it was not correct to say that the reopening of the schools was postponed because 29 text books were not ready. There is, therefore, no substance in the charge of contempt against Y. N. Chaturvedi and that charge must fail. | 0[ds]5. The position which, therefore, now obtains is that the Revision Application in which the ex parte interim order was made on 28th March, 1973 and confirmed on 2nd April, 1973 has been disposed of and ex parte order of interim injunction dated 2nd March, 1973 has been vacated. The ex parte order of interim stay made on 28th March, 1973 and confirmed on 2nd April, 1973 has come to an end with the disposal of the Revision Application. The appeal directed against the ex parte order of interim stay made on 28th March, 1973 and confirmed on 2nd April, 1973 has therefore become academic. It does not survive and must accordingly be dismissed with no order as to costs. We have carefully gone through these four statements but we fail to see how they can at all be regarded as prejudicing in any manner whatsoever fair trial and hearing of the appeal and the writ petition. The State Government by the Press Note announced the postponement of the reopening of the schools in Madhya Pradesh from 2nd July, 1973 and made certain statements in the Press Note explaining why it had become necessary to make such postponement. It may be that some of the statements made in the Press Note were not correct - for example, the statement that the State Government has formally prescribed the books prepared by the Text Books Corporation in exercise of the powers vested in it under Section 4 (1) of Act 13 of 1973 was incorrect, because barring the order dated 24th May, 1973 which prescribed certain books printed and published by private publishers, there was no other order made by the State Government prescribing text books under S. 4 (1) of Act 13 of 1973. But mere making of incorrect statements in justification of a decision to postpone the reopening of the schools could not possibly have any prejudicial effect on the due course of justice so far as the appeal and the writ petition were concerned. It is quite possible that some of the statements made in the Press Note, If incorrect, might prejudicially affect the business of the appellant by bringing down sales of the text books printed and published by him, but that is very much different from saving that he would be prejudiced in the appeal or the writ petition. What we have to consider for the purpose of determining whether any of these statements constitutes contempt of court is whetherthese statements interfere or have a tendency to interfere with the due course of the appeal or the writ petition by creating prejudice against the appellant which would affect the fair bearing and disposal of the appeal or the writ petition. That effect, we are afraid, the statements in the Press Note complained of by the appellant do not have. It is not possible to hold that any of these statements constitutes contempt of court7. The charge of contempt against Y. N. Chaturvedi is also equally unsustainable. The complaint against Y. N. Chaturvedi was that on 19th June, 1973, when the applications for interim injunction and stay were heard by the learned Vacation Judge, he had got wrong statement made by the Advocate General of Madhya Pradesh who appeared for the respondents namely, that all the 29 text books prepared by the text Books Corporation were printed and ready for sale and it was on account of this statement that the learned Vacation Judge had modified the interim order dated 18th May, 1973 by permitting the respondents to put in circulation and sale those 29 text books, but as appearing from the statement of Arjun Singh reported in Hitwad, this statement was incorrect because not only were those 29 text books not ready on 19th June, 1973 but they were not ready even on 2nd July, 1973 and the reopening of the schools had to be postponed by a fortnight to enable the Government to take necessary steps for the preparation, printing and publication of these 29 text books and their timely distribution to the students. The statement got made through the learned Advocate General by Y. N. Chaturvedi was thus a deliberately wrong statement calculated to obtain a relaxation of the interim order dated 18th May, 1973 in favour of the respondents and the making of such a deliberately misleading statement constituted contempt of court. Now there can be no doubt that if a wrong or misleading statement is deliberately and wilfully made by a party to a litigation with a view to obtain a favourable order, it would prejudice or interfere with the due course of the judicial proceeding and thus amount to contempt of court. But here we cannot say that it is established satisfactorily by the appellant that any deliberately wrong or misleading statement was made or got made by Y. N. Chaturvedi with a view to obtain a relaxation of the interim order dated 18th May, 1973. Y. N. Chaturvedi has clearly stated in paragraph 12 of his affidavit dated 10th July, 1973 which has been referred to and relied upon in the affidavit filed by him in reply to the petition for contempt, that "The Advocate-General also submitted that 29 books had been in circulation for several years.It was also said that the respondents be permitted to get the books printed in 7 subjects mentioned in the order dated 24-5-1973. It is correct that the statement was made on behalf of the respondents that these 29 books were ready with them. The appellants counsel on the instructions of the appellant may have made a statement that books were not ready but that statement was not correct." "The advocate General had pointed out in the Court that the Society had got the books prepared and given to printers for printing and then delivery in the month of June. He also said that full arrangements had been made to make available books to students when schools opened in July and also submitted that Society could not go back as the printing under terms of agreement executed with the printers even if it wished to do so." It has also been said by Y. N. Chaturvedi in the affidavit filed by him in reply to the petition for contempt that all arrangement had been made by the Text books Corporation to have 29 text books ready for circulation when the schools reopened on 2nd July, 1973 and the reopening of the schools was not postponed because 29 text books were not ready for sale. This clearly shows that no reliance can be placed on the report of Hitwad as to the statement alleged to have been made by Arjun Singh and Y. N. Chaturvedi cannot be condemned on the basis of such report. In fact Arjun Singh himself has categorically asserted in the affidavit filed by him in reply to the petition for contempt that it was not correct to say that the reopening of the schools was postponed because 29 text books were not ready. There is, therefore, no substance in the charge of contempt against Y. N. Chaturvedi and that charge must fail. | 0 | 3,406 | 1,268 | ### 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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had become necessary to make such postponement. It may be that some of the statements made in the Press Note were not correct - for example, the statement that the State Government has formally prescribed the books prepared by the Text Books Corporation in exercise of the powers vested in it under Section 4 (1) of Act 13 of 1973 was incorrect, because barring the order dated 24th May, 1973 which prescribed certain books printed and published by private publishers, there was no other order made by the State Government prescribing text books under S. 4 (1) of Act 13 of 1973. But mere making of incorrect statements in justification of a decision to postpone the reopening of the schools could not possibly have any prejudicial effect on the due course of justice so far as the appeal and the writ petition were concerned. It is quite possible that some of the statements made in the Press Note, If incorrect, might prejudicially affect the business of the appellant by bringing down sales of the text books printed and published by him, but that is very much different from saving that he would be prejudiced in the appeal or the writ petition. What we have to consider for the purpose of determining whether any of these statements constitutes contempt of court is whetherthese statements interfere or have a tendency to interfere with the due course of the appeal or the writ petition by creating prejudice against the appellant which would affect the fair bearing and disposal of the appeal or the writ petition. That effect, we are afraid, the statements in the Press Note complained of by the appellant do not have. It is not possible to hold that any of these statements constitutes contempt of court. 7. The charge of contempt against Y. N. Chaturvedi is also equally unsustainable. The complaint against Y. N. Chaturvedi was that on 19th June, 1973, when the applications for interim injunction and stay were heard by the learned Vacation Judge, he had got wrong statement made by the Advocate General of Madhya Pradesh who appeared for the respondents namely, that all the 29 text books prepared by the text Books Corporation were printed and ready for sale and it was on account of this statement that the learned Vacation Judge had modified the interim order dated 18th May, 1973 by permitting the respondents to put in circulation and sale those 29 text books, but as appearing from the statement of Arjun Singh reported in Hitwad, this statement was incorrect because not only were those 29 text books not ready on 19th June, 1973 but they were not ready even on 2nd July, 1973 and the reopening of the schools had to be postponed by a fortnight to enable the Government to take necessary steps for the preparation, printing and publication of these 29 text books and their timely distribution to the students. The statement got made through the learned Advocate General by Y. N. Chaturvedi was thus a deliberately wrong statement calculated to obtain a relaxation of the interim order dated 18th May, 1973 in favour of the respondents and the making of such a deliberately misleading statement constituted contempt of court. Now there can be no doubt that if a wrong or misleading statement is deliberately and wilfully made by a party to a litigation with a view to obtain a favourable order, it would prejudice or interfere with the due course of the judicial proceeding and thus amount to contempt of court. But here we cannot say that it is established satisfactorily by the appellant that any deliberately wrong or misleading statement was made or got made by Y. N. Chaturvedi with a view to obtain a relaxation of the interim order dated 18th May, 1973. Y. N. Chaturvedi has clearly stated in paragraph 12 of his affidavit dated 10th July, 1973 which has been referred to and relied upon in the affidavit filed by him in reply to the petition for contempt, that "The Advocate-General also submitted that 29 books had been in circulation for several years.It was also said that the respondents be permitted to get the books printed in 7 subjects mentioned in the order dated 24-5-1973. It is correct that the statement was made on behalf of the respondents that these 29 books were ready with them. The appellants counsel on the instructions of the appellant may have made a statement that books were not ready but that statement was not correct." "The advocate General had pointed out in the Court that the Society had got the books prepared and given to printers for printing and then delivery in the month of June. He also said that full arrangements had been made to make available books to students when schools opened in July and also submitted that Society could not go back as the printing under terms of agreement executed with the printers even if it wished to do so." It has also been said by Y. N. Chaturvedi in the affidavit filed by him in reply to the petition for contempt that all arrangement had been made by the Text books Corporation to have 29 text books ready for circulation when the schools reopened on 2nd July, 1973 and the reopening of the schools was not postponed because 29 text books were not ready for sale. This clearly shows that no reliance can be placed on the report of Hitwad as to the statement alleged to have been made by Arjun Singh and Y. N. Chaturvedi cannot be condemned on the basis of such report. In fact Arjun Singh himself has categorically asserted in the affidavit filed by him in reply to the petition for contempt that it was not correct to say that the reopening of the schools was postponed because 29 text books were not ready. There is, therefore, no substance in the charge of contempt against Y. N. Chaturvedi and that charge must fail.
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### Explanation:
it had become necessary to make such postponement. It may be that some of the statements made in the Press Note were not correct - for example, the statement that the State Government has formally prescribed the books prepared by the Text Books Corporation in exercise of the powers vested in it under Section 4 (1) of Act 13 of 1973 was incorrect, because barring the order dated 24th May, 1973 which prescribed certain books printed and published by private publishers, there was no other order made by the State Government prescribing text books under S. 4 (1) of Act 13 of 1973. But mere making of incorrect statements in justification of a decision to postpone the reopening of the schools could not possibly have any prejudicial effect on the due course of justice so far as the appeal and the writ petition were concerned. It is quite possible that some of the statements made in the Press Note, If incorrect, might prejudicially affect the business of the appellant by bringing down sales of the text books printed and published by him, but that is very much different from saving that he would be prejudiced in the appeal or the writ petition. What we have to consider for the purpose of determining whether any of these statements constitutes contempt of court is whetherthese statements interfere or have a tendency to interfere with the due course of the appeal or the writ petition by creating prejudice against the appellant which would affect the fair bearing and disposal of the appeal or the writ petition. That effect, we are afraid, the statements in the Press Note complained of by the appellant do not have. It is not possible to hold that any of these statements constitutes contempt of court7. The charge of contempt against Y. N. Chaturvedi is also equally unsustainable. The complaint against Y. N. Chaturvedi was that on 19th June, 1973, when the applications for interim injunction and stay were heard by the learned Vacation Judge, he had got wrong statement made by the Advocate General of Madhya Pradesh who appeared for the respondents namely, that all the 29 text books prepared by the text Books Corporation were printed and ready for sale and it was on account of this statement that the learned Vacation Judge had modified the interim order dated 18th May, 1973 by permitting the respondents to put in circulation and sale those 29 text books, but as appearing from the statement of Arjun Singh reported in Hitwad, this statement was incorrect because not only were those 29 text books not ready on 19th June, 1973 but they were not ready even on 2nd July, 1973 and the reopening of the schools had to be postponed by a fortnight to enable the Government to take necessary steps for the preparation, printing and publication of these 29 text books and their timely distribution to the students. The statement got made through the learned Advocate General by Y. N. Chaturvedi was thus a deliberately wrong statement calculated to obtain a relaxation of the interim order dated 18th May, 1973 in favour of the respondents and the making of such a deliberately misleading statement constituted contempt of court. Now there can be no doubt that if a wrong or misleading statement is deliberately and wilfully made by a party to a litigation with a view to obtain a favourable order, it would prejudice or interfere with the due course of the judicial proceeding and thus amount to contempt of court. But here we cannot say that it is established satisfactorily by the appellant that any deliberately wrong or misleading statement was made or got made by Y. N. Chaturvedi with a view to obtain a relaxation of the interim order dated 18th May, 1973. Y. N. Chaturvedi has clearly stated in paragraph 12 of his affidavit dated 10th July, 1973 which has been referred to and relied upon in the affidavit filed by him in reply to the petition for contempt, that "The Advocate-General also submitted that 29 books had been in circulation for several years.It was also said that the respondents be permitted to get the books printed in 7 subjects mentioned in the order dated 24-5-1973. It is correct that the statement was made on behalf of the respondents that these 29 books were ready with them. The appellants counsel on the instructions of the appellant may have made a statement that books were not ready but that statement was not correct." "The advocate General had pointed out in the Court that the Society had got the books prepared and given to printers for printing and then delivery in the month of June. He also said that full arrangements had been made to make available books to students when schools opened in July and also submitted that Society could not go back as the printing under terms of agreement executed with the printers even if it wished to do so." It has also been said by Y. N. Chaturvedi in the affidavit filed by him in reply to the petition for contempt that all arrangement had been made by the Text books Corporation to have 29 text books ready for circulation when the schools reopened on 2nd July, 1973 and the reopening of the schools was not postponed because 29 text books were not ready for sale. This clearly shows that no reliance can be placed on the report of Hitwad as to the statement alleged to have been made by Arjun Singh and Y. N. Chaturvedi cannot be condemned on the basis of such report. In fact Arjun Singh himself has categorically asserted in the affidavit filed by him in reply to the petition for contempt that it was not correct to say that the reopening of the schools was postponed because 29 text books were not ready. There is, therefore, no substance in the charge of contempt against Y. N. Chaturvedi and that charge must fail.
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LIFE INSURANCE CORPORATION OF INDIA Vs. MANISH GUPTA | before the issuance of the policy. Hence, it is a solemn obligation of the proposer to truthfully fill out the details required by the insurer in the proposal form on the basis of which the insurer takes a decision in regard to the issuance of the policy. Hence, it was urged that the onus was on the insured to provide material particulars of his health since no medical examination was mandated. In the present case, it has been submitted that, ex facie, there was a breach on the part of the insured in suppressing information pertaining to the fact that he had been suffering from rheumatic heart disease since childhood. Hence, on this ground, the repudiation was sought to be justified. 8. On the other hand, the respondent, who has appeared in person, submits that while the information which has been recorded by the doctor in the column titled past history would be based on the disclosure made by the patient, he had merely informed the doctor that he was suffering from fever and joint pains since childhood. The respondent submitted that apart from this, he was not suffering from any other ailment and, hence, he cannot be faulted for any noting which has been made by the doctor in the course of treatment. 9. We have adverted to the specific disclosure which was required in the proposal form in regard to whether the proposer had suffered or was suffering from cardiovascular disease. Illustrations of cardiovascular disease are given in entry 6(c) of para E of the proposal form. These are: palpitations, heart attack, stroke and chest pain. These are only illustrations. Significantly, the declaration by the proposer is in the following terms: I Munish Gupta hereby declare that I have read the proposal form fully and the same was interpreted to me by the agent and also declare that I have understood the nature of the questions and the importance of disclosing all material information while answering such questions. I hereby declare that the foregoing statements and answers to all questions, including those in the annexures signed by me, have been given by me after fully understanding the questions and the same are true and complete in every particular and that I have not withheld any information and I do hereby agree and declare that these statements and this declaration shall be the basis of the contract of assurance between me and the Life Insurance Corporation and that if any untrue averment be contained therein, the said contract shall be absolutely null and void and all monies which shall have been paid in respect thereof shall stand forfeited to the Corporation... 10. Moreover, non-disclosure of any health event is specifically set out as a ground for excluding the liability of the insurer. The terms of the policy envisage: xii. Fraud If any of the Insured or the Claimant shall make or advance any claim knowing the same to be false or fraudulent as regards amount or otherwise, this Policy shall immediately become void and all claims or payments in respect of all the insured under this Policy shall be forfeited. Non-disclosure of any health event or ailment/condition/sickness/Surgery which occurred prior to the taking of this Policy, whether such condition is relevant or not to the ailment/disease/Surgery for which the Insured is admitted/treated, shall also constitute Fraud. 11. The declaration which was furnished by the proposer constituted the basis for the issuance of the policy. This was particularly so in a case such as the present where no medical examination has been held, for a policy under the NMG category. 12. he discharge card of the Department of Cardiovascular and Thoracic Surgery at Fortis Hospital specifically contains a resume of the history of the patient and reads thus: Resume of History H/O Presenting complaints; PATIENT PRESENTED WITH ONE EPISODE OF COUGH ASSOCIATED WITH FEVER 1 MONTH BACK AFTER WHICH HE STARTED TO HAVE PAIN IN HIS JOINTS (ANKLE & KNEES) ASSOC WITH MUSCLE SPASMS. PATIENT ALSO HAD SYNCOPAL EPISODES SINCE LAST SIX MONTHS. Past History: K/C/O RHEUMATIC HEART DISEASE SINCE CHILDHOOD (emphasis supplied) 13. The past history has been adverted to as a known case of rheumatic heart disease since childhood. Apart from the fact that this information would be recorded on the basis of information divulged by the patient, this aspect of the recording of the past history by Fortis Hospital was never in dispute. The treatment record indicates that the respondent was operated for MVR. The nature of the diagnosis has been reflected as rheumatic heart disease. The hospital treatment form is along the same lines. 14. A contract of insurance involves utmost good faith. In Satwant Kaur Sandhu Vs. New India Assurance Company Ltd. (2009) 8 SCC 316 , this Court has held thus: ...Thus, it needs little emphasis that when an information on a specific aspect is asked for in the proposal form, an assured is under a solemn obligation to make a true and full disclosure of the information on the subject which is within his knowledge. It is not for the proposer to determine whether the information sought for is material for the purpose of the policy or not. Of course, obligation to disclose extends only to facts which are known to the applicant and not to what he ought to have known. The obligation to disclose necessarily depends upon the knowledge one possesses. His opinion of the materiality of that knowledge is of no moment. 15. The consumer fora have made a fundamental error in allowing the claim for reimbursement of medical expenses in the face of the uncontroverted material on record. The documentary material indicates that there was a clear failure on the part of the respondent to disclose that he had suffered from rheumatic heart disease since childhood. The ground for repudiation was in terms of the exclusions contained in the policy. The failure of the insured to disclose the past history of cardiovascular disease was a valid ground for repudiation. | 1[ds]9. We have adverted to the specific disclosure which was required in the proposal form in regard to whether the proposer had suffered or was suffering from cardiovascular disease. Illustrations of cardiovascular disease are given in entry 6(c) of para E of the proposal form. These are: palpitations, heart attack, stroke and chest pain. These are only illustrations. Significantly, the declaration by the proposer is in the following terms:I Munish Gupta hereby declare that I have read the proposal form fully and the same was interpreted to me by the agent and also declare that I have understood the nature of the questions and the importance of disclosing all material information while answering such questions. I hereby declare that the foregoing statements and answers to all questions, including those in the annexures signed by me, have been given by me after fully understanding the questions and the same are true and complete in every particular and that I have not withheld any information and I do hereby agree and declare that these statements and this declaration shall be the basis of the contract of assurance between me and the Life Insurance Corporation and that if any untrue averment be contained therein, the said contract shall be absolutely null and void and all monies which shall have been paid in respect thereof shall stand forfeited to the Corporation10. Moreover, non-disclosure of any health event is specifically set out as a ground for excluding the liability of the insurer.11. The declaration which was furnished by the proposer constituted the basis for the issuance of the policy. This was particularly so in a case such as the present where no medical examination has been held, for a policy under the NMG category13. The past history has been adverted to as a known case of rheumatic heart disease since childhood. Apart from the fact that this information would be recorded on the basis of information divulged by the patient, this aspect of the recording of the past history by Fortis Hospital was never in dispute. The treatment record indicates that the respondent was operated for MVR. The nature of the diagnosis has been reflected as rheumatic heart disease. The hospital treatment form is along the same lines15. The consumer fora have made a fundamental error in allowing the claim for reimbursement of medical expenses in the face of the uncontroverted material on record. The documentary material indicates that there was a clear failure on the part of the respondent to disclose that he had suffered from rheumatic heart disease since childhood. The ground for repudiation was in terms of the exclusions contained in the policy. The failure of the insured to disclose the past history of cardiovascular disease was a valid ground for repudiation. | 1 | 1,713 | 498 | ### 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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before the issuance of the policy. Hence, it is a solemn obligation of the proposer to truthfully fill out the details required by the insurer in the proposal form on the basis of which the insurer takes a decision in regard to the issuance of the policy. Hence, it was urged that the onus was on the insured to provide material particulars of his health since no medical examination was mandated. In the present case, it has been submitted that, ex facie, there was a breach on the part of the insured in suppressing information pertaining to the fact that he had been suffering from rheumatic heart disease since childhood. Hence, on this ground, the repudiation was sought to be justified. 8. On the other hand, the respondent, who has appeared in person, submits that while the information which has been recorded by the doctor in the column titled past history would be based on the disclosure made by the patient, he had merely informed the doctor that he was suffering from fever and joint pains since childhood. The respondent submitted that apart from this, he was not suffering from any other ailment and, hence, he cannot be faulted for any noting which has been made by the doctor in the course of treatment. 9. We have adverted to the specific disclosure which was required in the proposal form in regard to whether the proposer had suffered or was suffering from cardiovascular disease. Illustrations of cardiovascular disease are given in entry 6(c) of para E of the proposal form. These are: palpitations, heart attack, stroke and chest pain. These are only illustrations. Significantly, the declaration by the proposer is in the following terms: I Munish Gupta hereby declare that I have read the proposal form fully and the same was interpreted to me by the agent and also declare that I have understood the nature of the questions and the importance of disclosing all material information while answering such questions. I hereby declare that the foregoing statements and answers to all questions, including those in the annexures signed by me, have been given by me after fully understanding the questions and the same are true and complete in every particular and that I have not withheld any information and I do hereby agree and declare that these statements and this declaration shall be the basis of the contract of assurance between me and the Life Insurance Corporation and that if any untrue averment be contained therein, the said contract shall be absolutely null and void and all monies which shall have been paid in respect thereof shall stand forfeited to the Corporation... 10. Moreover, non-disclosure of any health event is specifically set out as a ground for excluding the liability of the insurer. The terms of the policy envisage: xii. Fraud If any of the Insured or the Claimant shall make or advance any claim knowing the same to be false or fraudulent as regards amount or otherwise, this Policy shall immediately become void and all claims or payments in respect of all the insured under this Policy shall be forfeited. Non-disclosure of any health event or ailment/condition/sickness/Surgery which occurred prior to the taking of this Policy, whether such condition is relevant or not to the ailment/disease/Surgery for which the Insured is admitted/treated, shall also constitute Fraud. 11. The declaration which was furnished by the proposer constituted the basis for the issuance of the policy. This was particularly so in a case such as the present where no medical examination has been held, for a policy under the NMG category. 12. he discharge card of the Department of Cardiovascular and Thoracic Surgery at Fortis Hospital specifically contains a resume of the history of the patient and reads thus: Resume of History H/O Presenting complaints; PATIENT PRESENTED WITH ONE EPISODE OF COUGH ASSOCIATED WITH FEVER 1 MONTH BACK AFTER WHICH HE STARTED TO HAVE PAIN IN HIS JOINTS (ANKLE & KNEES) ASSOC WITH MUSCLE SPASMS. PATIENT ALSO HAD SYNCOPAL EPISODES SINCE LAST SIX MONTHS. Past History: K/C/O RHEUMATIC HEART DISEASE SINCE CHILDHOOD (emphasis supplied) 13. The past history has been adverted to as a known case of rheumatic heart disease since childhood. Apart from the fact that this information would be recorded on the basis of information divulged by the patient, this aspect of the recording of the past history by Fortis Hospital was never in dispute. The treatment record indicates that the respondent was operated for MVR. The nature of the diagnosis has been reflected as rheumatic heart disease. The hospital treatment form is along the same lines. 14. A contract of insurance involves utmost good faith. In Satwant Kaur Sandhu Vs. New India Assurance Company Ltd. (2009) 8 SCC 316 , this Court has held thus: ...Thus, it needs little emphasis that when an information on a specific aspect is asked for in the proposal form, an assured is under a solemn obligation to make a true and full disclosure of the information on the subject which is within his knowledge. It is not for the proposer to determine whether the information sought for is material for the purpose of the policy or not. Of course, obligation to disclose extends only to facts which are known to the applicant and not to what he ought to have known. The obligation to disclose necessarily depends upon the knowledge one possesses. His opinion of the materiality of that knowledge is of no moment. 15. The consumer fora have made a fundamental error in allowing the claim for reimbursement of medical expenses in the face of the uncontroverted material on record. The documentary material indicates that there was a clear failure on the part of the respondent to disclose that he had suffered from rheumatic heart disease since childhood. The ground for repudiation was in terms of the exclusions contained in the policy. The failure of the insured to disclose the past history of cardiovascular disease was a valid ground for repudiation.
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### Explanation:
9. We have adverted to the specific disclosure which was required in the proposal form in regard to whether the proposer had suffered or was suffering from cardiovascular disease. Illustrations of cardiovascular disease are given in entry 6(c) of para E of the proposal form. These are: palpitations, heart attack, stroke and chest pain. These are only illustrations. Significantly, the declaration by the proposer is in the following terms:I Munish Gupta hereby declare that I have read the proposal form fully and the same was interpreted to me by the agent and also declare that I have understood the nature of the questions and the importance of disclosing all material information while answering such questions. I hereby declare that the foregoing statements and answers to all questions, including those in the annexures signed by me, have been given by me after fully understanding the questions and the same are true and complete in every particular and that I have not withheld any information and I do hereby agree and declare that these statements and this declaration shall be the basis of the contract of assurance between me and the Life Insurance Corporation and that if any untrue averment be contained therein, the said contract shall be absolutely null and void and all monies which shall have been paid in respect thereof shall stand forfeited to the Corporation10. Moreover, non-disclosure of any health event is specifically set out as a ground for excluding the liability of the insurer.11. The declaration which was furnished by the proposer constituted the basis for the issuance of the policy. This was particularly so in a case such as the present where no medical examination has been held, for a policy under the NMG category13. The past history has been adverted to as a known case of rheumatic heart disease since childhood. Apart from the fact that this information would be recorded on the basis of information divulged by the patient, this aspect of the recording of the past history by Fortis Hospital was never in dispute. The treatment record indicates that the respondent was operated for MVR. The nature of the diagnosis has been reflected as rheumatic heart disease. The hospital treatment form is along the same lines15. The consumer fora have made a fundamental error in allowing the claim for reimbursement of medical expenses in the face of the uncontroverted material on record. The documentary material indicates that there was a clear failure on the part of the respondent to disclose that he had suffered from rheumatic heart disease since childhood. The ground for repudiation was in terms of the exclusions contained in the policy. The failure of the insured to disclose the past history of cardiovascular disease was a valid ground for repudiation.
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Jawaharlal Nehru University Vs. B.S. Narwal | be heard may be implied. But if the assessment is confined to academic performance, a right to be heard may not be so implied. Of course, if there are allegations of bias or malafides different considerations might prevail, but in the absense of allegations of bias or malafides we do not think that the declaration by an academic body that a students academic performance is unsatisfactory, is liable to be questioned in a Court on the ground that the student was not give n an opportunity of being heard. Large and expanding, perhaps rightly, as the field of natural justice and fail dealing is, necessary and wholesome as hearing an affected partly even by academic bodies is, there are limits to attempt at unnatural extensions of the doctrine of audi alteram partem. Without granting absolutism to academic authorities even in academic matters, we think this case hardly calls for judicial intervention.9. The learned Counsel for the respondent relied on Regine v. Aston University Senate(2) to contend that the examining body of the University was bound to give an opportunity to a student before requiring him to withdraw from the University consequent on his failure in the examination. Admittedly, i n that case, the examiners took into consideration a "wide range of extraneous factors some of which their very nature, for example, personal and family problems might only have been known to the students themselves". Therefore. Donaldso n J., observed that in common fairness the students should have been given an opportunity. Even so, Lord Parker C. J., did not appear to be convinced about the correctness of Donaldson Js view and in Herring v. Templeman &Ors. (supra ), the Court of Appeal expressed the view that Donaldson Js opinion required reconsideration on some suitable future occasion.10. From the earlier narration of facts it would be seen that the respondent had not cleared any of the core courses in the first three semesters. If a candidate for the M.A. degree in a certain discipline fails to clear any single core course in that discipline in the first three semesters, surely, no one can complain that the academic body which has declared the academic performance of the candidate as unsatisfactory has acted arbitrarily in so declaring. The complaint of the respondent, however, was that he was unable to clear the core courses in the first two semesters because the University authorities failed to provide teachers to take classes and this was a factor which the authorities of the University had failed to consider and the authorities must, therefore, be held not to have applied their minds. It appears that in the very first semester the respondent joined the University late and missed several classes. The result was that while the rest of the students had made sufficient progress in Russian language the respondent who had yet to learn the alphabet could not straightaway join the rest of the students attending the core courses. The therefore, had to attend other classes in Russian language where Russian language was taught not as a core subject but as a tool or optional subject. According, to the respondent there was none to teach Russian language to his group between October 6. 1974 and December 6, 1974. Again, in the second semester, though there were Russian classes from 10th February to 30th March, 1975, the re were no arrangements to teach Russian language to his group after 30th March. The High Court appeared to attach great importance to the failure of the University to expressly deny the respondents allegation that there were no teaching facilities between October 6 and December 6. 1974 and again between 10th February and 30th March, 1975. True the University did not in express terms deny the allegations. But the University did mention the following facts in their counter affidavit. In paragraph 5 it was said"He joined the first semester on 22nd of August 1974 although it started from 9th August 1974. So much so he was to be grouped together with students who had offered Russian as a non-core subject and for whom the Russian classes happened to be starting from 1st September. Again, from 8th October 1975 to 20th December 1975, he was not regular in attendance. How could the respondent University afford a special curriculum for the sake of a particular student who does not avail of the regular course of teaching provided by the University to a class of students? It was no fault of the University if the petitioner could not attend the classes when they were conducted, and the petitioner should be blamed for his irregular attendance".11. Again in paragraph 9 it was said:"In reply to paragraph 9, I say that the petitioner did not join the course on 9th August 1974 when the classes for Russian as a core subject commenced. When the Petitioner came on 22nd August 1974 to join the course, the students who had offered Russian as a co re subject and started their classes on 9th August, had made substantial progress. The Petitioner, being a beginner in Russian language, could not be accommodated in any of those groups. He had, therefore, to be grouped tog ether with students who had offered Russian classes happened to be starting from September 1."12. These statements show that the University did run the necessary classes for the core courses but the Respondent was unable to take advantage of them on account of his insufficient knowledge of Russian, for which reason he had to attend classes for optional courses instead of classes for core courses. The University naturally could not run a special programme for an individual student. These statements went unnoticed by the High Court. We are, therefore, of the view that the finding of the High Court that the authorities of the University were oblivious of the circumstance that the University itself had failed to provide teaching facilities in Russian and therefore, must be considered not to have applied their minds is without factual foundation. | 1[ds]The case is merely one of assessment of the academic performance of a student which the prescribed authorities of the University are best qualified and the Courts perhaps, are least qualified to judge. Nor can there be any question of any opportunity to be heard being given. One does not hear of a claim to be heard when a candidate fails to qualify at an aptitude or intelligence test, written or oral. When duly qualified and competent academic authorities examine and assess the work of a student over a period of time and declare his work to be unsatisfactory we are unable to see how any question of a right to be heard can arise. The duty of an academic body in such a case is to form an unbiased assessment of the students standard of work based on the entirety of his record and potential(1). That is their function. The very nature of the function of academic adjudication (if the use of the word adjudication is permissible in the context) appears to us to negative any right to an opportunity to be heard. If the assessment by the academic body permitted the consideration of non-academic circumstances also, a right to be heard may be implied. But if the assessment is confined to academic performance, a right to be heard may not be so implied. Of course, if there are allegations of bias or malafides different considerations might prevail, but in the absense of allegations of bias or malafides we do not think that the declaration by an academic body that a students academic performance is unsatisfactory, is liable to be questioned in a Court on the ground that the student was not give n an opportunity of being heard. Large and expanding, perhaps rightly, as the field of natural justice and fail dealing is, necessary and wholesome as hearing an affected partly even by academic bodies is, there are limits to attempt at unnatural extensions of the doctrine of audi alteram partem. Without granting absolutism to academic authorities even in academic matters, we think this case hardly calls for judicialthe earlier narration of facts it would be seen that the respondent had not cleared any of the core courses in the first three semesters. If a candidate for the M.A. degree in a certain discipline fails to clear any single core course in that discipline in the first three semesters, surely, no one can complain that the academic body which has declared the academic performance of the candidate as unsatisfactory has acted arbitrarily in so declaring. The complaint of the respondent, however, was that he was unable to clear the core courses in the first two semesters because the University authorities failed to provide teachers to take classes and this was a factor which the authorities of the University had failed to consider and the authorities must, therefore, be held not to have applied their minds. It appears that in the very first semester the respondent joined the University late and missed several classes. The result was that while the rest of the students had made sufficient progress in Russian language the respondent who had yet to learn the alphabet could not straightaway join the rest of the students attending the core courses. The therefore, had to attend other classes in Russian language where Russian language was taught not as a core subject but as a tool or optionalHigh Court appeared to attach great importance to the failure of the University to expressly deny the respondents allegation that there were no teaching facilities between October 6 and December 6. 1974 and again between 10th February and 30th March, 1975. True the University did not in express terms deny the allegations. But the University did mention the following facts in their counter affidavit.statements show that the University did run the necessary classes for the core courses but the Respondent was unable to take advantage of them on account of his insufficient knowledge of Russian, for which reason he had to attend classes for optional courses instead of classes for core courses. The University naturally could not run a special programme for an individual student. These statements went unnoticed by the High Court. We are, therefore, of the view that the finding of the High Court that the authorities of the University were oblivious of the circumstance that the University itself had failed to provide teaching facilities in Russian and therefore, must be considered not to have applied their minds is without factual foundation. | 1 | 3,158 | 810 | ### Instruction:
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be heard may be implied. But if the assessment is confined to academic performance, a right to be heard may not be so implied. Of course, if there are allegations of bias or malafides different considerations might prevail, but in the absense of allegations of bias or malafides we do not think that the declaration by an academic body that a students academic performance is unsatisfactory, is liable to be questioned in a Court on the ground that the student was not give n an opportunity of being heard. Large and expanding, perhaps rightly, as the field of natural justice and fail dealing is, necessary and wholesome as hearing an affected partly even by academic bodies is, there are limits to attempt at unnatural extensions of the doctrine of audi alteram partem. Without granting absolutism to academic authorities even in academic matters, we think this case hardly calls for judicial intervention.9. The learned Counsel for the respondent relied on Regine v. Aston University Senate(2) to contend that the examining body of the University was bound to give an opportunity to a student before requiring him to withdraw from the University consequent on his failure in the examination. Admittedly, i n that case, the examiners took into consideration a "wide range of extraneous factors some of which their very nature, for example, personal and family problems might only have been known to the students themselves". Therefore. Donaldso n J., observed that in common fairness the students should have been given an opportunity. Even so, Lord Parker C. J., did not appear to be convinced about the correctness of Donaldson Js view and in Herring v. Templeman &Ors. (supra ), the Court of Appeal expressed the view that Donaldson Js opinion required reconsideration on some suitable future occasion.10. From the earlier narration of facts it would be seen that the respondent had not cleared any of the core courses in the first three semesters. If a candidate for the M.A. degree in a certain discipline fails to clear any single core course in that discipline in the first three semesters, surely, no one can complain that the academic body which has declared the academic performance of the candidate as unsatisfactory has acted arbitrarily in so declaring. The complaint of the respondent, however, was that he was unable to clear the core courses in the first two semesters because the University authorities failed to provide teachers to take classes and this was a factor which the authorities of the University had failed to consider and the authorities must, therefore, be held not to have applied their minds. It appears that in the very first semester the respondent joined the University late and missed several classes. The result was that while the rest of the students had made sufficient progress in Russian language the respondent who had yet to learn the alphabet could not straightaway join the rest of the students attending the core courses. The therefore, had to attend other classes in Russian language where Russian language was taught not as a core subject but as a tool or optional subject. According, to the respondent there was none to teach Russian language to his group between October 6. 1974 and December 6, 1974. Again, in the second semester, though there were Russian classes from 10th February to 30th March, 1975, the re were no arrangements to teach Russian language to his group after 30th March. The High Court appeared to attach great importance to the failure of the University to expressly deny the respondents allegation that there were no teaching facilities between October 6 and December 6. 1974 and again between 10th February and 30th March, 1975. True the University did not in express terms deny the allegations. But the University did mention the following facts in their counter affidavit. In paragraph 5 it was said"He joined the first semester on 22nd of August 1974 although it started from 9th August 1974. So much so he was to be grouped together with students who had offered Russian as a non-core subject and for whom the Russian classes happened to be starting from 1st September. Again, from 8th October 1975 to 20th December 1975, he was not regular in attendance. How could the respondent University afford a special curriculum for the sake of a particular student who does not avail of the regular course of teaching provided by the University to a class of students? It was no fault of the University if the petitioner could not attend the classes when they were conducted, and the petitioner should be blamed for his irregular attendance".11. Again in paragraph 9 it was said:"In reply to paragraph 9, I say that the petitioner did not join the course on 9th August 1974 when the classes for Russian as a core subject commenced. When the Petitioner came on 22nd August 1974 to join the course, the students who had offered Russian as a co re subject and started their classes on 9th August, had made substantial progress. The Petitioner, being a beginner in Russian language, could not be accommodated in any of those groups. He had, therefore, to be grouped tog ether with students who had offered Russian classes happened to be starting from September 1."12. These statements show that the University did run the necessary classes for the core courses but the Respondent was unable to take advantage of them on account of his insufficient knowledge of Russian, for which reason he had to attend classes for optional courses instead of classes for core courses. The University naturally could not run a special programme for an individual student. These statements went unnoticed by the High Court. We are, therefore, of the view that the finding of the High Court that the authorities of the University were oblivious of the circumstance that the University itself had failed to provide teaching facilities in Russian and therefore, must be considered not to have applied their minds is without factual foundation.
### Response:
1
### Explanation:
The case is merely one of assessment of the academic performance of a student which the prescribed authorities of the University are best qualified and the Courts perhaps, are least qualified to judge. Nor can there be any question of any opportunity to be heard being given. One does not hear of a claim to be heard when a candidate fails to qualify at an aptitude or intelligence test, written or oral. When duly qualified and competent academic authorities examine and assess the work of a student over a period of time and declare his work to be unsatisfactory we are unable to see how any question of a right to be heard can arise. The duty of an academic body in such a case is to form an unbiased assessment of the students standard of work based on the entirety of his record and potential(1). That is their function. The very nature of the function of academic adjudication (if the use of the word adjudication is permissible in the context) appears to us to negative any right to an opportunity to be heard. If the assessment by the academic body permitted the consideration of non-academic circumstances also, a right to be heard may be implied. But if the assessment is confined to academic performance, a right to be heard may not be so implied. Of course, if there are allegations of bias or malafides different considerations might prevail, but in the absense of allegations of bias or malafides we do not think that the declaration by an academic body that a students academic performance is unsatisfactory, is liable to be questioned in a Court on the ground that the student was not give n an opportunity of being heard. Large and expanding, perhaps rightly, as the field of natural justice and fail dealing is, necessary and wholesome as hearing an affected partly even by academic bodies is, there are limits to attempt at unnatural extensions of the doctrine of audi alteram partem. Without granting absolutism to academic authorities even in academic matters, we think this case hardly calls for judicialthe earlier narration of facts it would be seen that the respondent had not cleared any of the core courses in the first three semesters. If a candidate for the M.A. degree in a certain discipline fails to clear any single core course in that discipline in the first three semesters, surely, no one can complain that the academic body which has declared the academic performance of the candidate as unsatisfactory has acted arbitrarily in so declaring. The complaint of the respondent, however, was that he was unable to clear the core courses in the first two semesters because the University authorities failed to provide teachers to take classes and this was a factor which the authorities of the University had failed to consider and the authorities must, therefore, be held not to have applied their minds. It appears that in the very first semester the respondent joined the University late and missed several classes. The result was that while the rest of the students had made sufficient progress in Russian language the respondent who had yet to learn the alphabet could not straightaway join the rest of the students attending the core courses. The therefore, had to attend other classes in Russian language where Russian language was taught not as a core subject but as a tool or optionalHigh Court appeared to attach great importance to the failure of the University to expressly deny the respondents allegation that there were no teaching facilities between October 6 and December 6. 1974 and again between 10th February and 30th March, 1975. True the University did not in express terms deny the allegations. But the University did mention the following facts in their counter affidavit.statements show that the University did run the necessary classes for the core courses but the Respondent was unable to take advantage of them on account of his insufficient knowledge of Russian, for which reason he had to attend classes for optional courses instead of classes for core courses. The University naturally could not run a special programme for an individual student. These statements went unnoticed by the High Court. We are, therefore, of the view that the finding of the High Court that the authorities of the University were oblivious of the circumstance that the University itself had failed to provide teaching facilities in Russian and therefore, must be considered not to have applied their minds is without factual foundation.
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Rameshkumar Agarwal Vs. Rajmala Exports P.Ltd | not the evidence by which they are to be proved. Sub-rule (2) of Rule 2 makes it clear that every pleading shall be divided into paragraphs, numbered consecutively, each allegation being, so far as is convenient, contained in a separate paragraph. Sub-rule (3) of Rule 2 mandates that dates, sums and numbers shall be expressed in a pleading in figures as well as in words. 7) Order VI Rule 17 of the Code enables the parties to make amendment of the plaint which reads as under; 17. Amendment of pleadings - The Court may at any stage of the proceedings allow either party to alter or amend his pleadings in such manner and on such terms as may be just, and all such amendments shall be made as may be necessary for the purpose of determining the real questions in controversy between the parties: Provided that no application for amendment shall be allowed after the trial has commenced, unless the Court comes to the conclusion that in spite of due diligence, the party could not have raised the matter before the commencement of trial. 8) Order I Rule 1 of the Code speaks about who may be joined in a suit as plaintiffs. Mr. Shekhar Naphade, learned senior counsel for the appellant, after taking us through the agreement for sale dated 02.02.2006, pointed out that the parties to the said agreement being only Rameshkumar Agarwal, the present appellant and Rajmala Exports Pvt. Ltd., respondent No.1 herein and the other proposed parties, particularly, Plaintiff Nos. 2 & 3 have nothing to do with the contract, and according to him, the Courts below have committed an error in entertaining the amendment application. In the light of the said contention, we have carefully perused the agreement for sale dated 02.02.2006, parties to the same and the relevant provisions from the Code. We have already pointed out that the learned single Judge himself has agreed with the objection as to proposed defendant Nos. 3-5 and found that they are not necessary parties to the suit, however, inasmuch as the main object of the amendment sought for by the plaintiff is to explain how the money was paid, permitted the other reliefs including impleadment of plaintiff Nos. 2 & 3 as parties to the suit. 9) In Rajkumar Gurawara (Dead) Through L.Rs vs. S.K. Sarwagi & Company Private Limited & Anr. (2008) 14 SCC 364 , this Court considered the scope of amendment of pleadings before or after the commencement of the trial. In paragraph 18, this Court held as under:- ...........It is settled law that the grant of application for amendment be subject to certain conditions, namely, (i) when the nature of it is changed by permitting amendment; (ii) when the amendment would result in introducing new cause of action and intends to prejudice the other party; (iii) when allowing amendment application defeats the law of limitation......... 10) In Revajeetu Builders & Developers vs. Narayanaswamy & Sons & Ors. (2009) 10 SCC 84 , this Court once again considered the scope of amendment of pleadings. In paragraph 63, it concluded as follows: Factors to be taken into consideration while dealing with applications for amendments 63. On critically analysing both the English and Indian cases, some basic principles emerge which ought to be taken into consideration while allowing or rejecting the application for amendment: (1) whether the amendment sought is imperative for proper and effective adjudication of the case; (2) whether the application for amendment is bona fide or mala fide; (3) the amendment should not cause such prejudice to the other side which cannot be compensated adequately in terms of money; (4) refusing amendment would in fact lead to injustice or lead to multiple litigation; (5) whether the proposed amendment constitutionally or fundamentally changes the nature and character of the case; and (6) as a general rule, the court should decline amendments if a fresh suit on the amended claims would be barred by limitation on the date of application. These are some of the important factors which may be kept in mind while dealing with application filed under Order 6 Rule 17. These are only illustrative and not exhaustive. 11) It is clear that while deciding the application for amendment ordinarily the Court must not refuse bona fide, legitimate, honest and necessary amendments and should never permit mala fide and dishonest amendments. The purpose and object of Order VI Rule 17 of the Code is to allow either party to alter or amend his pleadings in such manner and on such terms as may be just. Amendment cannot be claimed as a matter of right and under all circumstances, but the Courts while deciding such prayers should not adopt a hyper-technical approach. Liberal approach should be the general rule particularly, in cases where the other side can be compensated with costs. Normally, amendments are allowed in the pleadings to avoid multiplicity of litigations. 12) In view of the fact that the amendment application came to be filed immediately after filing of the suit (suit came to be filed in 2007 and the amendment application was in 2008) i.e. before commencement of the trial and taking note of the fact that the learned single Judge confined the relief only to a certain extent and also that in the proposed amendment the plaintiff wants to explain how the money was paid, though necessary averments in the form of foundation have already been laid in the original plaint, we hold that by this process the plaintiff is not altering the cause of action and in any way prejudice defendants. 13) By the present amendment, the plaintiff furnished more details about the mode of payment of consideration. Accordingly, we hold that there is no inconsistency and the amendment sought for is not barred by limitation. We fully agree with the conclusion arrived at by the learned single Judge and the Division Bench of the High Court. 14) In the light of what we have stated above, we | 0[ds]11) It is clear that while deciding the application for amendment ordinarily the Court must not refuse bona fide, legitimate, honest and necessary amendments and should never permit mala fide and dishonest amendments. The purpose and object of Order VI Rule 17 of the Code is to allow either party to alter or amend his pleadings in such manner and on such terms as may be just. Amendment cannot be claimed as a matter of right and under all circumstances, but the Courts while deciding such prayers should not adopt a hyper-technical approach. Liberal approach should be the general rule particularly, in cases where the other side can be compensated with costs. Normally, amendments are allowed in the pleadings to avoid multiplicity of litigations12) In view of the fact that the amendment application came to be filed immediately after filing of the suit (suit came to be filed in 2007 and the amendment application was in 2008) i.e. before commencement of the trial and taking note of the fact that the learned single Judge confined the relief only to a certain extent and also that in the proposed amendment the plaintiff wants to explain how the money was paid, though necessary averments in the form of foundation have already been laid in the original plaint, we hold that by this process the plaintiff is not altering the cause of action and in any way prejudice defendants | 0 | 2,404 | 257 | ### Instruction:
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not the evidence by which they are to be proved. Sub-rule (2) of Rule 2 makes it clear that every pleading shall be divided into paragraphs, numbered consecutively, each allegation being, so far as is convenient, contained in a separate paragraph. Sub-rule (3) of Rule 2 mandates that dates, sums and numbers shall be expressed in a pleading in figures as well as in words. 7) Order VI Rule 17 of the Code enables the parties to make amendment of the plaint which reads as under; 17. Amendment of pleadings - The Court may at any stage of the proceedings allow either party to alter or amend his pleadings in such manner and on such terms as may be just, and all such amendments shall be made as may be necessary for the purpose of determining the real questions in controversy between the parties: Provided that no application for amendment shall be allowed after the trial has commenced, unless the Court comes to the conclusion that in spite of due diligence, the party could not have raised the matter before the commencement of trial. 8) Order I Rule 1 of the Code speaks about who may be joined in a suit as plaintiffs. Mr. Shekhar Naphade, learned senior counsel for the appellant, after taking us through the agreement for sale dated 02.02.2006, pointed out that the parties to the said agreement being only Rameshkumar Agarwal, the present appellant and Rajmala Exports Pvt. Ltd., respondent No.1 herein and the other proposed parties, particularly, Plaintiff Nos. 2 & 3 have nothing to do with the contract, and according to him, the Courts below have committed an error in entertaining the amendment application. In the light of the said contention, we have carefully perused the agreement for sale dated 02.02.2006, parties to the same and the relevant provisions from the Code. We have already pointed out that the learned single Judge himself has agreed with the objection as to proposed defendant Nos. 3-5 and found that they are not necessary parties to the suit, however, inasmuch as the main object of the amendment sought for by the plaintiff is to explain how the money was paid, permitted the other reliefs including impleadment of plaintiff Nos. 2 & 3 as parties to the suit. 9) In Rajkumar Gurawara (Dead) Through L.Rs vs. S.K. Sarwagi & Company Private Limited & Anr. (2008) 14 SCC 364 , this Court considered the scope of amendment of pleadings before or after the commencement of the trial. In paragraph 18, this Court held as under:- ...........It is settled law that the grant of application for amendment be subject to certain conditions, namely, (i) when the nature of it is changed by permitting amendment; (ii) when the amendment would result in introducing new cause of action and intends to prejudice the other party; (iii) when allowing amendment application defeats the law of limitation......... 10) In Revajeetu Builders & Developers vs. Narayanaswamy & Sons & Ors. (2009) 10 SCC 84 , this Court once again considered the scope of amendment of pleadings. In paragraph 63, it concluded as follows: Factors to be taken into consideration while dealing with applications for amendments 63. On critically analysing both the English and Indian cases, some basic principles emerge which ought to be taken into consideration while allowing or rejecting the application for amendment: (1) whether the amendment sought is imperative for proper and effective adjudication of the case; (2) whether the application for amendment is bona fide or mala fide; (3) the amendment should not cause such prejudice to the other side which cannot be compensated adequately in terms of money; (4) refusing amendment would in fact lead to injustice or lead to multiple litigation; (5) whether the proposed amendment constitutionally or fundamentally changes the nature and character of the case; and (6) as a general rule, the court should decline amendments if a fresh suit on the amended claims would be barred by limitation on the date of application. These are some of the important factors which may be kept in mind while dealing with application filed under Order 6 Rule 17. These are only illustrative and not exhaustive. 11) It is clear that while deciding the application for amendment ordinarily the Court must not refuse bona fide, legitimate, honest and necessary amendments and should never permit mala fide and dishonest amendments. The purpose and object of Order VI Rule 17 of the Code is to allow either party to alter or amend his pleadings in such manner and on such terms as may be just. Amendment cannot be claimed as a matter of right and under all circumstances, but the Courts while deciding such prayers should not adopt a hyper-technical approach. Liberal approach should be the general rule particularly, in cases where the other side can be compensated with costs. Normally, amendments are allowed in the pleadings to avoid multiplicity of litigations. 12) In view of the fact that the amendment application came to be filed immediately after filing of the suit (suit came to be filed in 2007 and the amendment application was in 2008) i.e. before commencement of the trial and taking note of the fact that the learned single Judge confined the relief only to a certain extent and also that in the proposed amendment the plaintiff wants to explain how the money was paid, though necessary averments in the form of foundation have already been laid in the original plaint, we hold that by this process the plaintiff is not altering the cause of action and in any way prejudice defendants. 13) By the present amendment, the plaintiff furnished more details about the mode of payment of consideration. Accordingly, we hold that there is no inconsistency and the amendment sought for is not barred by limitation. We fully agree with the conclusion arrived at by the learned single Judge and the Division Bench of the High Court. 14) In the light of what we have stated above, we
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11) It is clear that while deciding the application for amendment ordinarily the Court must not refuse bona fide, legitimate, honest and necessary amendments and should never permit mala fide and dishonest amendments. The purpose and object of Order VI Rule 17 of the Code is to allow either party to alter or amend his pleadings in such manner and on such terms as may be just. Amendment cannot be claimed as a matter of right and under all circumstances, but the Courts while deciding such prayers should not adopt a hyper-technical approach. Liberal approach should be the general rule particularly, in cases where the other side can be compensated with costs. Normally, amendments are allowed in the pleadings to avoid multiplicity of litigations12) In view of the fact that the amendment application came to be filed immediately after filing of the suit (suit came to be filed in 2007 and the amendment application was in 2008) i.e. before commencement of the trial and taking note of the fact that the learned single Judge confined the relief only to a certain extent and also that in the proposed amendment the plaintiff wants to explain how the money was paid, though necessary averments in the form of foundation have already been laid in the original plaint, we hold that by this process the plaintiff is not altering the cause of action and in any way prejudice defendants
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R. Venkataswami Naidu And Another Vs. Narasram Naraindas | and one scope; a process resulting in more than one interpretation and scope is clearly erroneous. 7. Now when deciding that the covenant did not affect the right of tenants under S. 3 and was, therefore, valid, the learned Judges did not say that a tenant who built in breach of it was not a tenant as contemplated by Section 3 and was not entitled to its benefits; in fact they expressly took a contrary view. They said, and in our view rightly, there is no express provision in the Act, limiting the operation of S. 3 ....... to the tenants who were authorised by the terms of the lease to put up a building. Prima facie, therefore, the term tenant might not exclude one who puts up a superstructure on the land in breach of a covenant not to build. They stated that this was the view to be gathered from a consideration of the entire Act. But clearly there was nothing else they could legitimately consider for interpreting S. 3. It would, therefore, appear that the words prima facie with which they qualified their observation were inapposite. In effect then the learned Judges said this: The contract was valid as it did not affect the right under S. 3 of any tenant as defined in the Act and since the contract was valid, a tenant who had built in breach of it was not entitled to any right under S. 3. This is a wholly untenable proposition. 8. We think that the word tenant in S. 3 must be understood only in the sense that that word is defined in the Act. We repeat that there is no reason for saying that the word tenant in S. 3 does not include all tenants as defined in the Act. None has been shown apart from that given by the learned Judges which we think is ill founded. Therefore, the appellants are tenants as contemplated by S. 3. Now the covenant says that the tenant shall not build. Either that affects the right of the tenants to claim compensation for the buildings constructed in breach of it at the termination of the lease or it does not. If it does not, then no further question arises; there will then no further question arises; there will then be nothing purporting to disentitle the tenants of their rights under S. 3 and the case will be the same as where there is no covenant at all. If such is the case then, as we have said earlier, there is no dispute that the tenants are entitled to their rights under Ss. 3 and 9. If, however, the covenant not to build affects the right to claim compensation under S. 3, such a covenant would be of no effect, for under S. 12 nothing in any contract shall take away a tenants rights under the Act. The case will then also be the same as if there was no covenant at all.That is why we think that the covenant not to build does not affect the question in hand. The tenants must be held entitled to their rights under Ss. 3 and 9 in spite of the covenant not to build and a breach of it by them. 9. Before Anantanarayanan, J. the argument for the lessor was somewhat different. It was said that S. 3 had to be read in harmony with the general law, that is. S. 108 (h) of the Transfer of Property Act, which gave the tenant a right to build when the lease did not prohibit building and, therefore, the erection under S. 3 must be one permitted by law. The learned Judge rejected this contention, in our opinion rightly, on the ground that S. 3 and S.9 contained no words justifying it and under S. 12 no contract could be made affecting the Sections earlier mentioned. He also pointed out that S. 13 of the Act specifically provided that the Transfer of Property Act must be deemed to have been repealed to the extent necessary to give effect to the Act so that there was no scope for harmonising the Act with the Transfer of Property Act. We entirely agree with the learned Judges views. We must, however, observe that this argument was; not advanced in this Court. 10. Before leaving this matter a reference to the preamble of the Act is necessary. It states that the Act was passed to give protection to tenants who have constructed buildings on others lands in the hope that they would not be evicted. The learned Judges of the Division Bench found it to be too vague to be taken as defining a definite ascertained class of tenants.In any case, no resort to the preamble would, we think, be justified in interpreting the definition of tenant in S. 2 (4) as the words used in it are clear and unambiguous.We observe that the language used in Ss. 3 and 9 also admits of no doubt as to the meaning intended. A preamble cannot of course operated to annul a Section. We must here also say that learned counsel for the lessor did not rely on the preamble to support his contention. 11. We think it right to point out before we conclude that N. Vajrapani Naidu v. New Theatre Carnatic Talkies Ltd., AIR 1964 SC 1440 , to which our attention was drawn, does not touch the point with which we are concerned, for it turned on the proviso to S. 12 and that proviso has no application to the present case. 12. For these reasons we think that the judgment under appeal was erroneous and must be set aside. We agree with Anantanarayanan, J., that the appellants tenants had a right under S. 9 of the Act, to purchase the land leased in spite of the covenant not to build and the breach of it by them. The covenant cannot be used for interpreting S. 3 or S. 9. | 1[ds]7. Now when deciding that the covenant did not affect the right of tenants under S. 3 and was, therefore, valid, the learned Judges did not say that a tenant who built in breach of it was not a tenant as contemplated by Section 3 and was not entitled to its benefits; in fact they expressly took a contrary view. They said, and in our view rightly, there is no express provision in the Act, limiting the operation of S. 3 ....... to the tenants who were authorised by the terms of the lease to put up a building. Prima facie, therefore, the term tenant might not exclude one who puts up a superstructure on the land in breach of a covenant not to build. They stated that this was the view to be gathered from a consideration of the entire Act. But clearly there was nothing else they could legitimately consider for interpreting S. 3. It would, therefore, appear that the words prima facie with which they qualified their observation were inapposite. In effect then the learned Judges said this: The contract was valid as it did not affect the right under S. 3 of any tenant as defined in the Act and since the contract was valid, a tenant who had built in breach of it was not entitled to any right under S. 3. This is a wholly untenable proposition8. We think that the word tenant in S. 3 must be understood only in the sense that that word is defined in the Act. We repeat that there is no reason for saying that the word tenant in S. 3 does not include all tenants as defined in the Act. None has been shown apart from that given by the learned Judges which we think is ill founded. Therefore, the appellants are tenants as contemplated by S. 3. Now the covenant says that the tenant shall not build. Either that affects the right of the tenants to claim compensation for the buildings constructed in breach of it at the termination of the lease or it does not. If it does not, then no further question arises; there will then no further question arises; there will then be nothing purporting to disentitle the tenants of their rights under S. 3 and the case will be the same as where there is no covenant at all. If such is the case then, as we have said earlier, there is no dispute that the tenants are entitled to their rights under Ss. 3 and 9. If, however, the covenant not to build affects the right to claim compensation under S. 3, such a covenant would be of no effect, for under S. 12 nothing in any contract shall take away a tenants rights under the Act. The case will then also be the same as if there was no covenant at all.That is why we think that the covenant not to build does not affect the question in hand. The tenants must be held entitled to their rights under Ss. 3 and 9 in spite of the covenant not to build and a breach of it by them10. Before leaving this matter a reference to the preamble of the Act is necessary. It states that the Act was passed to give protection to tenants who have constructed buildings on others lands in the hope that they would not be evicted. The learned Judges of the Division Bench found it to be too vague to be taken as defining a definite ascertained class of tenants.In any case, no resort to the preamble would, we think, be justified in interpreting the definition of tenant in S. 2 (4) as the words used in it are clear and unambiguous.We observe that the language used in Ss. 3 and 9 also admits of no doubt as to the meaning intended. A preamble cannot of course operated to annul a Section. We must here also say that learned counsel for the lessor did not rely on the preamble to support his contention11. We think it right to point out before we conclude that N. Vajrapani Naidu v. New Theatre Carnatic Talkies Ltd., AIR 1964 SC 1440 , to which our attention was drawn, does not touch the point with which we are concerned, for it turned on the proviso to S. 12 and that proviso has no application to the present case. | 1 | 2,254 | 802 | ### Instruction:
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and one scope; a process resulting in more than one interpretation and scope is clearly erroneous. 7. Now when deciding that the covenant did not affect the right of tenants under S. 3 and was, therefore, valid, the learned Judges did not say that a tenant who built in breach of it was not a tenant as contemplated by Section 3 and was not entitled to its benefits; in fact they expressly took a contrary view. They said, and in our view rightly, there is no express provision in the Act, limiting the operation of S. 3 ....... to the tenants who were authorised by the terms of the lease to put up a building. Prima facie, therefore, the term tenant might not exclude one who puts up a superstructure on the land in breach of a covenant not to build. They stated that this was the view to be gathered from a consideration of the entire Act. But clearly there was nothing else they could legitimately consider for interpreting S. 3. It would, therefore, appear that the words prima facie with which they qualified their observation were inapposite. In effect then the learned Judges said this: The contract was valid as it did not affect the right under S. 3 of any tenant as defined in the Act and since the contract was valid, a tenant who had built in breach of it was not entitled to any right under S. 3. This is a wholly untenable proposition. 8. We think that the word tenant in S. 3 must be understood only in the sense that that word is defined in the Act. We repeat that there is no reason for saying that the word tenant in S. 3 does not include all tenants as defined in the Act. None has been shown apart from that given by the learned Judges which we think is ill founded. Therefore, the appellants are tenants as contemplated by S. 3. Now the covenant says that the tenant shall not build. Either that affects the right of the tenants to claim compensation for the buildings constructed in breach of it at the termination of the lease or it does not. If it does not, then no further question arises; there will then no further question arises; there will then be nothing purporting to disentitle the tenants of their rights under S. 3 and the case will be the same as where there is no covenant at all. If such is the case then, as we have said earlier, there is no dispute that the tenants are entitled to their rights under Ss. 3 and 9. If, however, the covenant not to build affects the right to claim compensation under S. 3, such a covenant would be of no effect, for under S. 12 nothing in any contract shall take away a tenants rights under the Act. The case will then also be the same as if there was no covenant at all.That is why we think that the covenant not to build does not affect the question in hand. The tenants must be held entitled to their rights under Ss. 3 and 9 in spite of the covenant not to build and a breach of it by them. 9. Before Anantanarayanan, J. the argument for the lessor was somewhat different. It was said that S. 3 had to be read in harmony with the general law, that is. S. 108 (h) of the Transfer of Property Act, which gave the tenant a right to build when the lease did not prohibit building and, therefore, the erection under S. 3 must be one permitted by law. The learned Judge rejected this contention, in our opinion rightly, on the ground that S. 3 and S.9 contained no words justifying it and under S. 12 no contract could be made affecting the Sections earlier mentioned. He also pointed out that S. 13 of the Act specifically provided that the Transfer of Property Act must be deemed to have been repealed to the extent necessary to give effect to the Act so that there was no scope for harmonising the Act with the Transfer of Property Act. We entirely agree with the learned Judges views. We must, however, observe that this argument was; not advanced in this Court. 10. Before leaving this matter a reference to the preamble of the Act is necessary. It states that the Act was passed to give protection to tenants who have constructed buildings on others lands in the hope that they would not be evicted. The learned Judges of the Division Bench found it to be too vague to be taken as defining a definite ascertained class of tenants.In any case, no resort to the preamble would, we think, be justified in interpreting the definition of tenant in S. 2 (4) as the words used in it are clear and unambiguous.We observe that the language used in Ss. 3 and 9 also admits of no doubt as to the meaning intended. A preamble cannot of course operated to annul a Section. We must here also say that learned counsel for the lessor did not rely on the preamble to support his contention. 11. We think it right to point out before we conclude that N. Vajrapani Naidu v. New Theatre Carnatic Talkies Ltd., AIR 1964 SC 1440 , to which our attention was drawn, does not touch the point with which we are concerned, for it turned on the proviso to S. 12 and that proviso has no application to the present case. 12. For these reasons we think that the judgment under appeal was erroneous and must be set aside. We agree with Anantanarayanan, J., that the appellants tenants had a right under S. 9 of the Act, to purchase the land leased in spite of the covenant not to build and the breach of it by them. The covenant cannot be used for interpreting S. 3 or S. 9.
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7. Now when deciding that the covenant did not affect the right of tenants under S. 3 and was, therefore, valid, the learned Judges did not say that a tenant who built in breach of it was not a tenant as contemplated by Section 3 and was not entitled to its benefits; in fact they expressly took a contrary view. They said, and in our view rightly, there is no express provision in the Act, limiting the operation of S. 3 ....... to the tenants who were authorised by the terms of the lease to put up a building. Prima facie, therefore, the term tenant might not exclude one who puts up a superstructure on the land in breach of a covenant not to build. They stated that this was the view to be gathered from a consideration of the entire Act. But clearly there was nothing else they could legitimately consider for interpreting S. 3. It would, therefore, appear that the words prima facie with which they qualified their observation were inapposite. In effect then the learned Judges said this: The contract was valid as it did not affect the right under S. 3 of any tenant as defined in the Act and since the contract was valid, a tenant who had built in breach of it was not entitled to any right under S. 3. This is a wholly untenable proposition8. We think that the word tenant in S. 3 must be understood only in the sense that that word is defined in the Act. We repeat that there is no reason for saying that the word tenant in S. 3 does not include all tenants as defined in the Act. None has been shown apart from that given by the learned Judges which we think is ill founded. Therefore, the appellants are tenants as contemplated by S. 3. Now the covenant says that the tenant shall not build. Either that affects the right of the tenants to claim compensation for the buildings constructed in breach of it at the termination of the lease or it does not. If it does not, then no further question arises; there will then no further question arises; there will then be nothing purporting to disentitle the tenants of their rights under S. 3 and the case will be the same as where there is no covenant at all. If such is the case then, as we have said earlier, there is no dispute that the tenants are entitled to their rights under Ss. 3 and 9. If, however, the covenant not to build affects the right to claim compensation under S. 3, such a covenant would be of no effect, for under S. 12 nothing in any contract shall take away a tenants rights under the Act. The case will then also be the same as if there was no covenant at all.That is why we think that the covenant not to build does not affect the question in hand. The tenants must be held entitled to their rights under Ss. 3 and 9 in spite of the covenant not to build and a breach of it by them10. Before leaving this matter a reference to the preamble of the Act is necessary. It states that the Act was passed to give protection to tenants who have constructed buildings on others lands in the hope that they would not be evicted. The learned Judges of the Division Bench found it to be too vague to be taken as defining a definite ascertained class of tenants.In any case, no resort to the preamble would, we think, be justified in interpreting the definition of tenant in S. 2 (4) as the words used in it are clear and unambiguous.We observe that the language used in Ss. 3 and 9 also admits of no doubt as to the meaning intended. A preamble cannot of course operated to annul a Section. We must here also say that learned counsel for the lessor did not rely on the preamble to support his contention11. We think it right to point out before we conclude that N. Vajrapani Naidu v. New Theatre Carnatic Talkies Ltd., AIR 1964 SC 1440 , to which our attention was drawn, does not touch the point with which we are concerned, for it turned on the proviso to S. 12 and that proviso has no application to the present case.
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State of Nagaland Vs. G. Vasantha | been in service for nearly five years. The counsel finally urged that the respondent being a temporary servant, her services had been terminated under the contract of service and the State Government was entitled to pass such an order. 8. Mr. Lakshmi Narasu, learned counsel appearing for the respondent, in view of the approach made by the High Court, found considerable difficulty in supporting the order. But the counsel urged that as the High Court has come to the conclusion that the order of termination must have been passed by way of punishment, and as the services of the respondent who had been in service for over five years had been terminated without giving any reason, this Court need not interfere with the decision of the High Court. 9. In our opinion, the High Court has committed a fundamental error in proceeding on the basis that Article 311 applies to the respondent. The High Court has also committed another serious mistake in proceeding on the basis that the order dated November 10, 1966 of the State Government made the respondent a quasi-permanent government servant. The order dated October 23, 1962 appointing the respondent as an Assistant Teacher clearly says that the post to which she is appointed is a temporary one and that her appointment itself is made on a purely temporary basis. The order further states that the services of the respondent may be terminated by one calendar months notice in writing on either side. No doubt the respondent was in service till the impugned order was passed. 10. Rules 2 (b), 3 and 4 of the Central Services (Temporary Services) Rules, 1949 read together show that a government servant shall be deemed to be in quasi-permanent service if the said government servant has been in continuous government service for more than three years and the appointing authority is satisfied regarding the matters relating to the said employee referred to in Rule 3, and issues a declaration to that effect. The State Government, no doubt appears to have taken a decision on August 17, 1966 to make certain temporary employees quasi-permanent and accordingly certain posts also were made permanent. The Government also issued a Circular, dated October 10, 1966 making the temporary posts in the Schedules attached to that order into permanent posts under the Education Department. But it will be seen that except making those posts permanent, the services of the incumbents of such posts had not been made permanent, as wrongly assumed by the High Court. On the other hand, by order dated September 14, 1967 the State Government made various temporary employees permanent.No such notification had been issued in respect of the respondent, i.e., no declaration in respect of the respondent, as required under Rule 3 (2) of the Central Services (Temporary Services) Rules, 1949 has been issued. Therefore the position was that the respondent continued to be a temporary servant on the date when the order under attack was passed. 11. The High Court itself has stated. "It is true that the termination appears to be innocuous and not on any disciplinary or punitive grounds". After this finding and in view of the fact that the respondent was only a temporary government servant, whose services had been terminated under the contract of service, no further question regarding the validity of the order arises at all. But the High Court has expressed the opinion that Article 311 has been violated because it must be inferred that the order has been passed by way of punishment, especially when the respondent has been in service for over five years. This reasoning, in our opinion, is erroneous. In fact the High Court has recorded two inconsistent findings: (i) that the termination is incases and not on any disciplinary or punishment grounds; and (ii) that the order of termination must be considered to have been passed by way of punishment. Even the respondent, so far as we could see, has not taken up any plea tot he effect that the order terminating her services was by way of punishment. 12. No doubt the High Court has referred to certain passages in the decision of this Court in Parshotam Lal Dhingra v. Union of India, (1958) SCR 828 = (AIR 1958 SC 36 ) but those principles have no application to the facts of the present case. Reviewing the case-law on the subject, the recent decision of this Court in State of Punjab v. Sukh Raj, AIR 1968 SC 1089 has laid down several propositions of which proposition No. 1 is as follows: "On a conspectus of these cases, the following propositions are clear:- 1. The services of a temporary servant or a probationer can be terminated under the rules of his employment and such termination without anything more would not attract the operation of Article 311 of the Constitution." As we have already pointed out, the services of the respondent have been terminated according to the terms of the contract of service and the order terminating the service is one simpliciter and not by way of punishment. If so, the matter comes squarely within the proposition No. 1 set out above and it follows that Article 311 has no application at all. 13. As we have mentioned earlier, the respondent has raised a contention that as she was appointed by the Chief Secretary, the order terminating her services passed by the Deputy Director of Education, a subordinate authority, is not valid. But that contention, again was on the basis that Article 311 has been violated in this regard. The appellant State has taken the stand that the power of appointment had been subsequently vested in the Director of Education and that there has been a delegation in favour of the Deputy Director of Education to exercise all the powers of the Director in this regard. In the view that we take that Article 311 has no application to the case of the respondent, it becomes unnecessary to consider this aspect. | 1[ds]9. In our opinion, the High Court has committed a fundamental error in proceeding on the basis that Article 311 applies to the respondent. The High Court has also committed another serious mistake in proceeding on the basis that the order dated November 10, 1966 of the State Government made the respondent at government servant. The order dated October 23, 1962 appointing the respondent as an Assistant Teacher clearly says that the post to which she is appointed is a temporary one and that her appointment itself is made on a purely temporary basis. The order further states that the services of the respondent may be terminated by one calendar months notice in writing on either side. No doubt the respondent was in service till the impugned order was passed10. Rules 2 (b), 3 and 4 of the Central Services (Temporary Services) Rules, 1949 read together show that a government servant shall be deemed to be int service if the said government servant has been in continuous government service for more than three years and the appointing authority is satisfied regarding the matters relating to the said employee referred to in Rule 3, and issues a declaration to that effect. The State Government, no doubt appears to have taken a decision on August 17, 1966 to make certain temporary employeest and accordingly certain posts also were made permanent. The Government also issued a Circular, dated October 10, 1966 making the temporary posts in the Schedules attached to that order into permanent posts under the Education Department. But it will be seen that except making those posts permanent, the services of the incumbents of such posts had not been made permanent, as wrongly assumed by the High Court. On the other hand, by order dated September 14, 1967 the State Government made various temporary employees permanent.No such notification had been issued in respect of the respondent, i.e., no declaration in respect of the respondent, as required under Rule 3 (2) of the Central Services (Temporary Services) Rules, 1949 has been issued. Therefore the position was that the respondent continued to be a temporary servant on the date when the order under attack was passed11. The High Court itself has stated. "It is true that the termination appears to be innocuous and not on any disciplinary or punitive grounds". After this finding and in view of the fact that the respondent was only a temporary government servant, whose services had been terminated under the contract of service, no further question regarding the validity of the order arises at all. But the High Court has expressed the opinion that Article 311 has been violated because it must be inferred that the order has been passed by way of punishment, especially when the respondent has been in service for over five years. This reasoning, in our opinion, is erroneous. In fact the High Court has recorded two inconsistent findings: (i) that the termination is incases and not on any disciplinary or punishment grounds; and (ii) that the order of termination must be considered to have been passed by way of punishment. Even the respondent, so far as we could see, has not taken up any plea tot he effect that the order terminating her services was by way of punishment12. No doubt the High Court has referred to certain passages in the decision of this Court in Parshotam Lal Dhingra v. Union of India, (1958) SCR 828 = (AIR 1958 SC 36 ) but those principles have no application to the facts of the present case. Reviewing thew on the subject, the recent decision of this Court in State of Punjab v. Sukh Raj, AIR 1968 SC 1089 has laid down several propositions of which proposition No. 1 is as follows:"On a conspectus of these cases, the following propositions are clear:1. The services of a temporary servant or a probationer can be terminated under the rules of his employment and such termination without anything more would not attract the operation of Article 311 of the Constitution."As we have already pointed out, the services of the respondent have been terminated according to the terms of the contract of service and the order terminating the service is one simpliciter and not by way of punishment. If so, the matter comes squarely within the proposition No. 1 set out above and it follows that Article 311 has no application at all13. As we have mentioned earlier, the respondent has raised a contention that as she was appointed by the Chief Secretary, the order terminating her services passed by the Deputy Director of Education, a subordinate authority, is not valid. But that contention, again was on the basis that Article 311 has been violated in this regard. The appellant State has taken the stand that the power of appointment had been subsequently vested in the Director of Education and that there has been a delegation in favour of the Deputy Director of Education to exercise all the powers of the Director in this regard. In the view that we take that Article 311 has no application to the case of the respondent, it becomes unnecessary to consider this aspect. | 1 | 2,122 | 956 | ### Instruction:
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been in service for nearly five years. The counsel finally urged that the respondent being a temporary servant, her services had been terminated under the contract of service and the State Government was entitled to pass such an order. 8. Mr. Lakshmi Narasu, learned counsel appearing for the respondent, in view of the approach made by the High Court, found considerable difficulty in supporting the order. But the counsel urged that as the High Court has come to the conclusion that the order of termination must have been passed by way of punishment, and as the services of the respondent who had been in service for over five years had been terminated without giving any reason, this Court need not interfere with the decision of the High Court. 9. In our opinion, the High Court has committed a fundamental error in proceeding on the basis that Article 311 applies to the respondent. The High Court has also committed another serious mistake in proceeding on the basis that the order dated November 10, 1966 of the State Government made the respondent a quasi-permanent government servant. The order dated October 23, 1962 appointing the respondent as an Assistant Teacher clearly says that the post to which she is appointed is a temporary one and that her appointment itself is made on a purely temporary basis. The order further states that the services of the respondent may be terminated by one calendar months notice in writing on either side. No doubt the respondent was in service till the impugned order was passed. 10. Rules 2 (b), 3 and 4 of the Central Services (Temporary Services) Rules, 1949 read together show that a government servant shall be deemed to be in quasi-permanent service if the said government servant has been in continuous government service for more than three years and the appointing authority is satisfied regarding the matters relating to the said employee referred to in Rule 3, and issues a declaration to that effect. The State Government, no doubt appears to have taken a decision on August 17, 1966 to make certain temporary employees quasi-permanent and accordingly certain posts also were made permanent. The Government also issued a Circular, dated October 10, 1966 making the temporary posts in the Schedules attached to that order into permanent posts under the Education Department. But it will be seen that except making those posts permanent, the services of the incumbents of such posts had not been made permanent, as wrongly assumed by the High Court. On the other hand, by order dated September 14, 1967 the State Government made various temporary employees permanent.No such notification had been issued in respect of the respondent, i.e., no declaration in respect of the respondent, as required under Rule 3 (2) of the Central Services (Temporary Services) Rules, 1949 has been issued. Therefore the position was that the respondent continued to be a temporary servant on the date when the order under attack was passed. 11. The High Court itself has stated. "It is true that the termination appears to be innocuous and not on any disciplinary or punitive grounds". After this finding and in view of the fact that the respondent was only a temporary government servant, whose services had been terminated under the contract of service, no further question regarding the validity of the order arises at all. But the High Court has expressed the opinion that Article 311 has been violated because it must be inferred that the order has been passed by way of punishment, especially when the respondent has been in service for over five years. This reasoning, in our opinion, is erroneous. In fact the High Court has recorded two inconsistent findings: (i) that the termination is incases and not on any disciplinary or punishment grounds; and (ii) that the order of termination must be considered to have been passed by way of punishment. Even the respondent, so far as we could see, has not taken up any plea tot he effect that the order terminating her services was by way of punishment. 12. No doubt the High Court has referred to certain passages in the decision of this Court in Parshotam Lal Dhingra v. Union of India, (1958) SCR 828 = (AIR 1958 SC 36 ) but those principles have no application to the facts of the present case. Reviewing the case-law on the subject, the recent decision of this Court in State of Punjab v. Sukh Raj, AIR 1968 SC 1089 has laid down several propositions of which proposition No. 1 is as follows: "On a conspectus of these cases, the following propositions are clear:- 1. The services of a temporary servant or a probationer can be terminated under the rules of his employment and such termination without anything more would not attract the operation of Article 311 of the Constitution." As we have already pointed out, the services of the respondent have been terminated according to the terms of the contract of service and the order terminating the service is one simpliciter and not by way of punishment. If so, the matter comes squarely within the proposition No. 1 set out above and it follows that Article 311 has no application at all. 13. As we have mentioned earlier, the respondent has raised a contention that as she was appointed by the Chief Secretary, the order terminating her services passed by the Deputy Director of Education, a subordinate authority, is not valid. But that contention, again was on the basis that Article 311 has been violated in this regard. The appellant State has taken the stand that the power of appointment had been subsequently vested in the Director of Education and that there has been a delegation in favour of the Deputy Director of Education to exercise all the powers of the Director in this regard. In the view that we take that Article 311 has no application to the case of the respondent, it becomes unnecessary to consider this aspect.
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9. In our opinion, the High Court has committed a fundamental error in proceeding on the basis that Article 311 applies to the respondent. The High Court has also committed another serious mistake in proceeding on the basis that the order dated November 10, 1966 of the State Government made the respondent at government servant. The order dated October 23, 1962 appointing the respondent as an Assistant Teacher clearly says that the post to which she is appointed is a temporary one and that her appointment itself is made on a purely temporary basis. The order further states that the services of the respondent may be terminated by one calendar months notice in writing on either side. No doubt the respondent was in service till the impugned order was passed10. Rules 2 (b), 3 and 4 of the Central Services (Temporary Services) Rules, 1949 read together show that a government servant shall be deemed to be int service if the said government servant has been in continuous government service for more than three years and the appointing authority is satisfied regarding the matters relating to the said employee referred to in Rule 3, and issues a declaration to that effect. The State Government, no doubt appears to have taken a decision on August 17, 1966 to make certain temporary employeest and accordingly certain posts also were made permanent. The Government also issued a Circular, dated October 10, 1966 making the temporary posts in the Schedules attached to that order into permanent posts under the Education Department. But it will be seen that except making those posts permanent, the services of the incumbents of such posts had not been made permanent, as wrongly assumed by the High Court. On the other hand, by order dated September 14, 1967 the State Government made various temporary employees permanent.No such notification had been issued in respect of the respondent, i.e., no declaration in respect of the respondent, as required under Rule 3 (2) of the Central Services (Temporary Services) Rules, 1949 has been issued. Therefore the position was that the respondent continued to be a temporary servant on the date when the order under attack was passed11. The High Court itself has stated. "It is true that the termination appears to be innocuous and not on any disciplinary or punitive grounds". After this finding and in view of the fact that the respondent was only a temporary government servant, whose services had been terminated under the contract of service, no further question regarding the validity of the order arises at all. But the High Court has expressed the opinion that Article 311 has been violated because it must be inferred that the order has been passed by way of punishment, especially when the respondent has been in service for over five years. This reasoning, in our opinion, is erroneous. In fact the High Court has recorded two inconsistent findings: (i) that the termination is incases and not on any disciplinary or punishment grounds; and (ii) that the order of termination must be considered to have been passed by way of punishment. Even the respondent, so far as we could see, has not taken up any plea tot he effect that the order terminating her services was by way of punishment12. No doubt the High Court has referred to certain passages in the decision of this Court in Parshotam Lal Dhingra v. Union of India, (1958) SCR 828 = (AIR 1958 SC 36 ) but those principles have no application to the facts of the present case. Reviewing thew on the subject, the recent decision of this Court in State of Punjab v. Sukh Raj, AIR 1968 SC 1089 has laid down several propositions of which proposition No. 1 is as follows:"On a conspectus of these cases, the following propositions are clear:1. The services of a temporary servant or a probationer can be terminated under the rules of his employment and such termination without anything more would not attract the operation of Article 311 of the Constitution."As we have already pointed out, the services of the respondent have been terminated according to the terms of the contract of service and the order terminating the service is one simpliciter and not by way of punishment. If so, the matter comes squarely within the proposition No. 1 set out above and it follows that Article 311 has no application at all13. As we have mentioned earlier, the respondent has raised a contention that as she was appointed by the Chief Secretary, the order terminating her services passed by the Deputy Director of Education, a subordinate authority, is not valid. But that contention, again was on the basis that Article 311 has been violated in this regard. The appellant State has taken the stand that the power of appointment had been subsequently vested in the Director of Education and that there has been a delegation in favour of the Deputy Director of Education to exercise all the powers of the Director in this regard. In the view that we take that Article 311 has no application to the case of the respondent, it becomes unnecessary to consider this aspect.
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Excel Crop Care Limited Vs. Competition Commission of India & Another | practices need to be indicted and suitably punished. It is for this reason that the Act contains penal provisions for penalising such offenders. At the same time, the penalty cannot be disproportionate and it should not lead to shocking results. That is the implication of the doctrine of proportionality which is based on equity and rationality. It is, in fact, a constitutionally protected right which can be traced to Article 14 as well as Article 21 of the Constitution. The doctrine of proportionality is aimed at bringing out `proportional result or proportionality stricto sensu. It is a result oriented test as it examines the result of the law in fact the proportionality achieves balancing between two competing interests: harm caused to the society by the infringer which gives justification for penalising the infringer on the one hand and the right of the infringer in not suffering the punishment which may be disproportionate to the seriousness of the Act. No doubt, the aim of the penal provision is also to ensure that it acts as deterrent for others. At the same time, such a position cannot be countenanced which would deviate from `teaching a lesson to the violators and lead to the `death of the entity itself. If we adopt the criteria of total turnover of a company by including within its sweep the other products manufactured by the company, which were in no way connected with anti-competitive activity, it would bring about shocking results not comprehended in a country governed by Rule of Law. Cases at hand itself amply demonstrate that the CCIs contention, if accepted, would bring about anomalous results. In the case of M/s. Excel Crop Care Limited, average of three years turnover in respect of APT, in respect whereof anti-competitive agreement was entered into by the appellants, was only 32.41 crores. However, as against this, the CCI imposed penalty of Rs. 63.90 crores by adopting the criteria of total turnover of the said company with the inclusion of turnover of the other products as well. Likewise, UPL was imposed penalty of 252.44 crores by the CCI as against average of the three years turnover of APT of Rs. 77.14 crores. Thus, even when the matter is looked into from this angle, we arrive at a conclusion that it is the relevant turnover, i.e., turnover of the particular product which is to be taken into consideration and not total turnover of the violator. (vii) The doctrine of `purposive interpretation may again lean in favour of `relevant turnover as the appropriate yardstick for imposition of penalties. It is for this reason the judgment of Competition Appeal Court of South Africa in the Southern Pipeline Contractors Conrite Walls, as quoted above, becomes relevant in Indian context as well inasmuch as this Court has also repeatedly used same principle of interpretation. It needs to be repeated that there is a legislative link between the damage caused and the profits which accrue from the cartel activity. There has to be a relationship between the nature of offence and the benefit derived therefrom and once this co-relation is kept in mind, while imposing the penalty, it is the affected turnover, i.e., `relevant turnover that becomes the yardstick for imposing such a penalty. In this hue, doctrine of `purposive interpretation as well as that of `proportionality overlaps. In fact, some justifications have already appeared in this behalf while discussing the matter on the application of doctrine of proportionality. What needs to be repeated is only that the purpose and objective behind the Act is to discourage and stop anti-competitive practice. Penal provision contained in Section 27 of the Act serves this purpose as it is aimed at achieving the objective of punishing the offender and acts as deterrent to others. Such a purpose can adequately be served by taking into consideration the relevant turnover. It is in the public interest as well as in the interest of national economy that industries thrive in this country leading to maximum production. Therefore, it cannot be said that purpose of the Act is to `finish those industries altogether by imposing those kinds of penalties which are beyond their means. It is also the purpose of the Act not to punish the violator even in respect of which there are no anti-competitive practices and the provisions of the Act are not attracted. We may mention that Mr. Kaul, learned Additional Solicitor General had referred to the statutory regimes in various other countries in his endeavour to demonstrate that it is the concept of total turnover which was recognised in other jurisdictions as well. The attempt was to show that the principle of `total turnover was prevalent across the globe wherever such laws are enforced. On the contrary, the learned counsel for the appellants pointed out the provision contained in similar statutes of some countries where the concept of relevant turnover had been adopted. South Africa is one such example and, in fact, COMPAT has referred to the judgment of Southern African Competition Appeal Court in this behalf, i.e., Southern Pipeline Contractors Conrite Walls (Pty) Ltd. case. In such a scenario, it may not be necessary to deal with the statutory provisions contained in different countries. In view of interpretation that is given by us to the provision at hand, we would, however, like to comment that in some of the jurisdictions cited by Mr. Kaul, learned Additional Solicitor General, the guidelines are also framed which ensure that the penalty does not become disproportionate, for example, in the UK, the Office of Fair Trade (OFT) has `guidelines as to the appropriate amount of penalty. In contrast, there are no similar guidelines issued as far as India is concerned and in the absence thereof imposition of penalty, taking into consideration total turnover, may bring about disastrous results which happened in the instant case itself with the imposition of penalty by the CCI.Thus, we do not find any error in the approach of the order of the COMPAT interpreting Section 27(b). | 0[ds]Though, the Competition Act is of the year 2002 and was passed by the Legislature on 13th January, 2003, as per the provisions of Section 1(3), the Act was to come into force from the date to be notified by the Central Government in the Official Gazette. Notification was issued by the Central Government wherein 31st March, 2003 was specified as the appointed date. However, vide this notification, some of the provisions of the Act, and not all the provisions, were enforced. Many other provisions came into force vide notification dated 19th June, 2003 and thereafter by notification dated 20th December, 2007 some more provisions were notified. Insofar as Section 3 of the Act is concerned, this provision along with many other provisions came into force on 20th May, 2009 vide S.O. 1241(E) dated 15th May, 2009 on which date the said notification was published in the Gazette of India as well. Remaining provisions were notified by subsequent notifications. It is, thus, a unique example where the entire Act was not enforced by one single notification but different provisions of the Act were enforced in bits and pieces by issuing various notifications over a span ofin view the said pattern of quotation, the COMPAT opined that notwithstanding any objection of the appellants premised on retrospective application of Section 3, theconduct of APT manufacturers, i.e. the appellants, continued right up to the year 2011, much after Section 3 of the Act had come into force. Therefore, even if 2009 tender was to be completely ignored, the provisions of the Act would nevertheless be attracted in the instant case.We are in complete agreement with the aforesaid view taken by the COMPAT. We are also of the firm view that provisions of Section 3 are applicable to 2009 tender as well.In the instant case, we are concerned with the first type of practices, namely,agreements. The Act, which prohibitsWhen we recognise that competition has number of benefits, it clearly follows that cartels oragreements cause harm to consumers by fixing prices, limiting outputs or allocating markets. Effective enforcement against such practices has direct visible effects in terms of reduced prices in the market and this is also supported by various empirical studies.Once the aforesaid purpose sought to be achieved is kept in mind, and the same is applied to the facts of this case after finding that theconduct of the appellants continued after coming into force of provisions of Section 3 of the Act as well, the argument predicated on retrospectivity pales intohas to keep in mind the aforesaid objective which the legislation in question attempts toand the mischief which it seeks to remedy. As pointed out above, Section 18 of the Act casts an obligation on the CCI to `eliminatepractices and promote competition, interests of the consumers and free trade. It was rightly pointed out by Mr. Neeraj Kishan Kaul, the learned Additional Solicitor General, that the Act is clearly aimed at addressing the evils affecting the economic landscape of the country in which interest of the society and consumers at large is directly involved.Having regard to the aforesaid objective, we are of the opinion that merely because the purported agreement between the appellants was entered into and bids submitted before May 20, 2009 are no yardstick to put an end to the matter. No doubt, after the agreement, first sting was inflicted on May 8, 2009 when the bids were submitted and there was no provision like S. 3 on that date. However, the effect of the arrangement continued even after May 20, 2009, with more stings, as a result of which the appellants bagged the contracts and fruits thereof reaped by the appellants when Section 3 had come into force which frowns upon such kinds of agreements.24. We are, thus, of the opinion that inquiry into the tender of March 2009 by the CCI is covered by Section 3 of the Act inasmuch as the tender process, though initiated prior to the date when Section 3 became operation, continued much beyond May 20, 2009, the date on which the provisions of Section 3 of the Act were enforced. We agree with the COMPAT that the role of the appellants did not come to an end with the submission of bid on May 08, 2009.25. In this behalf, it is to be emphasised again that merely by submitting the tenders, role of the appellants as tenderers had not come to an end. As already pointed out, the DG in its report noted that FCI resorted to global tender which hadal bid and financial bid. Those who qualified inprocess, their financial bids were to be opened. The appellants had submitted their bids on May 08, 2009, which was the last date for this purpose. Bids were to be submitted by 2.00 pm on that day and were to be opened at 3.00 pm on the same day. The committee of responsible officers for evaluating the technical price bids was constituted. As per the practice, the lowest bidder is invited by the committee for negotiations. And after negotiations, the committee submits the report giving its recommendations on the basis of which contract is awarded. If there was variation in the prices quoted by the appellants in their bids, things would have been different. Thencould have been called for negotiations. However, all the three appellants quoted identical rates of Rs.Because of this reason all the appellants were LI and had to be called for negotiations. Therefore, bidding process did not come to an end on May 08, 2009 as argued by the appellants. It continued even thereafter when the appellants appeared before the committee for negotiations, much beyond May 20, 2009 the date on which provisions of Section 3 of the Act were enforced.We approve the aforesaid view taken by the Bombay High Court. It may be added that had theagreement between the appellants been executed and completed in its entirety prior to May 20, 2009, i.e. nothing further was left to be done and all actions as contemplated by the agreement had already been accomplished, it could perhaps be argued that the Act was not applicable to such an agreement or actions taken pursuant to the agreement. However, that is not the factual position in the instant case as the purported arrangement entered into by the appellants continued to be acted upon even after May 20,are inclined to agree with this pellucid submission of the learned Additional Solicitorare, therefore, of the opinion that the two expressions are to be interpreted using the principle of noscitur a sociis, i.e. when two or more words which are susceptible to analogous meanings are coupled together, the words can take colour from eachthus, answer Issue No. 1 in the negative by holding that the CCI was well within its jurisdiction to hold an enquiry under Section 3 of the Act in respect of tender of March,is more so when there was no specific direction in the CCIs order dated February 24, 2011 passed under Section 26(1) of the Act and, therefore, the 2011 tender could not be the subject matter of inquiry when it was not referred to in the communication of the FCI or order of theentirely agree with the aforesaid view taken by the COMPAT.If the contention of the appellants is accepted, it would render the entire purpose of investigation nugatory. The entire purpose of such an investigation is to cover all necessary facts and evidence in order to see as to whether there are anypractices adopted by the persons complained against. For this purpose, no doubt, the starting point of inquiry would be the allegations contained in the complaint. However, while carrying out this investigation, if other facts also get revealed and are brought to light, revealing that the `persons or `enterprises had entered into an agreement that is prohibited by Section 3 which had appreciable adverse effect on the competition, the DG would be well within his powers to include those as well in his report. Even when the CCI forms prima facie opinion on receipt of a complaint which is recorded in the order passed under Section 26(1) of the Act and directs the DG to conduct the investigation, at the said initial stage, it cannot foresee and predict whether any violation of the Act would be found upon investigation and what would be the nature of the violation revealed through investigation. If the investigation process is to be restricted in the manner projected by the appellants, it would defeat the very purpose of the Act which is to prevent practices having appreciable adverse effect on the competition. We, therefore, reject this argument of the appellants as well touching upon the jurisdiction of the DG.It is not in dispute that in respect of 2009 tender of the FCI, all the three appellants had quoted the same price, i.e. `388 per kg. for the APT. The appellants have attempted to give their explanations and have contended that it cannot be presumed that it was the result of any prior agreement or arrangement between them. This aspect shall be taken note of and dealt with in detail later at the appropriate stage. Before that, it needs to be highlighted that it is not only 2009 FCI tender in respect of which DG found the violation. Pertinently, the investigation of DG revealed that the appellants had been quoting such identical rates much prior to and even after May 20, 2009. No doubt, in relation to tenders prior to 2009, it cannot be said that there was any violation of law by the appellants. However, prior practice definitely throws light on the formation of cartelisation by the appellants, thereby making it easier to understand the events of 2009 tender. Therefore, to take a holistic view of the matter, it would be essential to point out that the DG in his report had tabulated this tendency of quoting identical rates by these parties in respect of various tenders issued by even other Government bodies before and after 2009.The aforesaid table shows identical pricing by these parties even in respect of tenders floated by the U.P. State Warehousing Corporation and Punjab State Civil Supplies Corporation. It was repeated in respect of 2008 tender floated by the Central Warehousing Corporation. Tenders up to S.No.7 above, no doubt, relate to the period which is earlier to coming into force of the provisions of Section 3. At S.No. 8 is the tender of the FCI of March, 2009, which is held to be covered on the principle of retroactivity, as already held above. However, insofar as tenders mentioned at S.Nos. 9 to 16 are concerned, they all pertain to the period after Section 3 became operational. These are clear cut examples of identical pricing by the three appellants. No doubt, the appellants cannot be penalised in respect of tenders mentioned at S.Nos. 1 to 7 as there was no provision like Section 3 at that time. However, such illustrations become important in finding out the mens rea of the appellants, i.e. arriving at an agreement to enter into collusive bidding which continued with impunity right up to 2011. Further, this trend of quoting identical price in respect of so many tenders, not only of FCI but other Government bodies as well, is sufficient to negate all explanations given by the appellants taking the pretext of coincidence or economicThe aforesaid argument is highly misconceived. A neat and pellucid reply of Mr. Kaul, which commands acceptance, is that argument of parallelism is not applicable in bid cases and it fits in the realm of market economy. It is for this reason the entire history of quoting identical price before coming into operation of Section 3 and which continued much after Section 3 of the Act was enforced has been highlighted. There cannot be coincidence to such an extent that almost on all occasions price quoted by the three appellants is identical, not even few paisa more or less from eachonus was on the appellants in view of Section 3 of the Act, and that too heavy onus, to justify the above trend, but they have failed to discharge this burden. We are, therefore, of the opinion that ingredients of Section 3 stand satisfied and the CCI rightly held that provisions of Section 3(3)(a), 3(3)(b) and 3(3)(d) have been contravened by thethe instant case, argument of oligopoly market was not even raised either before the CCI or COMPAT. Moreover, with the eloquent facts, mentioned above, staring at the appellants, we do not agree with the arguments put forth by Mr.to all the appellants, their decision not to participate in the aforesaid bid was the onerous, unreasonable, arbitrary and unquestionable conditions that were put in the said tender. As these were not acceptable to them, they individually decided not to take part in the tender, which was a valid business decision and not result ofagreement of theThe COMPAT, after discussing the matter, arrived at the conclusion that it was clearly anmove, inasmuch as the tender was published on April 28, 2011 and the last date for submitting the price bids was May 27, 2011, but only a day before i.e. on May 26, 2011, such a letter was sent by M/s. Excel Crop Care Limited to the FCI. Insofar as M/s. UPL is concerned, it did not even bother to give any representation. Likewise, M/s. Sandhya Organics did not approach the FCI at all with the representation that the quantities to be supplied were huge and the tender conditions be suitably modified.48. We feel that COMPAT has examined the matter in right perspective. After examining the record, one finds that important fundamental conditions were the same which used to be in the earlier tenders. In 2009 tender, a specific quantity of 600 MT was prescribed. At that time, all the three appellants participated and did not object to the same. As against this in 2011 tender, the tentative annual requirement of APT was stated to be 400 MT and not 75 MT per month. The condition referred to by the appellants was not for supply of 75 MT per month. It only stated that in a given month the tenderer should have capacity to supply 75 MT. It was nowhere stated that 75 MT will have to be supplied by the successful tenderer every month. In any case, from the conduct of the three appellants, it becomes manifest that reason to boycott the May 2011 tender was not the purported onerous conditions, but it was a concerted action. Otherwise, if the appellants were genuinely interested in participating in the said tender and were aggrieved by the aforesaid conditions, they could have taken up the matter with the FCI well in time. They, therefore, could request the FCI to drop the same (in fact FCI dropped these conditions afterwards when the matter was brought to their notice). However, no such effort was made. As pointed out above, M/s. Excel Crop Care wrote the letter only a day before, just to create the record which cannot be termed as a bona fide move on its part. UPL did not even make any such representation in writing. Likewise, M/s. Sandhya Organics Chemicals (P) Ltd. would not have liked itself to be rendered disqualified and silently swallowed this situation. After all, it would have liked to remain a supplier of APT to FCI having regard to the fact that the said product is consumed by handful of Government sector undertakings. Therefore, not making any sincere effort in this behalf by any of the appellants clearly shows that they were in hand in glove in taking a decision not to bid against this tender. This conclusion gets strengthened by the fact that these are the only four suppliers (including three appellants) in the market for this product. Reaction of not participating in the said tender by four suppliers could have been perceived otherwise, had there been a number of manufacturers in the market and four out of them abstaining. Abstention by hundred percent (who are only four) makes the things quite obvious. Events get quite apparent when examined along with past history of quoting identical prices, an aspect already commented above.49. Since collusion stands proved by the aforesaid conduct of the appellants in abstaining from the bidding in respect of May 2011 tender, requirement of Section 3(3)(d) of the Act read with `explanation thereto stands satisfied, viz., concerted action based on an agreement/arrangement between the appellants, resulted in restricting or manipulating competition or process of bidding, since the said act was collusive in nature.50. We, therefore, agree with the conclusions of the COMPAT on this aspect as well.We have given our serious thought to this question of penalty with reference to `turnover of the person or enterprise. At the outset, it may be mentioned that Section 2(y) which defines `turnover does not provide any clarity to the aforesaid issue. It only mentions that turnover includes value of goods or services. There is, thus, absence of certainty as to what precise meaning should be ascribed to the expression `turnover. Somewhat similar position appears in EU statute and in order to provide some clear directions, EU guidelines on the subject have been issued. These guidelines do refer to the concept of `relevantAppeal Court used the words `affected turnover. It determined the amount of penalty on the basis of these guidelines issued by the European Union (EU) and the Office of Fair Trade (OFT). In that case the concerned company Southern Pipeline Contractors was acompany and the `affected turnover was comparatively small.In the absence of specific provision as to whether such turnover has to be product specific or entire turnover of the offending company, we find that adopting the criteria of `relevant turnover for the purpose of imposition of penalty will be more in tune with ethos of the Act and the legal principles which surround matters pertaining to imposition ofdoubt, the aim of the penal provision is also to ensure that it acts as deterrent for others. At the same time, such a position cannot be countenanced which would deviate from `teaching a lesson to the violators and lead to the `death of the entity itself. If we adopt the criteria of total turnover of a company by including within its sweep the other products manufactured by the company, which were in no way connected withactivity, it would bring about shocking results not comprehended in a country governed by Rule of Law. Cases at hand itself amply demonstrate that the CCIs contention, if accepted, would bring about anomalous results. In the case of M/s. Excel Crop Care Limited, average of three years turnover in respect of APT, in respect whereofagreement was entered into by the appellants, was only 32.41 crores. However, as against this, the CCI imposed penalty of Rs. 63.90 crores by adopting the criteria of total turnover of the said company with the inclusion of turnover of the other products as well. Likewise, UPL was imposed penalty of 252.44 crores by the CCI as against average of the three years turnover of APT of Rs. 77.14 crores. Thus, even when the matter is looked into from this angle, we arrive at a conclusion that it is the relevant turnover, i.e., turnover of the particular product which is to be taken into consideration and not total turnover of theattempt was to show that the principle of `total turnover was prevalent across the globe wherever such laws are enforced. On the contrary, the learned counsel for the appellants pointed out the provision contained in similar statutes of some countries where the concept of relevant turnover had been adopted. South Africa is one such example and, in fact, COMPAT has referred to the judgment of Southern African Competition Appeal Court in this behalf, i.e., Southern Pipeline Contractors Conrite Walls (Pty) Ltd. case. In such a scenario, it may not be necessary to deal with the statutory provisions contained in different countries. In view of interpretation that is given by us to the provision at hand, we would, however, like to comment that in some of the jurisdictions cited by Mr. Kaul, learned Additional Solicitor General, the guidelines are also framed which ensure that the penalty does not become disproportionate, for example, in the UK, the Office of Fair Trade (OFT) has `guidelines as to the appropriate amount of penalty. In contrast, there are no similar guidelines issued as far as India is concerned and in the absence thereof imposition of penalty, taking into consideration total turnover, may bring about disastrous results which happened in the instant case itself with the imposition of penalty by the CCI.Thus, we do not find any error in the approach of the order of the COMPAT interpreting Section 27(b).12. NIT in question was issued by FCI on 28th March, 2009. Last date for submission of bids was 8th May, 2009. Few days thereafter, i.e., on 20th May, 2009, Section 3 of the Act was notified. It is on these facts, the argument constructed by the appellants is that as on 8th May, 2009 when the appellants had submitted their bids, Section 3 of the Act was not in operation and, therefore, tender of March, 2009 could not be the subject matter of inquiry by the CCI. According to the appellants, if this is allowed, it would amount to introducing the provisions of Section 3 of the Act retrospectively though the provision was introduced only prospectively that is from the date of the notification.In the aforesaid conspectus, principle of retroactivity would definitelytoo, when the cost structure, i.e. cost of production of this product, of the three appellants sharply varies with each other. Following factors in this behalf need to bethere is a 10 years history of quoting identical prices;(b) there are only four suppliers of the product in the market out of which three are the appellants;(c) even when the cost of production is different, they have quoted identical price;(d) even when the geographical location of the three suppliers is different, strange coincidence of identical pricing is found, that too repeatedly;(e) profit margins would be different, still quotations are same; and(f) to different parties in respect of different tenders, different rates are quoted. Still whatever price is quoted in respect of one particular tender, that is identical. It would be too much of a coincidence, difficult toappellants.46. The conditions which are perceived as `onerous by these appellants are theEarnest money deposit was raised from `10 lakhs to `30 lakhs.3) Supply required as per this standard was 75 MT per month which was too high a demand/requirement and it was difficult to effect supplies of this magnitude every month.Sandhya Organics Chemicals (P) Ltd. additionally submitted that they had placed on record that their production capacity was much less and supplying 75 MT of APT every month was beyond their means. Therefore, they were unable to tender against the said NIT. Before the COMPAT, M/s. Excel Crop Care Limited attempted to project their bona fides by showing that they had even written letter dated May 26, 2011 to the FCI conveying their inability to take part in thatarriving at this conclusion, we are influenced by the following reasons:(a) Under Section 27(b) of the Act, penalty can be imposed under two contingencies, namely, where an agreement referred to in Section 3 is anti-competitive or where an enterprise which enjoys a dominant position misuses the said dominant position thereby contravening the provisions of Section 4. In case where the violation or contravention is of Section 3 of the Act it has to be pursuant to an `agreement. Such an agreement may relate to a particular product between persons or enterprises even when such persons or enterprises are having production in more than one product. There may be a situation, which is precisely in the instant case, that some of such enterprises may be multi-product companies and some may be single product in respect of which the agreement is arrived at. If the concept of total turnover is introduced it may bring out very inequitable results. This precisely happened in this case when CCI imposed the penalty of 9% on the total turnover which has already been demonstrated above.(b) Interpretation which brings out such inequitable or absurd results has to be eschewed. This fundamental principle of interpretation has been repeatedly made use of to avoid inequitable outcomes. The Canadian Supreme Court in Ontario v. Canadian Pacific Ltd., (1995) 2 SCR 1031 wherein the expression `use occurring in Environment Protection Act was given restricted meaning. The principle that absurdity should be avoided was explained in the followingexpression "for any use that can be made of the natural environment has an identifiable literal or "plain" meaning when viewed in the context of the EPA as a whole, particularly the other paragraphs of s. 13(1). When the terms of the other paragraphs are taken into account, it can be concluded that the literal meaning of the expression "for any use that can be made of the natural environment" is "any use that can conceivably be made of the natural environment by any person or other living creature". In ordinary circumstances, once the "plain meaning" of the words in a statue have been identified there is no need for further interpretation. Different considerations can apply, however, in cases where a statute would be unconstitutional if interpreted literally. This is one of those exception cases, in that a literal interpretation of s. 13(1)(a) would fail to meet the test for overbreadth established in Heywood. The state objective underlying s. 13(1)(a) EPA is, as s. 2 of the Act declares, "the protection and conservation of the natural environment". This legislative purpose, while broad, is not without limits. In particular, the legislative interest in safeguarding the environment for "uses" requires only that it be preserved for those "uses" that are normal and typical, or that are likely to become normal or typical in the future. Interpreted literally, s. 13(1)(a) would capture a wide range of activities that fall outside the scope of the legislative purpose underlying it, and would fail to meet s.7 overbreadth scrutiny. There is, however, an alternative interpretation of s.13(1)(a) that renders it constitutional. Section 13(1)(a) can be read as expressing the general intention of s. 13(1) as a whole, and paras. 13(1)(b) through (h) can be treated as setting out specific examples of "impairment(s) of the quality of the natural environment for any use that can be made of it". When viewed in this way, the restrictions place on the word "use" in paras. (b) through (h) can be seen as imported into (a) through a variant of the ejusdem generis princile. Interpreted in this manner, s.13(1)(a) is no longer unconstitutionally overbroad, since the types of harms captured by paras. (b) through (h) fall squarely within the legislative intent underlying the section. In light of the presumption that the legislature intended to act in accordance with the constitution, it is appropriate to adopt this interpretation of s.13(1)(a). Thus, the subsection should be understood as covering the situations captured by paras. 13(1)(b) through (h), and any analogous situations that mightwould also like to quote the following observations from State of Jharkhand and Another v. Govind Singh, 2005(1) R.C.R.(Criminal) 189 : (2005) 10 SCCWhile interpreting a provision the court only interprets the law and cannot legislate it. If a provision of law is misused and subjected to the abuse deemed necessary. [See CST v. Popular Trading C. : (2000) 5 SCC 511 : AIR 2000 SC 1578 ] . The legislative casus omissus cannot be supplied by judicial interpretativefollowing passages from the judgment of this Court in Commissioner of Income Tax, Bangalore v. J.H Yadagiri, (1985) 4 SCC 343 shed light of similar nature.In the case of K.P. Varghese v. IT0 [(1981) 4 SCC 173 : 1981 SCC (Tax) 293 : (1981) 131 ITR 597 ] this Court emphasised that a statutory provision must be so construed, if possible, that absurdity and mischief may be avoided." | 0 | 23,854 | 5,354 | ### Instruction:
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practices need to be indicted and suitably punished. It is for this reason that the Act contains penal provisions for penalising such offenders. At the same time, the penalty cannot be disproportionate and it should not lead to shocking results. That is the implication of the doctrine of proportionality which is based on equity and rationality. It is, in fact, a constitutionally protected right which can be traced to Article 14 as well as Article 21 of the Constitution. The doctrine of proportionality is aimed at bringing out `proportional result or proportionality stricto sensu. It is a result oriented test as it examines the result of the law in fact the proportionality achieves balancing between two competing interests: harm caused to the society by the infringer which gives justification for penalising the infringer on the one hand and the right of the infringer in not suffering the punishment which may be disproportionate to the seriousness of the Act. No doubt, the aim of the penal provision is also to ensure that it acts as deterrent for others. At the same time, such a position cannot be countenanced which would deviate from `teaching a lesson to the violators and lead to the `death of the entity itself. If we adopt the criteria of total turnover of a company by including within its sweep the other products manufactured by the company, which were in no way connected with anti-competitive activity, it would bring about shocking results not comprehended in a country governed by Rule of Law. Cases at hand itself amply demonstrate that the CCIs contention, if accepted, would bring about anomalous results. In the case of M/s. Excel Crop Care Limited, average of three years turnover in respect of APT, in respect whereof anti-competitive agreement was entered into by the appellants, was only 32.41 crores. However, as against this, the CCI imposed penalty of Rs. 63.90 crores by adopting the criteria of total turnover of the said company with the inclusion of turnover of the other products as well. Likewise, UPL was imposed penalty of 252.44 crores by the CCI as against average of the three years turnover of APT of Rs. 77.14 crores. Thus, even when the matter is looked into from this angle, we arrive at a conclusion that it is the relevant turnover, i.e., turnover of the particular product which is to be taken into consideration and not total turnover of the violator. (vii) The doctrine of `purposive interpretation may again lean in favour of `relevant turnover as the appropriate yardstick for imposition of penalties. It is for this reason the judgment of Competition Appeal Court of South Africa in the Southern Pipeline Contractors Conrite Walls, as quoted above, becomes relevant in Indian context as well inasmuch as this Court has also repeatedly used same principle of interpretation. It needs to be repeated that there is a legislative link between the damage caused and the profits which accrue from the cartel activity. There has to be a relationship between the nature of offence and the benefit derived therefrom and once this co-relation is kept in mind, while imposing the penalty, it is the affected turnover, i.e., `relevant turnover that becomes the yardstick for imposing such a penalty. In this hue, doctrine of `purposive interpretation as well as that of `proportionality overlaps. In fact, some justifications have already appeared in this behalf while discussing the matter on the application of doctrine of proportionality. What needs to be repeated is only that the purpose and objective behind the Act is to discourage and stop anti-competitive practice. Penal provision contained in Section 27 of the Act serves this purpose as it is aimed at achieving the objective of punishing the offender and acts as deterrent to others. Such a purpose can adequately be served by taking into consideration the relevant turnover. It is in the public interest as well as in the interest of national economy that industries thrive in this country leading to maximum production. Therefore, it cannot be said that purpose of the Act is to `finish those industries altogether by imposing those kinds of penalties which are beyond their means. It is also the purpose of the Act not to punish the violator even in respect of which there are no anti-competitive practices and the provisions of the Act are not attracted. We may mention that Mr. Kaul, learned Additional Solicitor General had referred to the statutory regimes in various other countries in his endeavour to demonstrate that it is the concept of total turnover which was recognised in other jurisdictions as well. The attempt was to show that the principle of `total turnover was prevalent across the globe wherever such laws are enforced. On the contrary, the learned counsel for the appellants pointed out the provision contained in similar statutes of some countries where the concept of relevant turnover had been adopted. South Africa is one such example and, in fact, COMPAT has referred to the judgment of Southern African Competition Appeal Court in this behalf, i.e., Southern Pipeline Contractors Conrite Walls (Pty) Ltd. case. In such a scenario, it may not be necessary to deal with the statutory provisions contained in different countries. In view of interpretation that is given by us to the provision at hand, we would, however, like to comment that in some of the jurisdictions cited by Mr. Kaul, learned Additional Solicitor General, the guidelines are also framed which ensure that the penalty does not become disproportionate, for example, in the UK, the Office of Fair Trade (OFT) has `guidelines as to the appropriate amount of penalty. In contrast, there are no similar guidelines issued as far as India is concerned and in the absence thereof imposition of penalty, taking into consideration total turnover, may bring about disastrous results which happened in the instant case itself with the imposition of penalty by the CCI.Thus, we do not find any error in the approach of the order of the COMPAT interpreting Section 27(b).
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the three suppliers is different, strange coincidence of identical pricing is found, that too repeatedly;(e) profit margins would be different, still quotations are same; and(f) to different parties in respect of different tenders, different rates are quoted. Still whatever price is quoted in respect of one particular tender, that is identical. It would be too much of a coincidence, difficult toappellants.46. The conditions which are perceived as `onerous by these appellants are theEarnest money deposit was raised from `10 lakhs to `30 lakhs.3) Supply required as per this standard was 75 MT per month which was too high a demand/requirement and it was difficult to effect supplies of this magnitude every month.Sandhya Organics Chemicals (P) Ltd. additionally submitted that they had placed on record that their production capacity was much less and supplying 75 MT of APT every month was beyond their means. Therefore, they were unable to tender against the said NIT. Before the COMPAT, M/s. Excel Crop Care Limited attempted to project their bona fides by showing that they had even written letter dated May 26, 2011 to the FCI conveying their inability to take part in thatarriving at this conclusion, we are influenced by the following reasons:(a) Under Section 27(b) of the Act, penalty can be imposed under two contingencies, namely, where an agreement referred to in Section 3 is anti-competitive or where an enterprise which enjoys a dominant position misuses the said dominant position thereby contravening the provisions of Section 4. In case where the violation or contravention is of Section 3 of the Act it has to be pursuant to an `agreement. Such an agreement may relate to a particular product between persons or enterprises even when such persons or enterprises are having production in more than one product. There may be a situation, which is precisely in the instant case, that some of such enterprises may be multi-product companies and some may be single product in respect of which the agreement is arrived at. If the concept of total turnover is introduced it may bring out very inequitable results. This precisely happened in this case when CCI imposed the penalty of 9% on the total turnover which has already been demonstrated above.(b) Interpretation which brings out such inequitable or absurd results has to be eschewed. This fundamental principle of interpretation has been repeatedly made use of to avoid inequitable outcomes. The Canadian Supreme Court in Ontario v. Canadian Pacific Ltd., (1995) 2 SCR 1031 wherein the expression `use occurring in Environment Protection Act was given restricted meaning. The principle that absurdity should be avoided was explained in the followingexpression "for any use that can be made of the natural environment has an identifiable literal or "plain" meaning when viewed in the context of the EPA as a whole, particularly the other paragraphs of s. 13(1). When the terms of the other paragraphs are taken into account, it can be concluded that the literal meaning of the expression "for any use that can be made of the natural environment" is "any use that can conceivably be made of the natural environment by any person or other living creature". In ordinary circumstances, once the "plain meaning" of the words in a statue have been identified there is no need for further interpretation. Different considerations can apply, however, in cases where a statute would be unconstitutional if interpreted literally. This is one of those exception cases, in that a literal interpretation of s. 13(1)(a) would fail to meet the test for overbreadth established in Heywood. The state objective underlying s. 13(1)(a) EPA is, as s. 2 of the Act declares, "the protection and conservation of the natural environment". This legislative purpose, while broad, is not without limits. In particular, the legislative interest in safeguarding the environment for "uses" requires only that it be preserved for those "uses" that are normal and typical, or that are likely to become normal or typical in the future. Interpreted literally, s. 13(1)(a) would capture a wide range of activities that fall outside the scope of the legislative purpose underlying it, and would fail to meet s.7 overbreadth scrutiny. There is, however, an alternative interpretation of s.13(1)(a) that renders it constitutional. Section 13(1)(a) can be read as expressing the general intention of s. 13(1) as a whole, and paras. 13(1)(b) through (h) can be treated as setting out specific examples of "impairment(s) of the quality of the natural environment for any use that can be made of it". When viewed in this way, the restrictions place on the word "use" in paras. (b) through (h) can be seen as imported into (a) through a variant of the ejusdem generis princile. Interpreted in this manner, s.13(1)(a) is no longer unconstitutionally overbroad, since the types of harms captured by paras. (b) through (h) fall squarely within the legislative intent underlying the section. In light of the presumption that the legislature intended to act in accordance with the constitution, it is appropriate to adopt this interpretation of s.13(1)(a). Thus, the subsection should be understood as covering the situations captured by paras. 13(1)(b) through (h), and any analogous situations that mightwould also like to quote the following observations from State of Jharkhand and Another v. Govind Singh, 2005(1) R.C.R.(Criminal) 189 : (2005) 10 SCCWhile interpreting a provision the court only interprets the law and cannot legislate it. If a provision of law is misused and subjected to the abuse deemed necessary. [See CST v. Popular Trading C. : (2000) 5 SCC 511 : AIR 2000 SC 1578 ] . The legislative casus omissus cannot be supplied by judicial interpretativefollowing passages from the judgment of this Court in Commissioner of Income Tax, Bangalore v. J.H Yadagiri, (1985) 4 SCC 343 shed light of similar nature.In the case of K.P. Varghese v. IT0 [(1981) 4 SCC 173 : 1981 SCC (Tax) 293 : (1981) 131 ITR 597 ] this Court emphasised that a statutory provision must be so construed, if possible, that absurdity and mischief may be avoided."
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Vijay Vs. Laxman | of the complainant who failed to establish that the cheque in fact had been issued by the respondent towards repayment of personal loan since the complaint was lodged by the complainant without even specifying the date on which the loan was advanced nor the complaint indicates the date of its lodgement as the date column indicates nil although as per the complainants own story, the respondent had assured the complainant that he will return the money within two months for which he had issued a post-dated cheque No.119582 dated 14.8.2007 amounting to Rs.1,15,000/- drawn on Vikramaditya Nagrik Sahkari Bank Ltd., Ujjain. Further case of the complainant is that when the cheque was presented in the bank on 14.8.2007 for getting it deposited in his savings account No.1368 in Vikarmaditya Nagrik Sahkari Bank Ltd. Fazalpura, Ujjain, the said cheque was returned being dishonoured by the bank with a note insufficient amount on 14.8.2007. In the first place, the respondent-accused is alleged to have issued a post-dated cheque dated 14.8.2007 but the complainant/appellant has conveniently omitted to mention the date on which the loan was advanced which is fatal to the complainants case as from this vital omission it can reasonably be inferred that the cheque was issued on 14.8.2007 and was meant to be encashed at a later date within two months from the date of issuance which was 14.8.2007. But it is evident that the cheque was presented before the bank on the date of issuance itself which was 14.8.2007 and on the same date i.e. 14.8.2007, a written memo was received by the complainant indicating insufficient fund. In the first place if the cheque was towards repayment of the loan amount, the same was clearly meant to be encashed at a later date within two months or at least a little later than the date on which the cheque was issued: If the cheque was issued towards repayment of loan it is beyond comprehension as to why the cheque was presented by the complainant on the same date when it was issued and the complainant was also lodged without specifying on which date the amount of loan was advanced as also the date on which compliant was lodged as the date is conveniently missing. Under the background that just one day prior to 14.8.2007 i.e. 13.8.2007 an altercation had taken place between the respondent-accused and the complainant-dairy owner for which a case also had been lodged by the respondent-accused against the complainants father/dairy owner, missing of the date on which loan was advanced and the date on which complaint was lodged, casts a serious doubt on the complainants plea. It is, therefore, difficult to appreciate as to why the cheque which even as per the case of the complainant was towards repayment of loan which was meant to be encashed within two months, was deposited on the date of issuance itself. The complainant thus has miserably failed to prove his case that the cheque was issued towards discharge of a lawful debt and it was meant to be encashed on the same date when it was issued specially when the complainant has failed to disclose the date on which the alleged amount was advanced to the Respondent/Accused. There are thus glaring inconsistencies indicating gaping hole in the complainants version that the cheque although had been issued, the same was also meant to be encashed instantly on the same date when it was issued. 14. Thus, we are of the view that although the cheque might have been duly obtained from its lawful owner i.e. the respondent-accused, it was used for unlawful reason as it appears to have been submitted for encashment on a date when it was not meant to be presented as in that event the respondent would have had no reason to ask for a loan from the complainant if he had the capacity to discharge the loan amount on the date when the cheque had been issued. In any event, it leaves the complainants case in the realm of grave doubt on which the case of conviction and sentence cannot be sustained. 15. Thus, in the light of the evidence on record indicating grave weaknesses in the complainants case, we are of the view that the High Court has rightly set aside the findings recorded by the Courts below and consequently set aside the conviction and sentence since there were glaring inconsistencies in the complainants case giving rise to perverse findings resulting into unwarranted conviction and sentence of the respondent. In fact, the trial court as also the first appellate court of facts seems to have missed the important ingredients of Sections 118 (a) and 139 of the N.I. Act which made it incumbent on the courts below to examine the defence evidence of rebuttal as to whether the respondent/accused discharged his burden to disprove the complainants case and recorded the finding only on the basis of the complainants version. On scrutiny of the evidence which we did to avoid unwarranted conviction and miscarriage of justice, we have found that the High Court has rightly overruled the decision of the courts below which were under challenge as the trial court as also the 1st Appellate Court misdirected itself by ignoring the defence version which succeeded in dislodging the complainants case on the strength of convincing evidence and thus discharged the burden envisaged under Sections 118 (a) and 139 of the N.I. Act which although speaks of presumption in favour of the holder of the cheque, it has included the provisos by incorporating the expressions until the contrary is proved and unless the contrary is proved which are the riders imposed by the Legislature under the aforesaid provisions of Sections 118 and 139 of the N.I. Act as the Legislature chooses to provide adequate safeguards in the Act to protect honest drawers from unnecessary harassment but this does not preclude the person against whom presumption is drawn from rebutting it and proving to the contrary. 16. Consequently, | 0[ds]in spite of the admitted signature of the respondent-accused on the cheque, it was not available to the respondent-accused to deny the fact that he had not issued the cheque in favour of the complainant for once the signature on the cheque is admitted and the same had been returned on account of insufficient funds, the offence under Section 138 of the Act will clearly be held to have been made out and it was not open for the respondent-accused to urge that although the cheque had been dishonoured, no offence under the Act is made out. Reliance placed by learned counsel for the complainant-appellant on the authority of this Court in the matter of K.N. Beena vs. Muniyappan And Anr. [2001 (7) Scale 331 ] adds sufficient weight to the plea of the complainant-appellant that the burden of proving the consideration for dishonour of the cheque is not on the complainant-appellant, but the burden of proving that a cheque had not been issued for discharge of a lawful debt or a liability is on the accused and if he fails to discharge such burden, he is liable to be convicted for the offence under the Act. Thus, the contention of the counsel for the appellant that it is the respondent-accused (since acquitted) who should have discharged the burden that the cheque was given merely by way of security, lay upon the Respondent/ accused to establish that the cheque was not meant to be encashed by the complainant since respondent had already supplied the milk towards the amount. But then the question remains whether the High Court was justified in holding that the respondent had succeeded in proving his case that the cheque was merely by way of security deposit which should not have been encashed in the facts and circumstances of the case since inaction to do so was bound to result into conviction and sentence of the Respondent/Accusedwe are of the view that although the cheque might have been duly obtained from its lawful owner i.e. the respondent-accused, it was used for unlawful reason as it appears to have been submitted for encashment on a date when it was not meant to be presented as in that event the respondent would have had no reason to ask for a loan from the complainant if he had the capacity to discharge the loan amount on the date when the cheque had been issued. In any event, it leaves the complainants case in the realm of grave doubt on which the case of conviction and sentence cannot be sustainedthe High Court has rightly set aside the findings recorded by the Courts below and consequently set aside the conviction and sentence since there were glaring inconsistencies in the complainants case giving rise to perverse findings resulting into unwarranted conviction and sentence of the respondent. In fact, the trial court as also the first appellate court of facts seems to have missed the important ingredients of Sections 118 (a) and 139 of the N.I. Act which made it incumbent on the courts below to examine the defence evidence of rebuttal as to whether the respondent/accused discharged his burden to disprove the complainants case and recorded the finding only on the basis of the complainants version. On scrutiny of the evidence which we did to avoid unwarranted conviction and miscarriage of justice, we have found that the High Court has rightly overruled the decision of the courts below which were under challenge as the trial court as also the 1st Appellate Court misdirected itself by ignoring the defence version which succeeded in dislodging the complainants case on the strength of convincing evidence and thus discharged the burden envisaged under Sections 118 (a) and 139 of the N.I. Act which although speaks of presumption in favour of the holder of the cheque, it has included the provisos by incorporating the expressions until the contrary is proved and unless the contrary is proved which are the riders imposed by the Legislature under the aforesaid provisions of Sections 118 and 139 of the N.I. Act as the Legislature chooses to provide adequate safeguards in the Act to protect honest drawers from unnecessary harassment but this does not preclude the person against whom presumption is drawn from rebutting it and proving to the contrarythe absence of any details of the date on which the loan was advanced as also the absence of any documentary or other evidence to show that any such loan transaction had indeed taken place between the parties is a significant circumstance. So also the fact that the cheque was presented on the day following the altercation between the parties is a circumstance that cannot be brushed away. The version of the respondent that the cheque was not returned to him and the complainant presented the same to wreak vengeance against him is a circumstance that cannot be easily rejected. Super added to all this is the testimony of DW1, Jeevan Guru according to whom the accounts were settled between the father of the complainant and the accused in his presence and upon settlement the accused had demanded return of this cheque given in lieu of the advance. It was further stated by the witness that the complainants father had avoided to return the cheque and promised to do so on some other day. There is no reason much less a cogent one suggested to us for rejecting the deposition of this witness who has testified that after the incident of altercation between the two parties the accused has been supplying milk to the witness as he is also in the same business. Non- examination of the father of the complainant who was said to be present outside the Court hall on the date the complainants statement was recorded also assumes importance. It gives rise to an inference that the non-examination was a deliberate attempt of the prosecution to keep him away from the court for otherwise he would have to accept that the accused was actually supplying milk to him and that the accused was given the price of the milk in advance as per the trade practice in acknowledgement and by way of security for which amount the accused had issued a cheque in question | 0 | 3,280 | 1,091 | ### 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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of the complainant who failed to establish that the cheque in fact had been issued by the respondent towards repayment of personal loan since the complaint was lodged by the complainant without even specifying the date on which the loan was advanced nor the complaint indicates the date of its lodgement as the date column indicates nil although as per the complainants own story, the respondent had assured the complainant that he will return the money within two months for which he had issued a post-dated cheque No.119582 dated 14.8.2007 amounting to Rs.1,15,000/- drawn on Vikramaditya Nagrik Sahkari Bank Ltd., Ujjain. Further case of the complainant is that when the cheque was presented in the bank on 14.8.2007 for getting it deposited in his savings account No.1368 in Vikarmaditya Nagrik Sahkari Bank Ltd. Fazalpura, Ujjain, the said cheque was returned being dishonoured by the bank with a note insufficient amount on 14.8.2007. In the first place, the respondent-accused is alleged to have issued a post-dated cheque dated 14.8.2007 but the complainant/appellant has conveniently omitted to mention the date on which the loan was advanced which is fatal to the complainants case as from this vital omission it can reasonably be inferred that the cheque was issued on 14.8.2007 and was meant to be encashed at a later date within two months from the date of issuance which was 14.8.2007. But it is evident that the cheque was presented before the bank on the date of issuance itself which was 14.8.2007 and on the same date i.e. 14.8.2007, a written memo was received by the complainant indicating insufficient fund. In the first place if the cheque was towards repayment of the loan amount, the same was clearly meant to be encashed at a later date within two months or at least a little later than the date on which the cheque was issued: If the cheque was issued towards repayment of loan it is beyond comprehension as to why the cheque was presented by the complainant on the same date when it was issued and the complainant was also lodged without specifying on which date the amount of loan was advanced as also the date on which compliant was lodged as the date is conveniently missing. Under the background that just one day prior to 14.8.2007 i.e. 13.8.2007 an altercation had taken place between the respondent-accused and the complainant-dairy owner for which a case also had been lodged by the respondent-accused against the complainants father/dairy owner, missing of the date on which loan was advanced and the date on which complaint was lodged, casts a serious doubt on the complainants plea. It is, therefore, difficult to appreciate as to why the cheque which even as per the case of the complainant was towards repayment of loan which was meant to be encashed within two months, was deposited on the date of issuance itself. The complainant thus has miserably failed to prove his case that the cheque was issued towards discharge of a lawful debt and it was meant to be encashed on the same date when it was issued specially when the complainant has failed to disclose the date on which the alleged amount was advanced to the Respondent/Accused. There are thus glaring inconsistencies indicating gaping hole in the complainants version that the cheque although had been issued, the same was also meant to be encashed instantly on the same date when it was issued. 14. Thus, we are of the view that although the cheque might have been duly obtained from its lawful owner i.e. the respondent-accused, it was used for unlawful reason as it appears to have been submitted for encashment on a date when it was not meant to be presented as in that event the respondent would have had no reason to ask for a loan from the complainant if he had the capacity to discharge the loan amount on the date when the cheque had been issued. In any event, it leaves the complainants case in the realm of grave doubt on which the case of conviction and sentence cannot be sustained. 15. Thus, in the light of the evidence on record indicating grave weaknesses in the complainants case, we are of the view that the High Court has rightly set aside the findings recorded by the Courts below and consequently set aside the conviction and sentence since there were glaring inconsistencies in the complainants case giving rise to perverse findings resulting into unwarranted conviction and sentence of the respondent. In fact, the trial court as also the first appellate court of facts seems to have missed the important ingredients of Sections 118 (a) and 139 of the N.I. Act which made it incumbent on the courts below to examine the defence evidence of rebuttal as to whether the respondent/accused discharged his burden to disprove the complainants case and recorded the finding only on the basis of the complainants version. On scrutiny of the evidence which we did to avoid unwarranted conviction and miscarriage of justice, we have found that the High Court has rightly overruled the decision of the courts below which were under challenge as the trial court as also the 1st Appellate Court misdirected itself by ignoring the defence version which succeeded in dislodging the complainants case on the strength of convincing evidence and thus discharged the burden envisaged under Sections 118 (a) and 139 of the N.I. Act which although speaks of presumption in favour of the holder of the cheque, it has included the provisos by incorporating the expressions until the contrary is proved and unless the contrary is proved which are the riders imposed by the Legislature under the aforesaid provisions of Sections 118 and 139 of the N.I. Act as the Legislature chooses to provide adequate safeguards in the Act to protect honest drawers from unnecessary harassment but this does not preclude the person against whom presumption is drawn from rebutting it and proving to the contrary. 16. Consequently,
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admitted and the same had been returned on account of insufficient funds, the offence under Section 138 of the Act will clearly be held to have been made out and it was not open for the respondent-accused to urge that although the cheque had been dishonoured, no offence under the Act is made out. Reliance placed by learned counsel for the complainant-appellant on the authority of this Court in the matter of K.N. Beena vs. Muniyappan And Anr. [2001 (7) Scale 331 ] adds sufficient weight to the plea of the complainant-appellant that the burden of proving the consideration for dishonour of the cheque is not on the complainant-appellant, but the burden of proving that a cheque had not been issued for discharge of a lawful debt or a liability is on the accused and if he fails to discharge such burden, he is liable to be convicted for the offence under the Act. Thus, the contention of the counsel for the appellant that it is the respondent-accused (since acquitted) who should have discharged the burden that the cheque was given merely by way of security, lay upon the Respondent/ accused to establish that the cheque was not meant to be encashed by the complainant since respondent had already supplied the milk towards the amount. But then the question remains whether the High Court was justified in holding that the respondent had succeeded in proving his case that the cheque was merely by way of security deposit which should not have been encashed in the facts and circumstances of the case since inaction to do so was bound to result into conviction and sentence of the Respondent/Accusedwe are of the view that although the cheque might have been duly obtained from its lawful owner i.e. the respondent-accused, it was used for unlawful reason as it appears to have been submitted for encashment on a date when it was not meant to be presented as in that event the respondent would have had no reason to ask for a loan from the complainant if he had the capacity to discharge the loan amount on the date when the cheque had been issued. In any event, it leaves the complainants case in the realm of grave doubt on which the case of conviction and sentence cannot be sustainedthe High Court has rightly set aside the findings recorded by the Courts below and consequently set aside the conviction and sentence since there were glaring inconsistencies in the complainants case giving rise to perverse findings resulting into unwarranted conviction and sentence of the respondent. In fact, the trial court as also the first appellate court of facts seems to have missed the important ingredients of Sections 118 (a) and 139 of the N.I. Act which made it incumbent on the courts below to examine the defence evidence of rebuttal as to whether the respondent/accused discharged his burden to disprove the complainants case and recorded the finding only on the basis of the complainants version. On scrutiny of the evidence which we did to avoid unwarranted conviction and miscarriage of justice, we have found that the High Court has rightly overruled the decision of the courts below which were under challenge as the trial court as also the 1st Appellate Court misdirected itself by ignoring the defence version which succeeded in dislodging the complainants case on the strength of convincing evidence and thus discharged the burden envisaged under Sections 118 (a) and 139 of the N.I. Act which although speaks of presumption in favour of the holder of the cheque, it has included the provisos by incorporating the expressions until the contrary is proved and unless the contrary is proved which are the riders imposed by the Legislature under the aforesaid provisions of Sections 118 and 139 of the N.I. Act as the Legislature chooses to provide adequate safeguards in the Act to protect honest drawers from unnecessary harassment but this does not preclude the person against whom presumption is drawn from rebutting it and proving to the contrarythe absence of any details of the date on which the loan was advanced as also the absence of any documentary or other evidence to show that any such loan transaction had indeed taken place between the parties is a significant circumstance. So also the fact that the cheque was presented on the day following the altercation between the parties is a circumstance that cannot be brushed away. The version of the respondent that the cheque was not returned to him and the complainant presented the same to wreak vengeance against him is a circumstance that cannot be easily rejected. Super added to all this is the testimony of DW1, Jeevan Guru according to whom the accounts were settled between the father of the complainant and the accused in his presence and upon settlement the accused had demanded return of this cheque given in lieu of the advance. It was further stated by the witness that the complainants father had avoided to return the cheque and promised to do so on some other day. There is no reason much less a cogent one suggested to us for rejecting the deposition of this witness who has testified that after the incident of altercation between the two parties the accused has been supplying milk to the witness as he is also in the same business. Non- examination of the father of the complainant who was said to be present outside the Court hall on the date the complainants statement was recorded also assumes importance. It gives rise to an inference that the non-examination was a deliberate attempt of the prosecution to keep him away from the court for otherwise he would have to accept that the accused was actually supplying milk to him and that the accused was given the price of the milk in advance as per the trade practice in acknowledgement and by way of security for which amount the accused had issued a cheque in question
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Vandana Bidyut Chaterjee Vs. The Union of India, Through The Secretary, Ministry of Finance, Department of Revenue & Others | the above submission he placed reliance upon the decision of the Supreme Court in the matter of Sha Sukraj Peerajee reported in (1968) Vol. XXI Sales Tax Cases Page 521.8 We have considered the submissions. It is an undisputed position that duty and penalty are arrears of the company. It was the company that was the person engaged in manufacture of goods and registered as manufacturer under Section 6 of the said Act and therefore obliged to pay excise duty. Further under the Act and the Rules, the person liable to pay duty is the person who manufactures the goods in terms of Rule 7 of the erstwhile Central Excise Rules, 1944 and Rule 4 of the Central Excise Rules 2002 as now existing. Therefore the obligation to pay duty is on the company. The Affidavit in reply dated 2 February 2011 filed by the Respondents states that the arrears being Rs. 71,68,243/- as excise duty and Rs.25000/- as penalty are dues of the Company. Therefore in terms of Section 142 of the Customs Act, 1962 as made applicable to the Central Excise Act, 1944 by virtue of a Notification issued under Section 12 of Central Excise Act 1944 the Central Government can recover sums due to it from the person who has not paid its dues. It is under Section 142 read with Section 156 of the Customs Act, 1962 that the Recovery Rules 1995 have been framed. In terms of the Recovery Rules 1995, the amounts which can be recovered are only those belonging to a defaulter. A defaulter is defined under the Recovery Rules 1995 as any person from whom government dues are recoverable. It is an undisputed position that in this case that the dues/arrears of excise duty and penalty are that of the Company. Therefore the recovery proceedings under the Recovery Rules, 1995 can be taken only against the company, as it alone is the defaulter. There is no provision to recover the arrears of the company from its Directors and or/shareholders under the said Act. The arrears of dues belonging to a limited company are recoverable only from the limited company concerned which is an independent entity in law, particularly so, as it obtains a separate registration under the Act. Therefore in terms of the Recovery Rules 1995, the dues can be recovered only from the limited company. There is no provision in the said Act as is found under Section 179 of the Income Tax 1961 or under Section 18 of the Central Sales Tax Act, 1956 where the dues of a private limited company can be recovered from its Directors when the private limited company is under liquidation, in specific circumstances. It is a well settled position in law that a Company incorporated under the Companies Act, 1956 is a separate person having a distinct independent identity, independent from its shareholders and Directors. Consequently, the dues of the company cannot be recovered from the Directors and/or individual shareholder of the company. Further, it is pertinent to note that it is not the case of the Respondents that they are seeking to lift the Corporate veil of the said company to establish that the said company was a mere shell and being utilized to defraud the revenue of its legitimate dues. Further the case of lifting the corporate veil, if any, was to be made out at the time notices of demand were issued to the said company by making the Directors/shareholders liable to pay the dues and the same being confirmed by the authorities under the said Act. Once it is an admitted position between the parties that the arrears of duty and penalty are those of the said Company then the notices issued under the Recovery Rules 1995 to its former Director the late Balram P Mukherjee and his daughter the Petitioner herein to whom the said property has been gifted, are completely without jurisdiction. We are fortified in the view taken by us by two decisions of the Division Bench of this Honble Court in Sunil Parmeshwar Mittal reported in 2005(188) E.L.T. 268 (Bombay) and SatishD. Sanghavi in its order Writ Petition No. 2087 of 2006 dated 22 September 2009 where on similar facts it has been held that arrears of duty payable by a limited company cannot be recovered from its Director. Further, the reliance of the Respondents upon an agreement dated 21 March 2000 between Kapoor family and the Mukherjee brothers whereby all the shareholding of Kapoor family in the said company was transferred to Mukherjee brothers and under which the Mukherjee Brothers accepted their responsibility to discharge the Central Excise Liability in support of its case that the dues of the said company can be recovered from the late Balram P Mukherjee and/or his estate is not sustainable. Mr. Sridharan invited our attention to a decision of the Supreme Court in the matter of Deputy Commercial Tax Officer, Park Town Division, Madras and another Vs. Sha Sukraj Peerajee reported in (1968) Vol. XXI Sales Tax Cases Page 5 wherein the Supreme Court observed as under :But even on the assumption that the respondent undertook to pay the arrears of sales tax due by the transferor, it does not follow that there is a liability created inter se between the State Government on the one hand and the transferee on the other hand. To put it differently, it is not open to the State government to rely on the instrument inter vivos between the transferor and the transferee and to contend that there is any contractual obligation between the transferee and the state government who is not a party to the instrument. We accordingly reject the argument of the appellant on this aspect of the case also.Consequently the reliance of the Respondent upon the agreement dated 21 March 2000 between Kapoor family and Mukherjee Brothers to fasten the liability of excise duty and penalty arrears of the said company upon the late Balram P Mukherjee is not sustainable. | 1[ds]8 We have considered the submissions. It is an undisputed position that duty and penalty are arrears of the company. It was the company that was the person engaged in manufacture of goods and registered as manufacturer under Section 6 of the said Act and therefore obliged to pay excise duty. Further under the Act and the Rules, the person liable to pay duty is the person who manufactures the goods in terms of Rule 7 of the erstwhile Central Excise Rules, 1944 and Rule 4 of the Central Excise Rules 2002 as now existing. Therefore the obligation to pay duty is on the company. The Affidavit in reply dated 2 February 2011 filed by the Respondents states that the arrears being Rs. 71,68,243/as excise duty and Rs.25000/as penalty are dues of the Company. Therefore in terms of Section 142 of the Customs Act, 1962 as made applicable to the Central Excise Act, 1944 by virtue of a Notification issued under Section 12 of Central Excise Act 1944 the Central Government can recover sums due to it from the person who has not paid its dues. It is under Section 142 read with Section 156 of the Customs Act, 1962 that the Recovery Rules 1995 have been framed. In terms of the Recovery Rules 1995, the amounts which can be recovered are only those belonging to a defaulter. A defaulter is defined under the Recovery Rules 1995 as any person from whom government dues are recoverable. It is an undisputed position that in this case that the dues/arrears of excise duty and penalty are that of the Company. Therefore the recovery proceedings under the Recovery Rules, 1995 can be taken only against the company, as it alone is the defaulter. There is no provision to recover the arrears of the company from its Directors and or/shareholders under the said Act. The arrears of dues belonging to a limited company are recoverable only from the limited company concerned which is an independent entity in law, particularly so, as it obtains a separate registration under the Act. Therefore in terms of the Recovery Rules 1995, the dues can be recovered only from the limited company. There is no provision in the said Act as is found under Section 179 of the Income Tax 1961 or under Section 18 of the Central Sales Tax Act, 1956 where the dues of a private limited company can be recovered from its Directors when the private limited company is under liquidation, in specific circumstances. It is a well settled position in law that a Company incorporated under the Companies Act, 1956 is a separate person having a distinct independent identity, independent from its shareholders and Directors. Consequently, the dues of the company cannot be recovered from the Directors and/or individual shareholder of the company. Further, it is pertinent to note that it is not the case of the Respondents that they are seeking to lift the Corporate veil of the said company to establish that the said company was a mere shell and being utilized to defraud the revenue of its legitimate dues. Further the case of lifting the corporate veil, if any, was to be made out at the time notices of demand were issued to the said company by making the Directors/shareholders liable to pay the dues and the same being confirmed by the authorities under the said Act. Once it is an admitted position between the parties that the arrears of duty and penalty are those of the said Company then the notices issued under the Recovery Rules 1995 to its former Director the late Balram P Mukherjee and his daughter the Petitioner herein to whom the said property has been gifted, are completely without jurisdiction. We are fortified in the view taken by us by two decisions of the Division Bench of this Honble Court in Sunil Parmeshwar Mittal reported in 2005(188) E.L.T. 268 (Bombay) and SatishD. Sanghavi in its order Writ Petition No. 2087 of 2006 dated 22 September 2009 where on similar facts it has been held that arrears of duty payable by a limited company cannot be recovered from its Director. Further, the reliance of the Respondents upon an agreement dated 21 March 2000 between Kapoor family and the Mukherjee brothers whereby all the shareholding of Kapoor family in the said company was transferred to Mukherjee brothers and under which the Mukherjee Brothers accepted their responsibility to discharge the Central Excise Liability in support of its case that the dues of the said company can be recovered from the late Balram P Mukherjee and/or his estate is not sustainable. Mr. Sridharan invited our attention to a decision of the Supreme Court in the matter of Deputy Commercial Tax Officer, Park Town Division, Madras and another Vs. Sha Sukraj Peerajee reported in (1968) Vol. XXI Sales Tax Cases Page 5 wherein the Supreme Court observed as under :But even on the assumption that the respondent undertook to pay the arrears of sales tax due by the transferor, it does not follow that there is a liability created inter se between the State Government on the one hand and the transferee on the other hand. To put it differently, it is not open to the State government to rely on the instrument inter vivos between the transferor and the transferee and to contend that there is any contractual obligation between the transferee and the state government who is not a party to the instrument. We accordingly reject the argument of the appellant on this aspect of the case also.Consequently the reliance of the Respondent upon the agreement dated 21 March 2000 between Kapoor family and Mukherjee Brothers to fasten the liability of excise duty and penalty arrears of the said company upon the late Balram P Mukherjee is not sustainable. | 1 | 3,478 | 1,039 | ### Instruction:
Forecast the likely verdict of the case (granting (1) or denying (0) the appeal) and then rationalize your prediction by pinpointing and explaining pivotal sentences in the case document.
### Input:
the above submission he placed reliance upon the decision of the Supreme Court in the matter of Sha Sukraj Peerajee reported in (1968) Vol. XXI Sales Tax Cases Page 521.8 We have considered the submissions. It is an undisputed position that duty and penalty are arrears of the company. It was the company that was the person engaged in manufacture of goods and registered as manufacturer under Section 6 of the said Act and therefore obliged to pay excise duty. Further under the Act and the Rules, the person liable to pay duty is the person who manufactures the goods in terms of Rule 7 of the erstwhile Central Excise Rules, 1944 and Rule 4 of the Central Excise Rules 2002 as now existing. Therefore the obligation to pay duty is on the company. The Affidavit in reply dated 2 February 2011 filed by the Respondents states that the arrears being Rs. 71,68,243/- as excise duty and Rs.25000/- as penalty are dues of the Company. Therefore in terms of Section 142 of the Customs Act, 1962 as made applicable to the Central Excise Act, 1944 by virtue of a Notification issued under Section 12 of Central Excise Act 1944 the Central Government can recover sums due to it from the person who has not paid its dues. It is under Section 142 read with Section 156 of the Customs Act, 1962 that the Recovery Rules 1995 have been framed. In terms of the Recovery Rules 1995, the amounts which can be recovered are only those belonging to a defaulter. A defaulter is defined under the Recovery Rules 1995 as any person from whom government dues are recoverable. It is an undisputed position that in this case that the dues/arrears of excise duty and penalty are that of the Company. Therefore the recovery proceedings under the Recovery Rules, 1995 can be taken only against the company, as it alone is the defaulter. There is no provision to recover the arrears of the company from its Directors and or/shareholders under the said Act. The arrears of dues belonging to a limited company are recoverable only from the limited company concerned which is an independent entity in law, particularly so, as it obtains a separate registration under the Act. Therefore in terms of the Recovery Rules 1995, the dues can be recovered only from the limited company. There is no provision in the said Act as is found under Section 179 of the Income Tax 1961 or under Section 18 of the Central Sales Tax Act, 1956 where the dues of a private limited company can be recovered from its Directors when the private limited company is under liquidation, in specific circumstances. It is a well settled position in law that a Company incorporated under the Companies Act, 1956 is a separate person having a distinct independent identity, independent from its shareholders and Directors. Consequently, the dues of the company cannot be recovered from the Directors and/or individual shareholder of the company. Further, it is pertinent to note that it is not the case of the Respondents that they are seeking to lift the Corporate veil of the said company to establish that the said company was a mere shell and being utilized to defraud the revenue of its legitimate dues. Further the case of lifting the corporate veil, if any, was to be made out at the time notices of demand were issued to the said company by making the Directors/shareholders liable to pay the dues and the same being confirmed by the authorities under the said Act. Once it is an admitted position between the parties that the arrears of duty and penalty are those of the said Company then the notices issued under the Recovery Rules 1995 to its former Director the late Balram P Mukherjee and his daughter the Petitioner herein to whom the said property has been gifted, are completely without jurisdiction. We are fortified in the view taken by us by two decisions of the Division Bench of this Honble Court in Sunil Parmeshwar Mittal reported in 2005(188) E.L.T. 268 (Bombay) and SatishD. Sanghavi in its order Writ Petition No. 2087 of 2006 dated 22 September 2009 where on similar facts it has been held that arrears of duty payable by a limited company cannot be recovered from its Director. Further, the reliance of the Respondents upon an agreement dated 21 March 2000 between Kapoor family and the Mukherjee brothers whereby all the shareholding of Kapoor family in the said company was transferred to Mukherjee brothers and under which the Mukherjee Brothers accepted their responsibility to discharge the Central Excise Liability in support of its case that the dues of the said company can be recovered from the late Balram P Mukherjee and/or his estate is not sustainable. Mr. Sridharan invited our attention to a decision of the Supreme Court in the matter of Deputy Commercial Tax Officer, Park Town Division, Madras and another Vs. Sha Sukraj Peerajee reported in (1968) Vol. XXI Sales Tax Cases Page 5 wherein the Supreme Court observed as under :But even on the assumption that the respondent undertook to pay the arrears of sales tax due by the transferor, it does not follow that there is a liability created inter se between the State Government on the one hand and the transferee on the other hand. To put it differently, it is not open to the State government to rely on the instrument inter vivos between the transferor and the transferee and to contend that there is any contractual obligation between the transferee and the state government who is not a party to the instrument. We accordingly reject the argument of the appellant on this aspect of the case also.Consequently the reliance of the Respondent upon the agreement dated 21 March 2000 between Kapoor family and Mukherjee Brothers to fasten the liability of excise duty and penalty arrears of the said company upon the late Balram P Mukherjee is not sustainable.
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8 We have considered the submissions. It is an undisputed position that duty and penalty are arrears of the company. It was the company that was the person engaged in manufacture of goods and registered as manufacturer under Section 6 of the said Act and therefore obliged to pay excise duty. Further under the Act and the Rules, the person liable to pay duty is the person who manufactures the goods in terms of Rule 7 of the erstwhile Central Excise Rules, 1944 and Rule 4 of the Central Excise Rules 2002 as now existing. Therefore the obligation to pay duty is on the company. The Affidavit in reply dated 2 February 2011 filed by the Respondents states that the arrears being Rs. 71,68,243/as excise duty and Rs.25000/as penalty are dues of the Company. Therefore in terms of Section 142 of the Customs Act, 1962 as made applicable to the Central Excise Act, 1944 by virtue of a Notification issued under Section 12 of Central Excise Act 1944 the Central Government can recover sums due to it from the person who has not paid its dues. It is under Section 142 read with Section 156 of the Customs Act, 1962 that the Recovery Rules 1995 have been framed. In terms of the Recovery Rules 1995, the amounts which can be recovered are only those belonging to a defaulter. A defaulter is defined under the Recovery Rules 1995 as any person from whom government dues are recoverable. It is an undisputed position that in this case that the dues/arrears of excise duty and penalty are that of the Company. Therefore the recovery proceedings under the Recovery Rules, 1995 can be taken only against the company, as it alone is the defaulter. There is no provision to recover the arrears of the company from its Directors and or/shareholders under the said Act. The arrears of dues belonging to a limited company are recoverable only from the limited company concerned which is an independent entity in law, particularly so, as it obtains a separate registration under the Act. Therefore in terms of the Recovery Rules 1995, the dues can be recovered only from the limited company. There is no provision in the said Act as is found under Section 179 of the Income Tax 1961 or under Section 18 of the Central Sales Tax Act, 1956 where the dues of a private limited company can be recovered from its Directors when the private limited company is under liquidation, in specific circumstances. It is a well settled position in law that a Company incorporated under the Companies Act, 1956 is a separate person having a distinct independent identity, independent from its shareholders and Directors. Consequently, the dues of the company cannot be recovered from the Directors and/or individual shareholder of the company. Further, it is pertinent to note that it is not the case of the Respondents that they are seeking to lift the Corporate veil of the said company to establish that the said company was a mere shell and being utilized to defraud the revenue of its legitimate dues. Further the case of lifting the corporate veil, if any, was to be made out at the time notices of demand were issued to the said company by making the Directors/shareholders liable to pay the dues and the same being confirmed by the authorities under the said Act. Once it is an admitted position between the parties that the arrears of duty and penalty are those of the said Company then the notices issued under the Recovery Rules 1995 to its former Director the late Balram P Mukherjee and his daughter the Petitioner herein to whom the said property has been gifted, are completely without jurisdiction. We are fortified in the view taken by us by two decisions of the Division Bench of this Honble Court in Sunil Parmeshwar Mittal reported in 2005(188) E.L.T. 268 (Bombay) and SatishD. Sanghavi in its order Writ Petition No. 2087 of 2006 dated 22 September 2009 where on similar facts it has been held that arrears of duty payable by a limited company cannot be recovered from its Director. Further, the reliance of the Respondents upon an agreement dated 21 March 2000 between Kapoor family and the Mukherjee brothers whereby all the shareholding of Kapoor family in the said company was transferred to Mukherjee brothers and under which the Mukherjee Brothers accepted their responsibility to discharge the Central Excise Liability in support of its case that the dues of the said company can be recovered from the late Balram P Mukherjee and/or his estate is not sustainable. Mr. Sridharan invited our attention to a decision of the Supreme Court in the matter of Deputy Commercial Tax Officer, Park Town Division, Madras and another Vs. Sha Sukraj Peerajee reported in (1968) Vol. XXI Sales Tax Cases Page 5 wherein the Supreme Court observed as under :But even on the assumption that the respondent undertook to pay the arrears of sales tax due by the transferor, it does not follow that there is a liability created inter se between the State Government on the one hand and the transferee on the other hand. To put it differently, it is not open to the State government to rely on the instrument inter vivos between the transferor and the transferee and to contend that there is any contractual obligation between the transferee and the state government who is not a party to the instrument. We accordingly reject the argument of the appellant on this aspect of the case also.Consequently the reliance of the Respondent upon the agreement dated 21 March 2000 between Kapoor family and Mukherjee Brothers to fasten the liability of excise duty and penalty arrears of the said company upon the late Balram P Mukherjee is not sustainable.
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The Commissioner Of Excessprofits Tax, Madras Vs. N. M. Rayaloo Iyer & Sons | year Extra commission received by the assessee. Amount of commission paid by the assessee.Rs. Rs.1945-46 1,28,533 1,00,7151946-47 3,20,391 2,44,6981947-48 3,15,934 1,28,5061948-49 3,70,964 1,75,07921. This distribution out of the emergency commission to the employees has to be viewed in the context of the following circumstances set out by the Tribunal :(1) that even though the I. C. I. recommended payment to sub-distributors and the assessees had no sub-distributors, they claimed to have paid commission to their employees at rates in excess of the minimum rates recommended by I. C. I.(2) that this commission was paid to the employees in branches in which the annual turnover did not exceed Rs. 1,00,000/- even though the agreements which the assessees had executed expressly provided that the commission was to be paid only if the annual turnover in a branch exceeded Rs. 1 lakh and(3) that the basic salaries of the employees had been substantially increased from time to time and generous dearness allowance and Deepavali bonus were given besides the annual bonus to the employees.22. An analysis of annexure "L" to the supplemental statement of case made by the Tribunal discloses some striking instances of payments to employees. One Themaswamy was paid annually commission varying from Rs. 15,000/- to Rs. 23,000/- when his basic salary was Rs. 2,100/- per annum; one K. N. Rajagopalachari was paid commission varying from Rs. 16,000/- to Rs. 12,000/- when his basic salary was Rs. 1,260/- per annum; one S. L. Radhakrishnan was paid commission varying from Rs. 5,700/- to Rs. 13,000/- when his salary varied between Rs. 516/- and Rs. 636/- per annum and one K. R. Rama Rao was paid commission varying from Rs. 4,600/- to Rs. 10,520/- his salary being Rs. 492/- and later increased to Rs. 612/- per annum.23. There was thus ample evidence in support of the conclusion of the E. P. T. Officer which was confirmed by the Tribunal.As we have already observed, it is the province of the E. P. T. Officer and the Tribunal to assess the permissible deductions in the context of reasonableness and necessity having regard to the requirements of the business and interference with the conclusion is permissible if the view of the Taxing Authorities is vitiated by an error of law or is not based on any materials, or the conclusion is such that no man instructed in law could have arrived at. It is true that in considering whether the deduction claimed by the assessees for payments made as bonus or commission paid to an employee is to be allowed, the taxing officer must have regard to the provisions of S. 10 (2)(x) of the Income Tax Act and cl. (12)of Sch. 1 of the Excess Profits Tax Act; and in assessing the reasonableness, consideration of commercial expediency must undoubtedly be taken into account. But commercial expediency must be viewed in the light of the requirements of the business and the actual services rendered by the persons concerned. Any abstract consideration of commercial expediency is out of place.24. In our view, the High Court was not justified in seeking to reappreciate the evidence on which the conclusion of the E. P. T. Officer which was confirmed by the Tribunal was based. Their jurisdiction being advisory, the High Court had to answer the questions submitted for opinion on the facts found; if the High Court held the view that the taxing authorities had misdirected themselves in law or had made a wrong inference in law or had failed to apply the correct tests or had misconceived the evidence, it was open to them to invite the attention of Taxing Authorities to the error committed by them; but the High Court could not set aside the decision of the taxing Authorities on a reapplication of the evidence. We may also point out that even if the High Court concluded that the total disallowance of the deduction claimed was not justified, the High Court could not substitute its own view as to what was reasonable and necessary. The High Court had, if it disagreed with the taxing authorities, still to answer the questions submitted and leave to the consideration of the E. P. T. Officer what in the circumstances was reasonable and necessary.25. Counsel for the assessees submitted that it any event, the Tribunal having in its supplementary statement of case stated that payment in excess of what was recommended by the I. C. I. was unjustified, this Court may so modify the order of the High Court that deductions of the amounts which were recommended by the I. C. I. may be regarded as permissible deductions. The I. C. I. recommended distribution of a certain percentage out of the emergency commission to the sub-distributors; but in the administrative set up of the assessees, the sub-distributors did not find a place. The assessees carried on their business through paid employees. In terms therefore the recommendation by the I. C. I. had no application to the assessees. It is true that even if the assessees did not carry on the business through sub-distributors, payment made to its employees if reasonable and necessary having regard to the requirements of the business, may still be deductible, but that in our judgment is a matter to be decided by the Taxing Authorities and not by us. The Tribunal had come to the conclusion that no payment in addition to the salary, annual bonus and special bonus was justified and any expression of opinion to the contrary in the supplementary statement pursuant to the order for statement of case could not in our judgment affect the conclusion originally recorded.26. In our view the answer to the question whether the disallowance by the E. P. T. authorities of the commission paid to branch managers was justified under R. 12, Sch. 1, of the Excess Profits Tax Act should have been answered in the affirmative. On the view taken by us. Appeal No. 494/1958 will be allowed, but there will be no order as to costs. | 1[ds]9. In the opinion of the High Court, in computing the taxable income, the deductions claimed by the assessees fell to be considered not under s. 10(2)(xv) of Income-tax Act but properly under S. 10(2)(x) of the Income-tax Act, the latter being a specific provision in the Act relating to deduction of commission or bonus paid to an employee. The High Court observed that in assessing liability to Excess Profits Tax the bonus or commission paid to the employees of the tax payer may be permitted as a deduction in the light of S. 10(2)(x) of the Income-tax Act and R. 12 of Sch. 1 to the Excess Profits Tax Act. The case of Mahadevan, according to the High Court, did not present much difficulty, the only question which fell to be determined in his case being whether in allowing deduction of commission at the rate of 12 1/2% on the net profits, the Excess Profits Tax paid by the assessees was to be taken intoHigh Court after considering the supplementary statement observed that the assessees had undoubtedly distributed substantial sums out of the emergency commission to its managers and assistant mangers in the branches at rates well above the minima recommended by the I. C. I., but the distribution was at rates within the percentages allowed by the I. C. I., as additional commission and the balance retained by the appellants out of the emergency commission was also substantial. In the view of the High Court, the Tribunal had to consider three factors, (1) the reasonableness of the commission in the light of the conditions laid down in S. 10(2)(x), (2) the reasonableness of the percentages above the minima suggested by the I. C. I., and (3) the need for maintaining the reputation of the I. C.I., and the distributor in conditions that prevailed during that period when "black-marketing was rampant", but observed the High Court "the Tribunal had made no real attempt to analyse the evidence before it to justify its conclusion that only the minima recommended by the I. C. I., and nothing in excess satisfied the test of reasonableness under R. 12, Sch. 1, of the Excess Profit Tax Act." They then observed that, whether the test of reasonableness is that prescribed by S. 10(2)(x) of the Income-tax Act or whether reasonableness has to be judged in the light of commercial expediency under R. 12, Sch. 1, of the Excess Profits Tax Act, the expenditure was to be judged from the point of view of a businessman and not by the application of any subjective standard of a taxing officer and that on an analysis of the materials furnished, they were unable to see anything per se unreasonable in the amounts of commission actually paid by the assessees to the branch managers and assistant managers in thethe view of the High Court in determining the "net profits" under the agreement "in accordance with the principles of commercial accountancy and the principles laid down under the Excess Profits Tax Act" the Excess Profits Tax which is a tax on profits could not be deducted. In our judgment the question is one of the true interpretation of the agreement. Mahadevan was under the agreement to receive 12 1/2% commission on the net profits of the colours Trading Co. calculated by deducting from the gross profits of the business the salaries, wages and other outgoings. The expression "outgoings" is not restricted to business or commercial outgoings. The agreement specifically disentitles the employers to make deductions of capital expenditure but there is no indication that the outgoings are to be business outgoings only. There is nothing in the agreement or in the context justifying the view that in the expression outgoings is not included the Excess Profits Tax paid by the assessees.In the case in hand, the Excess Profits Tax Officer held, (a) that the employees of the assessees were being amply remunerated for services rendered by adequate salary, generous dearness allowance and annual bonus equal to the basis salary, (b) that the emolument of the employees had been increased year after year and there was no material to show that the employees had made a persistent demand for increased emoluments, (c) that the commission was credited to the employees account at the end of the year and was carried forward but no payments were made to them, (d) that the agreements which had been produced by the assessees were fabricated with a view to reduce tax liability, and (e) that the expenditure claimed was not proved to have been laid out wholly and exclusively for the purpose of the business. Taking into account these circumstances, the E. P. T. Officer held that the remuneration paid to the employees was adequate and any additional commission paid was in excess of what was reasonable and necessary. The only criticism urged by counsel for the assessees against the grounds given is that the E. P.T. Officer observed that while the net profit according to the Profit and Loss Account of the firm was Rs. 20,487/- leaving a share of Rs. 6,800/- only to each of the partners, some of the managers got more than this amount. It appears that the E. P. T. Officer committed an error in so observing. The profits of the Colours Trading Co. as disclosed by the order of assessment for the year 1945-46 were Rs.99,435/- and not Rs. 20,487/-; but that error did not affect the ultimate conclusion recorded by the E. P. T. Officer. According to the books of account of the assesses for the year 1943-44 of the business in dyes, the profits were Rs. 99,435/- and they claimed to have distributed a commission of Rs. 1,00,715/- to their employees out of the emergency commission, which was prima facie wholly disproportionate to the amount received by them.There was thus ample evidence in support of the conclusion of the E. P. T. Officer which was confirmed by the Tribunal.As we have already observed, it is the province of the E. P. T. Officer and the Tribunal to assess the permissible deductions in the context of reasonableness and necessity having regard to the requirements of the business and interference with the conclusion is permissible if the view of the Taxing Authorities is vitiated by an error of law or is not based on any materials, or the conclusion is such that no man instructed in law could have arrived at. It is true that in considering whether the deduction claimed by the assessees for payments made as bonus or commission paid to an employee is to be allowed, the taxing officer must have regard to the provisions of S. 10 (2)(x) of the Income Tax Act and cl. (12)of Sch. 1 of the Excess Profits Tax Act; and in assessing the reasonableness, consideration of commercial expediency must undoubtedly be taken into account. But commercial expediency must be viewed in the light of the requirements of the business and the actual services rendered by the persons concerned. Any abstract consideration of commercial expediency is out of place.In our view, the High Court was not justified in seeking to reappreciate the evidence on which the conclusion of the E. P. T. Officer which was confirmed by the Tribunal was based. Their jurisdiction being advisory, the High Court had to answer the questions submitted for opinion on the facts found; if the High Court held the view that the taxing authorities had misdirected themselves in law or had made a wrong inference in law or had failed to apply the correct tests or had misconceived the evidence, it was open to them to invite the attention of Taxing Authorities to the error committed by them; but the High Court could not set aside the decision of the taxing Authorities on a reapplication of the evidence. We may also point out that even if the High Court concluded that the total disallowance of the deduction claimed was not justified, the High Court could not substitute its own view as to what was reasonable and necessary. The High Court had, if it disagreed with the taxing authorities, still to answer the questions submitted and leave to the consideration of the E. P. T. Officer what in the circumstances was reasonable and necessary.In our view the answer to the question whether the disallowance by the E. P. T. authorities of the commission paid to branch managers was justified under R. 12, Sch. 1, of the Excess Profits Tax Act should have been answered in the affirmative. On the view taken by us. Appeal No. 494/1958 will be allowed, but there will be no order as to costs. | 1 | 5,838 | 1,604 | ### Instruction:
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year Extra commission received by the assessee. Amount of commission paid by the assessee.Rs. Rs.1945-46 1,28,533 1,00,7151946-47 3,20,391 2,44,6981947-48 3,15,934 1,28,5061948-49 3,70,964 1,75,07921. This distribution out of the emergency commission to the employees has to be viewed in the context of the following circumstances set out by the Tribunal :(1) that even though the I. C. I. recommended payment to sub-distributors and the assessees had no sub-distributors, they claimed to have paid commission to their employees at rates in excess of the minimum rates recommended by I. C. I.(2) that this commission was paid to the employees in branches in which the annual turnover did not exceed Rs. 1,00,000/- even though the agreements which the assessees had executed expressly provided that the commission was to be paid only if the annual turnover in a branch exceeded Rs. 1 lakh and(3) that the basic salaries of the employees had been substantially increased from time to time and generous dearness allowance and Deepavali bonus were given besides the annual bonus to the employees.22. An analysis of annexure "L" to the supplemental statement of case made by the Tribunal discloses some striking instances of payments to employees. One Themaswamy was paid annually commission varying from Rs. 15,000/- to Rs. 23,000/- when his basic salary was Rs. 2,100/- per annum; one K. N. Rajagopalachari was paid commission varying from Rs. 16,000/- to Rs. 12,000/- when his basic salary was Rs. 1,260/- per annum; one S. L. Radhakrishnan was paid commission varying from Rs. 5,700/- to Rs. 13,000/- when his salary varied between Rs. 516/- and Rs. 636/- per annum and one K. R. Rama Rao was paid commission varying from Rs. 4,600/- to Rs. 10,520/- his salary being Rs. 492/- and later increased to Rs. 612/- per annum.23. There was thus ample evidence in support of the conclusion of the E. P. T. Officer which was confirmed by the Tribunal.As we have already observed, it is the province of the E. P. T. Officer and the Tribunal to assess the permissible deductions in the context of reasonableness and necessity having regard to the requirements of the business and interference with the conclusion is permissible if the view of the Taxing Authorities is vitiated by an error of law or is not based on any materials, or the conclusion is such that no man instructed in law could have arrived at. It is true that in considering whether the deduction claimed by the assessees for payments made as bonus or commission paid to an employee is to be allowed, the taxing officer must have regard to the provisions of S. 10 (2)(x) of the Income Tax Act and cl. (12)of Sch. 1 of the Excess Profits Tax Act; and in assessing the reasonableness, consideration of commercial expediency must undoubtedly be taken into account. But commercial expediency must be viewed in the light of the requirements of the business and the actual services rendered by the persons concerned. Any abstract consideration of commercial expediency is out of place.24. In our view, the High Court was not justified in seeking to reappreciate the evidence on which the conclusion of the E. P. T. Officer which was confirmed by the Tribunal was based. Their jurisdiction being advisory, the High Court had to answer the questions submitted for opinion on the facts found; if the High Court held the view that the taxing authorities had misdirected themselves in law or had made a wrong inference in law or had failed to apply the correct tests or had misconceived the evidence, it was open to them to invite the attention of Taxing Authorities to the error committed by them; but the High Court could not set aside the decision of the taxing Authorities on a reapplication of the evidence. We may also point out that even if the High Court concluded that the total disallowance of the deduction claimed was not justified, the High Court could not substitute its own view as to what was reasonable and necessary. The High Court had, if it disagreed with the taxing authorities, still to answer the questions submitted and leave to the consideration of the E. P. T. Officer what in the circumstances was reasonable and necessary.25. Counsel for the assessees submitted that it any event, the Tribunal having in its supplementary statement of case stated that payment in excess of what was recommended by the I. C. I. was unjustified, this Court may so modify the order of the High Court that deductions of the amounts which were recommended by the I. C. I. may be regarded as permissible deductions. The I. C. I. recommended distribution of a certain percentage out of the emergency commission to the sub-distributors; but in the administrative set up of the assessees, the sub-distributors did not find a place. The assessees carried on their business through paid employees. In terms therefore the recommendation by the I. C. I. had no application to the assessees. It is true that even if the assessees did not carry on the business through sub-distributors, payment made to its employees if reasonable and necessary having regard to the requirements of the business, may still be deductible, but that in our judgment is a matter to be decided by the Taxing Authorities and not by us. The Tribunal had come to the conclusion that no payment in addition to the salary, annual bonus and special bonus was justified and any expression of opinion to the contrary in the supplementary statement pursuant to the order for statement of case could not in our judgment affect the conclusion originally recorded.26. In our view the answer to the question whether the disallowance by the E. P. T. authorities of the commission paid to branch managers was justified under R. 12, Sch. 1, of the Excess Profits Tax Act should have been answered in the affirmative. On the view taken by us. Appeal No. 494/1958 will be allowed, but there will be no order as to costs.
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were unable to see anything per se unreasonable in the amounts of commission actually paid by the assessees to the branch managers and assistant managers in thethe view of the High Court in determining the "net profits" under the agreement "in accordance with the principles of commercial accountancy and the principles laid down under the Excess Profits Tax Act" the Excess Profits Tax which is a tax on profits could not be deducted. In our judgment the question is one of the true interpretation of the agreement. Mahadevan was under the agreement to receive 12 1/2% commission on the net profits of the colours Trading Co. calculated by deducting from the gross profits of the business the salaries, wages and other outgoings. The expression "outgoings" is not restricted to business or commercial outgoings. The agreement specifically disentitles the employers to make deductions of capital expenditure but there is no indication that the outgoings are to be business outgoings only. There is nothing in the agreement or in the context justifying the view that in the expression outgoings is not included the Excess Profits Tax paid by the assessees.In the case in hand, the Excess Profits Tax Officer held, (a) that the employees of the assessees were being amply remunerated for services rendered by adequate salary, generous dearness allowance and annual bonus equal to the basis salary, (b) that the emolument of the employees had been increased year after year and there was no material to show that the employees had made a persistent demand for increased emoluments, (c) that the commission was credited to the employees account at the end of the year and was carried forward but no payments were made to them, (d) that the agreements which had been produced by the assessees were fabricated with a view to reduce tax liability, and (e) that the expenditure claimed was not proved to have been laid out wholly and exclusively for the purpose of the business. Taking into account these circumstances, the E. P. T. Officer held that the remuneration paid to the employees was adequate and any additional commission paid was in excess of what was reasonable and necessary. The only criticism urged by counsel for the assessees against the grounds given is that the E. P.T. Officer observed that while the net profit according to the Profit and Loss Account of the firm was Rs. 20,487/- leaving a share of Rs. 6,800/- only to each of the partners, some of the managers got more than this amount. It appears that the E. P. T. Officer committed an error in so observing. The profits of the Colours Trading Co. as disclosed by the order of assessment for the year 1945-46 were Rs.99,435/- and not Rs. 20,487/-; but that error did not affect the ultimate conclusion recorded by the E. P. T. Officer. According to the books of account of the assesses for the year 1943-44 of the business in dyes, the profits were Rs. 99,435/- and they claimed to have distributed a commission of Rs. 1,00,715/- to their employees out of the emergency commission, which was prima facie wholly disproportionate to the amount received by them.There was thus ample evidence in support of the conclusion of the E. P. T. Officer which was confirmed by the Tribunal.As we have already observed, it is the province of the E. P. T. Officer and the Tribunal to assess the permissible deductions in the context of reasonableness and necessity having regard to the requirements of the business and interference with the conclusion is permissible if the view of the Taxing Authorities is vitiated by an error of law or is not based on any materials, or the conclusion is such that no man instructed in law could have arrived at. It is true that in considering whether the deduction claimed by the assessees for payments made as bonus or commission paid to an employee is to be allowed, the taxing officer must have regard to the provisions of S. 10 (2)(x) of the Income Tax Act and cl. (12)of Sch. 1 of the Excess Profits Tax Act; and in assessing the reasonableness, consideration of commercial expediency must undoubtedly be taken into account. But commercial expediency must be viewed in the light of the requirements of the business and the actual services rendered by the persons concerned. Any abstract consideration of commercial expediency is out of place.In our view, the High Court was not justified in seeking to reappreciate the evidence on which the conclusion of the E. P. T. Officer which was confirmed by the Tribunal was based. Their jurisdiction being advisory, the High Court had to answer the questions submitted for opinion on the facts found; if the High Court held the view that the taxing authorities had misdirected themselves in law or had made a wrong inference in law or had failed to apply the correct tests or had misconceived the evidence, it was open to them to invite the attention of Taxing Authorities to the error committed by them; but the High Court could not set aside the decision of the taxing Authorities on a reapplication of the evidence. We may also point out that even if the High Court concluded that the total disallowance of the deduction claimed was not justified, the High Court could not substitute its own view as to what was reasonable and necessary. The High Court had, if it disagreed with the taxing authorities, still to answer the questions submitted and leave to the consideration of the E. P. T. Officer what in the circumstances was reasonable and necessary.In our view the answer to the question whether the disallowance by the E. P. T. authorities of the commission paid to branch managers was justified under R. 12, Sch. 1, of the Excess Profits Tax Act should have been answered in the affirmative. On the view taken by us. Appeal No. 494/1958 will be allowed, but there will be no order as to costs.
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MAARS SOFTWARE INTERNATIONAL LTD Vs. UNION OF INDIA | against the appellant-Company before the Special Director of Enforcement Mumbai (Adjudicating Authority). 6. The complaint was founded on the material collected during the course of detailed investigation made in the affairs and the dealings of the appellant-Company in their business operations. It was done pursuant to the directive issued by the competent authority on 23.11.2001 to the appellant-Company under FEMA. 7. The aforesaid directive was issued to examine the genuineness of the internal affairs of the appellant-Company and also with a view to verify various international dealings and business operations which the appellant had executed during 3 3the relevant period with their overseas customers involving huge foreign exchequer. 8. The investigation also centered around the details of the Directors and Promoters; their holdings; how many groups and associates companies were formed by the appellants in India and abroad for doing business; details of the share transactions between the promoters of the appellant-Company and OCB/FIIs/Sub- accounts/NRI; the details of the appellant?s brokers appointed in the trade for execution of their business contracts; and lastly, the details of loans raised by the appellant-Company for their business purpose etc. 9. The complainant, i.e., the Enforcement Directorate prayed in the complaint that the investigation carried out has clearly made out a case of violation of Section 8 of FEMA read with 4 4Regulation 3 of the Foreign Exchange Management (Realization, Repatriation and Surrender of Foreign Exchange) Regulations, 2000 read with Regulation 9 of the Foreign Exchange Management (Export of Goods and Services) Regulations, 2000 and also violation of Section 42 (1) of FEMA by the appellant- Company. The complainant, therefore, prayed that action, as contemplated under FEMA, be taken against the appellant-Company for such violations as provided under FEMA. 10. It is this issue, which was adjudicated by the Special Director. By order dated 13.03.2008, the Special Director allowed the complaint and held that the appellant-Company has contravened the provisions of FEMA as prayed in the complaint and accordingly imposed a penalty of Rs.4 crores on the appellant No.1-Company and Rs.1 crore on 5 5appellant No.2-Managing Director-Shri Varadharajan as provided under FEMA. 11. The appellants felt aggrieved by the aforementioned order and hence filed two appeals under Section 13 of FEMA in the Tribunal. By order dated 07.01.2010, the Tribunal allowed the appeals and set aside the order dated 13.03.2008 and directed the authorities to refund the amount which was deposited by the appellants in these proceedings for filing the appeals. 12. The Union of India felt aggrieved by the order of the Tribunal and filed appeals in the High Court under Section 35 of the FEMA whereas the appellants herein filed a writ petition in the High Court against the Union of India and sought therein a writ of mandamus claiming refund of the pre- deposit amount. 6 613. By impugned order, the High Court allowed the appeals, set aside the order of the Tribunal and restored the order of the Adjudicating Authority. As a consequence thereof, the appellants? writ petition was dismissed. 14. It is against this common impugned order of the High Court, the appellant-Company and its Managing Director have filed these appeals by way of special leave in this Court. 15. So, the short question, which arises for consideration in these appeals, is whether the High Court was justified in allowing the appeals filed by the Union of India. 16. Heard Mr. Gopal Shankarnaraynan, learned senior counsel for the appellants and Mr. B.K. Satija, learned counsel for the respondents. 17. Having heard the learned counsel for the parties and on perusal of the record of the case, we 7 7are inclined to allow these appeals and while setting aside the impugned order remand the case to the High Court for deciding the appeals afresh on merits in accordance with law. 18. The need to remand the case (appeals) to the High Court is called for because of the observations made by the High Court in Para 15, which reads as under: ?………..No material has been produced before this Court as to what steps have been taken to realize the amount within the stipulated period. The company was not able to place any material to show the reason for the failure to realize the said amount within the stipulated period or any permission for extension of period has been obtained from the RBI as contemplated under Section 42 of the FEMA………..? 19. It was, however, brought to our notice from Para 29 of the Tribunals order, which was impugned before the High Court in the appeals filed by the Union of India, that the appellants had filed material, which were marked as (Annexures A-15 to 8 8A-38) in the case, with a view to show as to what steps they had taken to realize and repatriate the dues in question. 20. In our considered view, keeping in view the observations made by the High Court in Para 15, it is clear that the High Court did not examine the case of the parties in the context of material placed by the appellants, though the Tribunal in Para 29 of its order has considered the said material. 21. In our view, the High Court should have taken into consideration the said material with a view to decide as to whether it was relevant or/and sufficient, and whether it could justify the appellants? case as contemplated under Section 8 of FEMA. 22. Instead, the High Court seemed to have proceeded on wrong assumption that since the appellants did not file any material, a case was 9 9made out against them. This observation of the High Court, in our view, was contrary to the record of the case and hence, interference in the impugned order is called for. 23. In view of the foregoing discussion, we are of the view that the proper course in such a case would be to remand the case to the High Court and request the High Court to decide the appeal afresh on merits in accordance with law. | 1[ds]17. Having heard the learned counsel for the parties and on perusal of the record of the case, we 7 7are inclined to allow these appeals and while setting aside the impugned order remand the case to the High Court for deciding the appeals afresh on merits in accordance with law.It was, however, brought to our notice from Para 29 of the Tribunals order, which was impugned before the High Court in the appeals filed by the Union of India, that the appellants had filed material, which were marked as (Annexures A-15 to 8 8A-38) in the case, with a view to show as to what steps they had taken to realize and repatriate the dues in question.In our considered view, keeping in view the observations made by the High Court in Para 15, it is clear that the High Court did not examine the case of the parties in the context of material placed by the appellants, though the Tribunal in Para 29 of its order has considered the said material.In our view, the High Court should have taken into consideration the said material with a view to decide as to whether it was relevant or/and sufficient, and whether it could justify the appellants? case as contemplated under Section 8 of FEMA.Instead, the High Court seemed to have proceeded on wrong assumption that since the appellants did not file any material, a case was 9 9made out against them. This observation of the High Court, in our view, was contrary to the record of the case and hence, interference in the impugned order is called for.In view of the foregoing discussion, we are of the view that the proper course in such a case would be to remand the case to the High Court and request the High Court to decide the appeal afresh on merits in accordance with law. | 1 | 1,315 | 339 | ### Instruction:
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against the appellant-Company before the Special Director of Enforcement Mumbai (Adjudicating Authority). 6. The complaint was founded on the material collected during the course of detailed investigation made in the affairs and the dealings of the appellant-Company in their business operations. It was done pursuant to the directive issued by the competent authority on 23.11.2001 to the appellant-Company under FEMA. 7. The aforesaid directive was issued to examine the genuineness of the internal affairs of the appellant-Company and also with a view to verify various international dealings and business operations which the appellant had executed during 3 3the relevant period with their overseas customers involving huge foreign exchequer. 8. The investigation also centered around the details of the Directors and Promoters; their holdings; how many groups and associates companies were formed by the appellants in India and abroad for doing business; details of the share transactions between the promoters of the appellant-Company and OCB/FIIs/Sub- accounts/NRI; the details of the appellant?s brokers appointed in the trade for execution of their business contracts; and lastly, the details of loans raised by the appellant-Company for their business purpose etc. 9. The complainant, i.e., the Enforcement Directorate prayed in the complaint that the investigation carried out has clearly made out a case of violation of Section 8 of FEMA read with 4 4Regulation 3 of the Foreign Exchange Management (Realization, Repatriation and Surrender of Foreign Exchange) Regulations, 2000 read with Regulation 9 of the Foreign Exchange Management (Export of Goods and Services) Regulations, 2000 and also violation of Section 42 (1) of FEMA by the appellant- Company. The complainant, therefore, prayed that action, as contemplated under FEMA, be taken against the appellant-Company for such violations as provided under FEMA. 10. It is this issue, which was adjudicated by the Special Director. By order dated 13.03.2008, the Special Director allowed the complaint and held that the appellant-Company has contravened the provisions of FEMA as prayed in the complaint and accordingly imposed a penalty of Rs.4 crores on the appellant No.1-Company and Rs.1 crore on 5 5appellant No.2-Managing Director-Shri Varadharajan as provided under FEMA. 11. The appellants felt aggrieved by the aforementioned order and hence filed two appeals under Section 13 of FEMA in the Tribunal. By order dated 07.01.2010, the Tribunal allowed the appeals and set aside the order dated 13.03.2008 and directed the authorities to refund the amount which was deposited by the appellants in these proceedings for filing the appeals. 12. The Union of India felt aggrieved by the order of the Tribunal and filed appeals in the High Court under Section 35 of the FEMA whereas the appellants herein filed a writ petition in the High Court against the Union of India and sought therein a writ of mandamus claiming refund of the pre- deposit amount. 6 613. By impugned order, the High Court allowed the appeals, set aside the order of the Tribunal and restored the order of the Adjudicating Authority. As a consequence thereof, the appellants? writ petition was dismissed. 14. It is against this common impugned order of the High Court, the appellant-Company and its Managing Director have filed these appeals by way of special leave in this Court. 15. So, the short question, which arises for consideration in these appeals, is whether the High Court was justified in allowing the appeals filed by the Union of India. 16. Heard Mr. Gopal Shankarnaraynan, learned senior counsel for the appellants and Mr. B.K. Satija, learned counsel for the respondents. 17. Having heard the learned counsel for the parties and on perusal of the record of the case, we 7 7are inclined to allow these appeals and while setting aside the impugned order remand the case to the High Court for deciding the appeals afresh on merits in accordance with law. 18. The need to remand the case (appeals) to the High Court is called for because of the observations made by the High Court in Para 15, which reads as under: ?………..No material has been produced before this Court as to what steps have been taken to realize the amount within the stipulated period. The company was not able to place any material to show the reason for the failure to realize the said amount within the stipulated period or any permission for extension of period has been obtained from the RBI as contemplated under Section 42 of the FEMA………..? 19. It was, however, brought to our notice from Para 29 of the Tribunals order, which was impugned before the High Court in the appeals filed by the Union of India, that the appellants had filed material, which were marked as (Annexures A-15 to 8 8A-38) in the case, with a view to show as to what steps they had taken to realize and repatriate the dues in question. 20. In our considered view, keeping in view the observations made by the High Court in Para 15, it is clear that the High Court did not examine the case of the parties in the context of material placed by the appellants, though the Tribunal in Para 29 of its order has considered the said material. 21. In our view, the High Court should have taken into consideration the said material with a view to decide as to whether it was relevant or/and sufficient, and whether it could justify the appellants? case as contemplated under Section 8 of FEMA. 22. Instead, the High Court seemed to have proceeded on wrong assumption that since the appellants did not file any material, a case was 9 9made out against them. This observation of the High Court, in our view, was contrary to the record of the case and hence, interference in the impugned order is called for. 23. In view of the foregoing discussion, we are of the view that the proper course in such a case would be to remand the case to the High Court and request the High Court to decide the appeal afresh on merits in accordance with law.
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17. Having heard the learned counsel for the parties and on perusal of the record of the case, we 7 7are inclined to allow these appeals and while setting aside the impugned order remand the case to the High Court for deciding the appeals afresh on merits in accordance with law.It was, however, brought to our notice from Para 29 of the Tribunals order, which was impugned before the High Court in the appeals filed by the Union of India, that the appellants had filed material, which were marked as (Annexures A-15 to 8 8A-38) in the case, with a view to show as to what steps they had taken to realize and repatriate the dues in question.In our considered view, keeping in view the observations made by the High Court in Para 15, it is clear that the High Court did not examine the case of the parties in the context of material placed by the appellants, though the Tribunal in Para 29 of its order has considered the said material.In our view, the High Court should have taken into consideration the said material with a view to decide as to whether it was relevant or/and sufficient, and whether it could justify the appellants? case as contemplated under Section 8 of FEMA.Instead, the High Court seemed to have proceeded on wrong assumption that since the appellants did not file any material, a case was 9 9made out against them. This observation of the High Court, in our view, was contrary to the record of the case and hence, interference in the impugned order is called for.In view of the foregoing discussion, we are of the view that the proper course in such a case would be to remand the case to the High Court and request the High Court to decide the appeal afresh on merits in accordance with law.
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M.E. SHIVALINGAMURTHY Vs. CENTRAL BUREAU OF INVESTIGATION, BENGALURU | is clear that the provision, as obtained prior to 1960, when the Rules were made, was different. 23. In the aforesaid case, the question came to be decided in a Reference under Section 66 of the Income Tax Act, 1922. One of the questions which fell for decision was the effect of there being no previous sanction of the Government under Rule 37 for the transfer of lease. We may notice that the Court in Sree Ramakrishna Mining Company (supra), inter alia, held as follows: The 37th Rule, as can be seen from its language does not concern itself with the formation of a partnership such as the one before us, and, its principal purpose is to provide for the transfer of a lease granted under the provisions of the Rules. It is in the nature of an enabling provision which authorises a transfer by the lessee to a person who has a certificate of approval, and, directs that such transfer could be made with the previous sanction of the Government subject to the other conditions with which we are not concerned. There is a distinction between a statutory provision which contains an express prohibition against the performance of a certain act and one which enables its performance subject to prescribed conditions. While in the former case, there will be no difficulty in coming to the conclusion if nothing else could be said about it that the absolute prohibition against the performance of the act is what is forbidden by law, the same could not be said if the matter falls within the second category. Now the 37th rule does not, in express terms, forbid a transfer but authorises a transfer with the previous sanction of the Government and subject to other conditions. 24. The provisions of Rule 37, which would control destiny of this case, is, as it was obtained in the year 2009. Also could it not be contended that decisions rendered under the Stamp Act may not be relevant to understood the scope of Rule (37) of the Rules. No doubt, there is a case for the appellant that on a number of reconstitutions took place in regard to the firm-AMC, and on no occasion, was an issue relating to infraction of Rule 37, raised. All that the appellant did was, he acted in accordance with the practice obtaining in the Department. There is the case for the appellant that in this regard, Rule 37, as such, was not pointedly invoked by either the Additional Director or the SDA. 25. It is here that again it becomes necessary that we remind ourselves of the contours of the jurisdiction under Section 227 of the Cr.PC. The principle established is to take the materials produced by the prosecution, both in the form of oral statements and also documentary material, and act upon it without it been subjected to questioning through cross-examination and everything assumed in favour of the prosecution, if a scenario emerges where no offence, as alleged, is made out against the accused, it, undoubtedly, would enure to the benefit of the accused warranting the Trial Court to discharge the accused. 26. It is not open to the accused to rely on material by way of defence and persuade the court to discharge him. 27. However, what is the meaning of the expression materials on the basis of which grave suspicion is aroused in the mind of the courts , which is not explained away? Can the accused explain away the material only with reference to the materials produced by the prosecution? Can the accused rely upon material which he chooses to produce at the stage? 28. In view of the decisions of this Court that the accused can only rely on the materials which are produced by the prosecution, it must be understood that the grave suspicion, if it is established on the materials, should be explained away only in terms of the materials made available by the prosecution. No doubt, the accused may appeal to the broad probabilities to the case to persuade the court to discharge him. 29. In this case, as already noticed, going by the statements made by the subordinates working in the Office of the appellant, on receipt of the letter from the erstwhile partners of AMC dated 26.12.2009, two of his subordinates, including the Additional Director, did recommend that the matter requires a legal opinion. The noting, which is undisputed in this case, made by the appellant, would appear to suggest that he had spoken to the Deputy Director (Legal). The prosecution case largely depends upon the statement of the Deputy Director (Legal) who takes a definite stand that no opinion was sought from him. A matter, under Rule 37 of the Rules, therefore, according to the prosecution case, which ought to have gone to the State Government for prior sanction, came to be dealt with by the appellant as Director of Mines. This led to the issue of MDPs. It is, no doubt, true that there may not be any other material to link the appellant with various other acts and omissions which have been alleged against the first accused in particular along with the fifth accused and other accused. However, the fact remains, if the defence of the appellant is not to be looked into, which included the practice obtaining in the past whenever the firm was reconstituted, and also the version of the appellant that he did in fact speak with the Deputy Director (Legal) and acted on his advice and further that this fact would be established if the Deputy Director (Legal) was questioned in his presence, they would appear to be matter which may not be available to the appellant to press before the court considering the application under Section 227 of the Cr.PC. 30. This being the outcome of our discussion, the inevitable consequence is that we are not persuaded to hold that the High Court was in error in the view it has taken. | 0[ds]24. The provisions of Rule 37, which would control destiny of this case, is, as it was obtained in the year 2009. Also could it not be contended that decisions rendered under the Stamp Act may not be relevant to understood the scope of Rule (37) of the Rules. No doubt, there is a case for the appellant that on a number of reconstitutions took place in regard to the firm-AMC, and on no occasion, was an issue relating to infraction of Rule 37, raised. All that the appellant did was, he acted in accordance with the practice obtaining in the Department. There is the case for the appellant that in this regard, Rule 37, as such, was not pointedly invoked by either the Additional Director or the SDA25. It is here that again it becomes necessary that we remind ourselves of the contours of the jurisdiction under Section 227 of the Cr.PC. The principle established is to take the materials produced by the prosecution, both in the form of oral statements and also documentary material, and act upon it without it been subjected to questioning through cross-examination and everything assumed in favour of the prosecution, if a scenario emerges where no offence, as alleged, is made out against the accused, it, undoubtedly, would enure to the benefit of the accused warranting the Trial Court to discharge the accused28. In view of the decisions of this Court that the accused can only rely on the materials which are produced by the prosecution, it must be understood that the grave suspicion, if it is established on the materials, should be explained away only in terms of the materials made available by the prosecution. No doubt, the accused may appeal to the broad probabilities to the case to persuade the court to discharge him29. In this case, as already noticed, going by the statements made by the subordinates working in the Office of the appellant, on receipt of the letter from the erstwhile partners of AMC dated 26.12.2009, two of his subordinates, including the Additional Director, did recommend that the matter requires a legal opinion. The noting, which is undisputed in this case, made by the appellant, would appear to suggest that he had spoken to the Deputy Director (Legal). The prosecution case largely depends upon the statement of the Deputy Director (Legal) who takes a definite stand that no opinion was sought from him. A matter, under Rule 37 of the Rules, therefore, according to the prosecution case, which ought to have gone to the State Government for prior sanction, came to be dealt with by the appellant as Director of Mines. This led to the issue of MDPs. It is, no doubt, true that there may not be any other material to link the appellant with various other acts and omissions which have been alleged against the first accused in particular along with the fifth accused and other accused. However, the fact remains, if the defence of the appellant is not to be looked into, which included the practice obtaining in the past whenever the firm was reconstituted, and also the version of the appellant that he did in fact speak with the Deputy Director (Legal) and acted on his advice and further that this fact would be established if the Deputy Director (Legal) was questioned in his presence, they would appear to be matter which may not be available to the appellant to press before the court considering the application under Section 227 of the Cr.PC30. This being the outcome of our discussion, the inevitable consequence is that we are not persuaded to hold that the High Court was in error in the view it has takenLEGAL PRINCIPLES APPLICABLE IN REGARD TO AN APPLICATION SEEKING DISCHARGE14. This is an area covered by a large body of case law. We refer to a recent judgment which has referred to the earlier decisions, viz., P. Vijayan v. State of Kerala and another (2010) 2 SCC 398 and discern the followingi. If two views are possible and one of them gives rise to suspicion only as distinguished from grave suspicion, the Trial Judge would be empowered to discharge the accusedii. The Trial Judge is not a mere Post Office to frame the charge at the instance of the prosecutioniii. The Judge has merely to sift the evidence in order to find out whether or not there is sufficient ground for proceeding. Evidence would consist of the statements recorded by the Police or the documents produced before the Courtiv. If the evidence, which the Prosecutor proposes to adduce to prove the guilt of the accused, even if fully accepted before it is challenged in cross-examination or rebutted by the defence evidence, if any,t show that the accused committed offence, then, there will be no sufficient ground for proceeding with thev. It is open to the accused to explain away the materials giving rise to the grave suspicionvi. The court has to consider the broad probabilities, the total effect of the evidence and the documents produced before the court, any basic infirmities appearing in the case and so on. This, however, would not entitle the court to make a roving inquiry into the pros and consvii. At the time of framing of the charges, the probative value of the material on record cannot be gone into, and the material brought on record by the prosecution, has to be accepted as trueviii. There must exist some materials for entertaining the strong suspicion which can form the basis for drawing up a charge and refusing to discharge the accusedThe defence of the accused is not to be looked into at the stage when the accused seeks to be discharged under Section 227 of the Cr.PC (See State of J & K v. Sudershan Chakkar and another AIR 1995 SC 1954 ). The expression,e record of the, used in Section 227 of the Cr.PC, is to be understood as the documents and the articles, if any, produced by the prosecution. The Code does not give any right to the accused to produce any document at the stage of framing of thecharge. At the stage of framing of the charge, the submission of the accused is to be confined to the material produced by the Police (See State of Orissa v. Debendra Nath PadhiAIR 2005 SC 359 | 0 | 5,829 | 1,179 | ### 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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is clear that the provision, as obtained prior to 1960, when the Rules were made, was different. 23. In the aforesaid case, the question came to be decided in a Reference under Section 66 of the Income Tax Act, 1922. One of the questions which fell for decision was the effect of there being no previous sanction of the Government under Rule 37 for the transfer of lease. We may notice that the Court in Sree Ramakrishna Mining Company (supra), inter alia, held as follows: The 37th Rule, as can be seen from its language does not concern itself with the formation of a partnership such as the one before us, and, its principal purpose is to provide for the transfer of a lease granted under the provisions of the Rules. It is in the nature of an enabling provision which authorises a transfer by the lessee to a person who has a certificate of approval, and, directs that such transfer could be made with the previous sanction of the Government subject to the other conditions with which we are not concerned. There is a distinction between a statutory provision which contains an express prohibition against the performance of a certain act and one which enables its performance subject to prescribed conditions. While in the former case, there will be no difficulty in coming to the conclusion if nothing else could be said about it that the absolute prohibition against the performance of the act is what is forbidden by law, the same could not be said if the matter falls within the second category. Now the 37th rule does not, in express terms, forbid a transfer but authorises a transfer with the previous sanction of the Government and subject to other conditions. 24. The provisions of Rule 37, which would control destiny of this case, is, as it was obtained in the year 2009. Also could it not be contended that decisions rendered under the Stamp Act may not be relevant to understood the scope of Rule (37) of the Rules. No doubt, there is a case for the appellant that on a number of reconstitutions took place in regard to the firm-AMC, and on no occasion, was an issue relating to infraction of Rule 37, raised. All that the appellant did was, he acted in accordance with the practice obtaining in the Department. There is the case for the appellant that in this regard, Rule 37, as such, was not pointedly invoked by either the Additional Director or the SDA. 25. It is here that again it becomes necessary that we remind ourselves of the contours of the jurisdiction under Section 227 of the Cr.PC. The principle established is to take the materials produced by the prosecution, both in the form of oral statements and also documentary material, and act upon it without it been subjected to questioning through cross-examination and everything assumed in favour of the prosecution, if a scenario emerges where no offence, as alleged, is made out against the accused, it, undoubtedly, would enure to the benefit of the accused warranting the Trial Court to discharge the accused. 26. It is not open to the accused to rely on material by way of defence and persuade the court to discharge him. 27. However, what is the meaning of the expression materials on the basis of which grave suspicion is aroused in the mind of the courts , which is not explained away? Can the accused explain away the material only with reference to the materials produced by the prosecution? Can the accused rely upon material which he chooses to produce at the stage? 28. In view of the decisions of this Court that the accused can only rely on the materials which are produced by the prosecution, it must be understood that the grave suspicion, if it is established on the materials, should be explained away only in terms of the materials made available by the prosecution. No doubt, the accused may appeal to the broad probabilities to the case to persuade the court to discharge him. 29. In this case, as already noticed, going by the statements made by the subordinates working in the Office of the appellant, on receipt of the letter from the erstwhile partners of AMC dated 26.12.2009, two of his subordinates, including the Additional Director, did recommend that the matter requires a legal opinion. The noting, which is undisputed in this case, made by the appellant, would appear to suggest that he had spoken to the Deputy Director (Legal). The prosecution case largely depends upon the statement of the Deputy Director (Legal) who takes a definite stand that no opinion was sought from him. A matter, under Rule 37 of the Rules, therefore, according to the prosecution case, which ought to have gone to the State Government for prior sanction, came to be dealt with by the appellant as Director of Mines. This led to the issue of MDPs. It is, no doubt, true that there may not be any other material to link the appellant with various other acts and omissions which have been alleged against the first accused in particular along with the fifth accused and other accused. However, the fact remains, if the defence of the appellant is not to be looked into, which included the practice obtaining in the past whenever the firm was reconstituted, and also the version of the appellant that he did in fact speak with the Deputy Director (Legal) and acted on his advice and further that this fact would be established if the Deputy Director (Legal) was questioned in his presence, they would appear to be matter which may not be available to the appellant to press before the court considering the application under Section 227 of the Cr.PC. 30. This being the outcome of our discussion, the inevitable consequence is that we are not persuaded to hold that the High Court was in error in the view it has taken.
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0
### Explanation:
on a number of reconstitutions took place in regard to the firm-AMC, and on no occasion, was an issue relating to infraction of Rule 37, raised. All that the appellant did was, he acted in accordance with the practice obtaining in the Department. There is the case for the appellant that in this regard, Rule 37, as such, was not pointedly invoked by either the Additional Director or the SDA25. It is here that again it becomes necessary that we remind ourselves of the contours of the jurisdiction under Section 227 of the Cr.PC. The principle established is to take the materials produced by the prosecution, both in the form of oral statements and also documentary material, and act upon it without it been subjected to questioning through cross-examination and everything assumed in favour of the prosecution, if a scenario emerges where no offence, as alleged, is made out against the accused, it, undoubtedly, would enure to the benefit of the accused warranting the Trial Court to discharge the accused28. In view of the decisions of this Court that the accused can only rely on the materials which are produced by the prosecution, it must be understood that the grave suspicion, if it is established on the materials, should be explained away only in terms of the materials made available by the prosecution. No doubt, the accused may appeal to the broad probabilities to the case to persuade the court to discharge him29. In this case, as already noticed, going by the statements made by the subordinates working in the Office of the appellant, on receipt of the letter from the erstwhile partners of AMC dated 26.12.2009, two of his subordinates, including the Additional Director, did recommend that the matter requires a legal opinion. The noting, which is undisputed in this case, made by the appellant, would appear to suggest that he had spoken to the Deputy Director (Legal). The prosecution case largely depends upon the statement of the Deputy Director (Legal) who takes a definite stand that no opinion was sought from him. A matter, under Rule 37 of the Rules, therefore, according to the prosecution case, which ought to have gone to the State Government for prior sanction, came to be dealt with by the appellant as Director of Mines. This led to the issue of MDPs. It is, no doubt, true that there may not be any other material to link the appellant with various other acts and omissions which have been alleged against the first accused in particular along with the fifth accused and other accused. However, the fact remains, if the defence of the appellant is not to be looked into, which included the practice obtaining in the past whenever the firm was reconstituted, and also the version of the appellant that he did in fact speak with the Deputy Director (Legal) and acted on his advice and further that this fact would be established if the Deputy Director (Legal) was questioned in his presence, they would appear to be matter which may not be available to the appellant to press before the court considering the application under Section 227 of the Cr.PC30. This being the outcome of our discussion, the inevitable consequence is that we are not persuaded to hold that the High Court was in error in the view it has takenLEGAL PRINCIPLES APPLICABLE IN REGARD TO AN APPLICATION SEEKING DISCHARGE14. This is an area covered by a large body of case law. We refer to a recent judgment which has referred to the earlier decisions, viz., P. Vijayan v. State of Kerala and another (2010) 2 SCC 398 and discern the followingi. If two views are possible and one of them gives rise to suspicion only as distinguished from grave suspicion, the Trial Judge would be empowered to discharge the accusedii. The Trial Judge is not a mere Post Office to frame the charge at the instance of the prosecutioniii. The Judge has merely to sift the evidence in order to find out whether or not there is sufficient ground for proceeding. Evidence would consist of the statements recorded by the Police or the documents produced before the Courtiv. If the evidence, which the Prosecutor proposes to adduce to prove the guilt of the accused, even if fully accepted before it is challenged in cross-examination or rebutted by the defence evidence, if any,t show that the accused committed offence, then, there will be no sufficient ground for proceeding with thev. It is open to the accused to explain away the materials giving rise to the grave suspicionvi. The court has to consider the broad probabilities, the total effect of the evidence and the documents produced before the court, any basic infirmities appearing in the case and so on. This, however, would not entitle the court to make a roving inquiry into the pros and consvii. At the time of framing of the charges, the probative value of the material on record cannot be gone into, and the material brought on record by the prosecution, has to be accepted as trueviii. There must exist some materials for entertaining the strong suspicion which can form the basis for drawing up a charge and refusing to discharge the accusedThe defence of the accused is not to be looked into at the stage when the accused seeks to be discharged under Section 227 of the Cr.PC (See State of J & K v. Sudershan Chakkar and another AIR 1995 SC 1954 ). The expression,e record of the, used in Section 227 of the Cr.PC, is to be understood as the documents and the articles, if any, produced by the prosecution. The Code does not give any right to the accused to produce any document at the stage of framing of thecharge. At the stage of framing of the charge, the submission of the accused is to be confined to the material produced by the Police (See State of Orissa v. Debendra Nath PadhiAIR 2005 SC 359
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U.P.State Industrial Dev.Corpn. Ltd Vs. Monsanto Mfg. (P) Ltd. | transfer in the Companys assets, immovable or otherwise. It is equally not a transfer in fact, since the provisions of the Lease-Deed do not recognise/nor prohibit any such transfer.vii) The Guidelines and in particular Clause 6.01(F) is not applicable in the present case as there has been no "disposal of controlling interest in the venture by an existing allottee". Undoubtedly, the respondent-company is the "existing allottee" and the respondent-company has not disposed its "controlling interest in the venture". In other words, there is no transfer even upon a literal construction of the Guidelines. 30. It is not in dispute that the appellant-Corporation on 27th May, 1977 allotted huge plot measuring 1,10,926 sq. mtrs. to respondent no. 1 Company in the industrial area, Sikandarabad, Bulandshehar on nominal amount. The respondent no. 1 clearly admitted that it had a huge debt of Rs.13,14,00,000/- the different financial institutions and, therefore, it sold shares of company, its own shares, shares of promoters and shares of financial institutions to the foreign company, namely, "M/s Rotar Ltd." 31. The appellant-Corporation in written statement filed in Suit No. 876/1996 clearly and categorically mentioned that the shares of original promoters were transferred in the name of new promoters of foreign company and therefore, the appellant-Corporation demanded list of new shareholders and Memorandum and "Articles of Association" of the Company. The change of original promoters shares to the new promoters means the subscribers of shares were changed and, therefore, there is material change in the "Memorandum of Association" and "Articles of Association" of the Company. 32. The appellant-Corporation clearly brought on record that there is change in "Capital Structure" of the company and the "Capital structure" in common parlance means "debt-equity ratio". In this case admittedly there a huge amount of Rs. 13,14,00,000/- was funded by the foreign company, i.e. "M/s Rotar Ltd." towards settling the debt. In this background the appellant alleged that there is change in "debt-equity ratio" resulting alteration in the "capital structure" of the company.33. There is larger public interest involved in incorporating alteration in "Capital Structure" in Clause 3(p) of the lease deed. There are many instances where the company takes loan from third parties on the security and land and structure allotted to them in lease, keeping in dark the lessor which amounts to incurring liabilities on the property without the knowledge of the lessor. In this case also there was huge amount of debt on the company as it took loan on land and building/factory from different financial institutions. Therefore, there is public interest involved for which consent of lessor was necessary. M/s Enrich Engineering Works Pvt. Ltd 34. In this case also similar submission has been made by the parties. 35. It is not in dispute that the huge plot of about 40, 489 & 8.35 sq. yards in the industrial area of Rai Bareilly (U.P.) was allotted by appellant-Corporation to M/s Tyres and Tubes Company Pvt. Ltd. As the said company suffered heavy losses, on 9.1.1996 the company Judge of Allahabad High Court appointed Official Liquidator and perused High Courts Order on 12.3.2004 the said company was sold to M/s Enrich Engineering Works Pvt. Ltd., by the Official Liquidator. 36. Learned counsel for the respondent submitted that it was a case of reconstitution and therefore payment of transfer fee does not arise. However, such submission can not be accepted in view of Clause 6.01(E) & (F) of the guidelines. The fact that there is a change of hand of the asset including the land in question by transfer. Therefore, the respondent is liable to pay transfer fee. M/s Super Tannery (India) Ltd. 37. Learned counsel for the appellant submitted that the huge plot of 45080 sq. mtrs. in Kanpur was allotted to M/s Supre Ago Tech Ltd. For establishing and running a "Specialty Paper Industry". In this case, only a "License Agreement" dated 10.10.1990 was executed by UPSIDC and the admitted fact on record is that no lease deed was executed by UPSIDC with M/s Super Agro Tech. Ltd. 38. In view of the above, M/s Super Agro Tech Ltd. was merely a licensee and as per the license agreement dated 10.10.1990 it had no authority whatsoever to transfer the said industrial land to M/s Super Tannery (I) Ltd. 39. On the other hand, according to the learned counsel for the respondents, due to various constraints over head costs and financial hardship company became non viable and the major production activities was not feasible to run the company. In order to avoid the future problem a scheme of amalgamation was prepared as per the provisions of the Companies Act, seeking amalgamation under Chapter V of the Companies Act. A joint application was filed before the Allahabad High Court. The High Court vide order dated 9.5.1997 allowed the petition for amalgamation and sanctioned the scheme of amalgamation and ordered that M/s Super Agro will be merged into M/s Super Tannery (India) Ltd. 40. In the present case it has not been denied that respondent company M/s Super Tannery (India) Ltd. and the other company Super Agro Tech. Ltd. are family held companies of the same family having common Directors/Promoters. Pursuant to the order of amalgamation by the High Court the plot of land in question namely A-9, A-10, Industrial Area Unnao Site-II which was allotted to Super Agro Tech. Ltd. became the asset of the respondent company M/s Super Tannery (India) Ltd. As per Amalgamation Scheme, all the property, rights and power of Super Agro Tech. Ltd., having its office at 184/170, Jajmau Kanpur was transferred without further act or deed to M/s Super Tannery (India) Ltd. Thus it is clear that by the order of the Court the premises in question was transferred in favour of the other Company.41. In view of the aforesaid facts as noticed in each case, we hold that the appellant rightly issued notice demanding transfer fee from each of the respondents and there was no reason for the High Court to interfere with the same. | 1[ds]24. In the present case the entire shareholding of Goyal family headed by Mr. Amar Nath Goyal in the said company was transferred to the Mehta-Lamba Family. The entire list of shareholders, Managing Director and Board of Directors was provided by Monsanto to the appellant-Corporation vide letter dated 7.5.1994. The record shows that the original subscribers of shares were members of Goyal family and the entire shareholding was transferred to Mehta-Lamba family. Therefore, the original subscribers of shares of respondent No. 1 Company were totally changed.25. The "Memorandum of Association" of a company limited by shares mandatorily prescribes in "Table-B" (Table-B of 1956 Act and Table-A of 2013 Act deals with Company Limited by shares) of the Companies Act mandatorily prescribed that the names, addresses, description, occupation of subscribers shall be given in Memorandum of Association. In this case as the original subscribers of shares were changed in 1994, there was material alteration in the "Memorandum of Association" of respondent no. 1 Company.26. It was also contended that there was an alteration in "Articles of Association" of respondent no. 1 Company as well. The last column of "Articles of Association" also mandatorily provides for giving names, addresses and description of subscribers. In this case, the subscribers of shares has been completely changed from the Goyal Family to Mehta-Lamba Family and hence there was material alteration of "Articles of Association" of the respondent no. 1 Company.27. In this case, the ownership of a huge Industrial plot measuring 14,533 sq. ft. in the prestigious and economically affluent area of Sahibabad (Ghaziabad) has been transferred from Goyal family to the Mehta- Lamba family for material financial gains, by adopting clever means that too without taking written consent of the Lessor i.e. appellant-Corporation. There are many instances/examples in which the lessee gets allotment of huge industrial plots and thereafter sells the same for huge monetary gains. This adversely affects the aims and objectives of appellant-Corporation i.e. the planned development of industrial areas in the State of Uttar Pradesh. The Honble High Court ought not to have interfered in the matter looking into the public interest involved and Clause 3(p) of the lease deed.The appellant-Corporation clearly brought on record that there is change in "Capital Structure" of the company and the "Capital structure" in common parlance means "debt-equity ratio". In this case admittedly there a huge amount of Rs. 13,14,00,000/- was funded by the foreign company, i.e. "M/s Rotar Ltd." towards settling the debt. In this background the appellant alleged that there is change in "debt-equity ratio" resulting alteration in the "capital structure" of the company.33. There is larger public interest involved in incorporating alteration in "Capital Structure" in Clause 3(p) of the lease deed. There are many instances where the company takes loan from third parties on the security and land and structure allotted to them in lease, keeping in dark the lessor which amounts to incurring liabilities on the property without the knowledge of the lessor. In this case also there was huge amount of debt on the company as it took loan on land and building/factory from different financial institutions. Therefore, there is public interest involved for which consent of lessor was necessary.In the present case it has not been denied that respondent company M/s Super Tannery (India) Ltd. and the other company Super Agro Tech. Ltd. are family held companies of the same family having common Directors/Promoters. Pursuant to the order of amalgamation by the High Court the plot of land in question namely A-9, A-10, Industrial Area Unnao Site-II which was allotted to Super Agro Tech. Ltd. became the asset of the respondent company M/s Super Tannery (India) Ltd. As per Amalgamation Scheme, all the property, rights and power of Super Agro Tech. Ltd., having its office at 184/170, Jajmau Kanpur was transferred without further act or deed to M/s Super Tannery (India) Ltd. Thus it is clear that by the order of the Court the premises in question was transferred in favour of the other Company.41. In view of the aforesaid facts as noticed in each case, we hold that the appellant rightly issued notice demanding transfer fee from each of the respondents and there was no reason for the High Court to interfere with the same. | 1 | 5,285 | 809 | ### Instruction:
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transfer in the Companys assets, immovable or otherwise. It is equally not a transfer in fact, since the provisions of the Lease-Deed do not recognise/nor prohibit any such transfer.vii) The Guidelines and in particular Clause 6.01(F) is not applicable in the present case as there has been no "disposal of controlling interest in the venture by an existing allottee". Undoubtedly, the respondent-company is the "existing allottee" and the respondent-company has not disposed its "controlling interest in the venture". In other words, there is no transfer even upon a literal construction of the Guidelines. 30. It is not in dispute that the appellant-Corporation on 27th May, 1977 allotted huge plot measuring 1,10,926 sq. mtrs. to respondent no. 1 Company in the industrial area, Sikandarabad, Bulandshehar on nominal amount. The respondent no. 1 clearly admitted that it had a huge debt of Rs.13,14,00,000/- the different financial institutions and, therefore, it sold shares of company, its own shares, shares of promoters and shares of financial institutions to the foreign company, namely, "M/s Rotar Ltd." 31. The appellant-Corporation in written statement filed in Suit No. 876/1996 clearly and categorically mentioned that the shares of original promoters were transferred in the name of new promoters of foreign company and therefore, the appellant-Corporation demanded list of new shareholders and Memorandum and "Articles of Association" of the Company. The change of original promoters shares to the new promoters means the subscribers of shares were changed and, therefore, there is material change in the "Memorandum of Association" and "Articles of Association" of the Company. 32. The appellant-Corporation clearly brought on record that there is change in "Capital Structure" of the company and the "Capital structure" in common parlance means "debt-equity ratio". In this case admittedly there a huge amount of Rs. 13,14,00,000/- was funded by the foreign company, i.e. "M/s Rotar Ltd." towards settling the debt. In this background the appellant alleged that there is change in "debt-equity ratio" resulting alteration in the "capital structure" of the company.33. There is larger public interest involved in incorporating alteration in "Capital Structure" in Clause 3(p) of the lease deed. There are many instances where the company takes loan from third parties on the security and land and structure allotted to them in lease, keeping in dark the lessor which amounts to incurring liabilities on the property without the knowledge of the lessor. In this case also there was huge amount of debt on the company as it took loan on land and building/factory from different financial institutions. Therefore, there is public interest involved for which consent of lessor was necessary. M/s Enrich Engineering Works Pvt. Ltd 34. In this case also similar submission has been made by the parties. 35. It is not in dispute that the huge plot of about 40, 489 & 8.35 sq. yards in the industrial area of Rai Bareilly (U.P.) was allotted by appellant-Corporation to M/s Tyres and Tubes Company Pvt. Ltd. As the said company suffered heavy losses, on 9.1.1996 the company Judge of Allahabad High Court appointed Official Liquidator and perused High Courts Order on 12.3.2004 the said company was sold to M/s Enrich Engineering Works Pvt. Ltd., by the Official Liquidator. 36. Learned counsel for the respondent submitted that it was a case of reconstitution and therefore payment of transfer fee does not arise. However, such submission can not be accepted in view of Clause 6.01(E) & (F) of the guidelines. The fact that there is a change of hand of the asset including the land in question by transfer. Therefore, the respondent is liable to pay transfer fee. M/s Super Tannery (India) Ltd. 37. Learned counsel for the appellant submitted that the huge plot of 45080 sq. mtrs. in Kanpur was allotted to M/s Supre Ago Tech Ltd. For establishing and running a "Specialty Paper Industry". In this case, only a "License Agreement" dated 10.10.1990 was executed by UPSIDC and the admitted fact on record is that no lease deed was executed by UPSIDC with M/s Super Agro Tech. Ltd. 38. In view of the above, M/s Super Agro Tech Ltd. was merely a licensee and as per the license agreement dated 10.10.1990 it had no authority whatsoever to transfer the said industrial land to M/s Super Tannery (I) Ltd. 39. On the other hand, according to the learned counsel for the respondents, due to various constraints over head costs and financial hardship company became non viable and the major production activities was not feasible to run the company. In order to avoid the future problem a scheme of amalgamation was prepared as per the provisions of the Companies Act, seeking amalgamation under Chapter V of the Companies Act. A joint application was filed before the Allahabad High Court. The High Court vide order dated 9.5.1997 allowed the petition for amalgamation and sanctioned the scheme of amalgamation and ordered that M/s Super Agro will be merged into M/s Super Tannery (India) Ltd. 40. In the present case it has not been denied that respondent company M/s Super Tannery (India) Ltd. and the other company Super Agro Tech. Ltd. are family held companies of the same family having common Directors/Promoters. Pursuant to the order of amalgamation by the High Court the plot of land in question namely A-9, A-10, Industrial Area Unnao Site-II which was allotted to Super Agro Tech. Ltd. became the asset of the respondent company M/s Super Tannery (India) Ltd. As per Amalgamation Scheme, all the property, rights and power of Super Agro Tech. Ltd., having its office at 184/170, Jajmau Kanpur was transferred without further act or deed to M/s Super Tannery (India) Ltd. Thus it is clear that by the order of the Court the premises in question was transferred in favour of the other Company.41. In view of the aforesaid facts as noticed in each case, we hold that the appellant rightly issued notice demanding transfer fee from each of the respondents and there was no reason for the High Court to interfere with the same.
### Response:
1
### Explanation:
24. In the present case the entire shareholding of Goyal family headed by Mr. Amar Nath Goyal in the said company was transferred to the Mehta-Lamba Family. The entire list of shareholders, Managing Director and Board of Directors was provided by Monsanto to the appellant-Corporation vide letter dated 7.5.1994. The record shows that the original subscribers of shares were members of Goyal family and the entire shareholding was transferred to Mehta-Lamba family. Therefore, the original subscribers of shares of respondent No. 1 Company were totally changed.25. The "Memorandum of Association" of a company limited by shares mandatorily prescribes in "Table-B" (Table-B of 1956 Act and Table-A of 2013 Act deals with Company Limited by shares) of the Companies Act mandatorily prescribed that the names, addresses, description, occupation of subscribers shall be given in Memorandum of Association. In this case as the original subscribers of shares were changed in 1994, there was material alteration in the "Memorandum of Association" of respondent no. 1 Company.26. It was also contended that there was an alteration in "Articles of Association" of respondent no. 1 Company as well. The last column of "Articles of Association" also mandatorily provides for giving names, addresses and description of subscribers. In this case, the subscribers of shares has been completely changed from the Goyal Family to Mehta-Lamba Family and hence there was material alteration of "Articles of Association" of the respondent no. 1 Company.27. In this case, the ownership of a huge Industrial plot measuring 14,533 sq. ft. in the prestigious and economically affluent area of Sahibabad (Ghaziabad) has been transferred from Goyal family to the Mehta- Lamba family for material financial gains, by adopting clever means that too without taking written consent of the Lessor i.e. appellant-Corporation. There are many instances/examples in which the lessee gets allotment of huge industrial plots and thereafter sells the same for huge monetary gains. This adversely affects the aims and objectives of appellant-Corporation i.e. the planned development of industrial areas in the State of Uttar Pradesh. The Honble High Court ought not to have interfered in the matter looking into the public interest involved and Clause 3(p) of the lease deed.The appellant-Corporation clearly brought on record that there is change in "Capital Structure" of the company and the "Capital structure" in common parlance means "debt-equity ratio". In this case admittedly there a huge amount of Rs. 13,14,00,000/- was funded by the foreign company, i.e. "M/s Rotar Ltd." towards settling the debt. In this background the appellant alleged that there is change in "debt-equity ratio" resulting alteration in the "capital structure" of the company.33. There is larger public interest involved in incorporating alteration in "Capital Structure" in Clause 3(p) of the lease deed. There are many instances where the company takes loan from third parties on the security and land and structure allotted to them in lease, keeping in dark the lessor which amounts to incurring liabilities on the property without the knowledge of the lessor. In this case also there was huge amount of debt on the company as it took loan on land and building/factory from different financial institutions. Therefore, there is public interest involved for which consent of lessor was necessary.In the present case it has not been denied that respondent company M/s Super Tannery (India) Ltd. and the other company Super Agro Tech. Ltd. are family held companies of the same family having common Directors/Promoters. Pursuant to the order of amalgamation by the High Court the plot of land in question namely A-9, A-10, Industrial Area Unnao Site-II which was allotted to Super Agro Tech. Ltd. became the asset of the respondent company M/s Super Tannery (India) Ltd. As per Amalgamation Scheme, all the property, rights and power of Super Agro Tech. Ltd., having its office at 184/170, Jajmau Kanpur was transferred without further act or deed to M/s Super Tannery (India) Ltd. Thus it is clear that by the order of the Court the premises in question was transferred in favour of the other Company.41. In view of the aforesaid facts as noticed in each case, we hold that the appellant rightly issued notice demanding transfer fee from each of the respondents and there was no reason for the High Court to interfere with the same.
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State of Madras Vs. A.M. Nanjan and Another | acre. On a reference at the instance of the claimants (respondents herein) the Subordinate Judge raised the compensation to Rs. 1800/- per acre. The State as well as the claimants appealed to the High Court against the judgment and decree of the Subordinate Judge. By a common judgment the High Court dismissed t he States appeal and partly allowed the claimants appeal by raising the rate of compensation to Rs. 3000/- per acre. That is how the two appeals are filed by the State with certificate from the High Court.3. The learned Solicitor General appearing on behalf of the State submits that the High Court erred in law in raising the rate of compensation without any basis and merely on speculation. He particularly draws our attention to an observation of the High Court in the judgment to the effect:".... the Court has necessarily to speculate as to how much the value has increased. Sometimes the Court is obliged to indulge in fair measure of conjecture in regard to the fixation of values......"How ever, when we read the entire observation of the High Court with regard to the aspect of compensation we are unable to hold that the High Court based the compensation on mere speculation or conjecture. The High Court has clearly observed that-".... fortunately in this case-our decision need not depend upon mere speculation- or conjecture as there are materials which as far as possible afford a correct basis for fixing the approximate market value".4. The learned Solicitor General next draws our attention to the various sale deeds produced in the case and took objection to the High Courts placing undue importance on two awards (Exts. B-l0 and B-ll) dated September 27, 1956 and March 30, 1957, respectively. According to the learned Solicitor General these two awards are with regard to land at a place called Kil Kundah about ten miles from the acquired land and cannot be said to be comparable land for the purpose of assessment of compensation. According to the first award (B-10) the rate per acre was Rs. 3000/- and according to the second one (B-11) the rate awarded was Rs. 5263/- per acre. He also submits that the Sale deed (Ext. A-7) of September 27, 1955, which appertains to land i n the identical village Mulligoor and which shows the consideration of Rs. 5000/- for one acre of land should not have been taken as a guide in view of the fact that the area was small with a large number of wattle trees and it was a speculative transaction.5. There are three other sale deeds which the High Court took into consideration, namely, Exts. A-8, A-9 and A-l0 which were transactions between March 1956 and June 1956. The land involved in these transactions was situated in Bikatti village about four miles from the acquired land. The village itself is only 2 to 4 furlongs from Mulligoor. The rate per acre for these lands in 1956 was Rs. 6000/-. The learned Solicitor General submits that these lands were sold as house sites and therefore cannot be safe-guides for the type of the land acquired. The learned Solicitor General also objected to the flat rate of Rs. 3000/- granted by the High Court without due regard to the quality or classification of the land. He points out that even in the award Ext.B-10 all the lands were not priced at the same rate per acre. The rates varied from "Rs. 300/- to Rs. 5263/- per acre considering the fertility of the soil of the fields, their location, importance and registration statistics .... ". Even so, the Land Acquisition officer fixed the value of the land at Rs. 3000/-per acre in the said award taking into consideration several sale deeds. He even fixed Rs. 5000/- per acre for..30 acres of land having regard to the bona fide sale transaction of a portion of the land covered by the same survey number. We are unable to accept the submission that the awards in question cannot be taken as safe-guides in the matter of determination of compensation. As a matter of facts these awards given by the Collector are at least relevant material and may be in the nature of admission with regard to the value of the land on behalf of the State and if the land involved in the awards is comparable land in the reasonable proximity of the acquired land, the rates found in the said documents would be a reliable material to afford a basis to work upon for determination of the compensation on a later date. The awards, therefore, cannot be dismissed as inadmissible for the purpose of determination of the compensation.6. Mr. Natesan, learned counsel for the respondents, has taken us through the evidence of the witnesses examined on behalf of the appellant and we find fro m a perusal of the same that the High Court cannot be said to take an erroneous view when it observed as follows:-"But witnesses examined on the side of the Government have admitted that even close to Survey No. 9/1 the acqui red land, there are facilities like bus-stops, shops etc. From the evidence it is fairly clear that Mulligoor area is not less prominent than Kil-Kundah or Bikatti area Kil-Kundah, Bikatti and Mulligoor are within short distance of one another and, it would not be proper to weigh the comparative value of the lands in the locality on delicate scales. It could reasonably be said that they are all of about equal value".7. We are satisfied after examination of the evidence and the documents that having regard to the location, advantages and facilities of the land and to the admitted rise of price of land between the years 1951 and 1957, it cannot be said that the High Court was far wrong in raising the compensation to Rs. 3000/- per acre in this case. We are also satisfied that the High Court has not departed from any well recognised principles in determining the compensation. | 0[ds]We are unable to accept the submission that the awards in question cannot be taken as safe-guides in the matter of determination of compensation. As a matter of facts these awards given by the Collector are at least relevant material and may be in the nature of admission with regard to the value of the land on behalf of the State and if the land involved in the awards is comparable land in the reasonable proximity of the acquired land, the rates found in the said documents would be a reliable material to afford a basis to work upon for determination of the compensation on a later date. The awards, therefore, cannot be dismissed as inadmissible for the purpose of determination of theare satisfied after examination of the evidence and the documents that having regard to the location, advantages and facilities of the land and to the admitted rise of price of land between the years 1951 and 1957, it cannot be said that the High Court was far wrong in raising the compensation to Rs. 3000/- per acre in this case. We are also satisfied that the High Court has not departed from any well recognised principles in determining the compensation | 0 | 1,266 | 218 | ### 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:
acre. On a reference at the instance of the claimants (respondents herein) the Subordinate Judge raised the compensation to Rs. 1800/- per acre. The State as well as the claimants appealed to the High Court against the judgment and decree of the Subordinate Judge. By a common judgment the High Court dismissed t he States appeal and partly allowed the claimants appeal by raising the rate of compensation to Rs. 3000/- per acre. That is how the two appeals are filed by the State with certificate from the High Court.3. The learned Solicitor General appearing on behalf of the State submits that the High Court erred in law in raising the rate of compensation without any basis and merely on speculation. He particularly draws our attention to an observation of the High Court in the judgment to the effect:".... the Court has necessarily to speculate as to how much the value has increased. Sometimes the Court is obliged to indulge in fair measure of conjecture in regard to the fixation of values......"How ever, when we read the entire observation of the High Court with regard to the aspect of compensation we are unable to hold that the High Court based the compensation on mere speculation or conjecture. The High Court has clearly observed that-".... fortunately in this case-our decision need not depend upon mere speculation- or conjecture as there are materials which as far as possible afford a correct basis for fixing the approximate market value".4. The learned Solicitor General next draws our attention to the various sale deeds produced in the case and took objection to the High Courts placing undue importance on two awards (Exts. B-l0 and B-ll) dated September 27, 1956 and March 30, 1957, respectively. According to the learned Solicitor General these two awards are with regard to land at a place called Kil Kundah about ten miles from the acquired land and cannot be said to be comparable land for the purpose of assessment of compensation. According to the first award (B-10) the rate per acre was Rs. 3000/- and according to the second one (B-11) the rate awarded was Rs. 5263/- per acre. He also submits that the Sale deed (Ext. A-7) of September 27, 1955, which appertains to land i n the identical village Mulligoor and which shows the consideration of Rs. 5000/- for one acre of land should not have been taken as a guide in view of the fact that the area was small with a large number of wattle trees and it was a speculative transaction.5. There are three other sale deeds which the High Court took into consideration, namely, Exts. A-8, A-9 and A-l0 which were transactions between March 1956 and June 1956. The land involved in these transactions was situated in Bikatti village about four miles from the acquired land. The village itself is only 2 to 4 furlongs from Mulligoor. The rate per acre for these lands in 1956 was Rs. 6000/-. The learned Solicitor General submits that these lands were sold as house sites and therefore cannot be safe-guides for the type of the land acquired. The learned Solicitor General also objected to the flat rate of Rs. 3000/- granted by the High Court without due regard to the quality or classification of the land. He points out that even in the award Ext.B-10 all the lands were not priced at the same rate per acre. The rates varied from "Rs. 300/- to Rs. 5263/- per acre considering the fertility of the soil of the fields, their location, importance and registration statistics .... ". Even so, the Land Acquisition officer fixed the value of the land at Rs. 3000/-per acre in the said award taking into consideration several sale deeds. He even fixed Rs. 5000/- per acre for..30 acres of land having regard to the bona fide sale transaction of a portion of the land covered by the same survey number. We are unable to accept the submission that the awards in question cannot be taken as safe-guides in the matter of determination of compensation. As a matter of facts these awards given by the Collector are at least relevant material and may be in the nature of admission with regard to the value of the land on behalf of the State and if the land involved in the awards is comparable land in the reasonable proximity of the acquired land, the rates found in the said documents would be a reliable material to afford a basis to work upon for determination of the compensation on a later date. The awards, therefore, cannot be dismissed as inadmissible for the purpose of determination of the compensation.6. Mr. Natesan, learned counsel for the respondents, has taken us through the evidence of the witnesses examined on behalf of the appellant and we find fro m a perusal of the same that the High Court cannot be said to take an erroneous view when it observed as follows:-"But witnesses examined on the side of the Government have admitted that even close to Survey No. 9/1 the acqui red land, there are facilities like bus-stops, shops etc. From the evidence it is fairly clear that Mulligoor area is not less prominent than Kil-Kundah or Bikatti area Kil-Kundah, Bikatti and Mulligoor are within short distance of one another and, it would not be proper to weigh the comparative value of the lands in the locality on delicate scales. It could reasonably be said that they are all of about equal value".7. We are satisfied after examination of the evidence and the documents that having regard to the location, advantages and facilities of the land and to the admitted rise of price of land between the years 1951 and 1957, it cannot be said that the High Court was far wrong in raising the compensation to Rs. 3000/- per acre in this case. We are also satisfied that the High Court has not departed from any well recognised principles in determining the compensation.
### Response:
0
### Explanation:
We are unable to accept the submission that the awards in question cannot be taken as safe-guides in the matter of determination of compensation. As a matter of facts these awards given by the Collector are at least relevant material and may be in the nature of admission with regard to the value of the land on behalf of the State and if the land involved in the awards is comparable land in the reasonable proximity of the acquired land, the rates found in the said documents would be a reliable material to afford a basis to work upon for determination of the compensation on a later date. The awards, therefore, cannot be dismissed as inadmissible for the purpose of determination of theare satisfied after examination of the evidence and the documents that having regard to the location, advantages and facilities of the land and to the admitted rise of price of land between the years 1951 and 1957, it cannot be said that the High Court was far wrong in raising the compensation to Rs. 3000/- per acre in this case. We are also satisfied that the High Court has not departed from any well recognised principles in determining the compensation
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M/S. Southern Ispat Ltd Vs. State Of Kerala | made on 17.7.1995. The appellants factory had yet to be constructed and machinery to be transported and installed after the construction of the factory building. Undoubtedly, the application was moved on 17.7.1995 in anticipation. The material on record suggests that there was acute shortage of electricity as a result of which even domestic power connections were being refused. The high tension power supply required by the appellant had to be specially arranged by drawing the electrical lines on OYEC basis by construction of PSC polls along the line at the Appellants cost. This amount was deposited on 11.12.1996, only a few days before the concession was about to lapse. Having examined the correspondence on record, we are not in a position to accept the contention of the appellant that the respondents had acted with undue tardiness or lethargy. Further, the remittances of Rs. 8,54,700/- and Rs. 3,45,200/- made by way of security deposit for executing the power supply agreement were actually made on 1.2.1997 and 4.2.1997, after the expiry of the period of concession. 22. The KSEB made the power allocation on the specific condition that power would be supplied subject to drawing of 11 KVA exclusive feeder line from 110 KV Parali station under the OYEC scheme. The electric wiring was completed in the factory of the appellant and the wiring contractor submitted completion certificate on 29.8.1998. There were some deficiencies which were rectified by the appellant only on 1.12.1998. The electrical inspector is required to sanction the electrical wiring and this was done on 14.12.1998. Power supply commenced only on 19.12.1999. Thus, upto and including 19.2.1999 the appellant had not functioned with the power supplied by the KSEB either temporarily or on permanent basis. 23. The contention of the appellant that commercial production had commenced in December 1996 can hardly be accepted. The appellant was setting up the factory for manufacturing of alloy steel M.S. Sections, C.T.D. bars, Steel ingots and so on with a planed production of 24000 tons of iron and steel ingots and 24000 tons of iron and steel bars, coils etc. It hardly stands to reason that commercial production of such a factory could have commenced by using of a 125 KVA diesel generator set. There is also no material on record to show that the appellant had run the factory by using 125 KVA generator set during the period December 1996 to February 1999. It is pointed out by the High Court, and rightly in our view, that even the diesel unit could also not be used until permission was obtained under Rule 65 of the Indian Electricity Rules, 1956, from the Chief Electrical Inspector. Such permission was obtained from the Chief Electrical Inspector only on 14.12.1998. Thus, it is clear that even the order for energisation of the 125 KVA diesel generator set was accorded to the appellant only in 1998. 24. In these circumstances, we find it difficult to accept the contention of the appellant that commercial production had started in December 1996 by using diesel generator set as alleged. 25. The appellant contends that the certificate issued by the Kerala Financial Corporation dated 11.9.1998 is conclusive evidence of the fact that the appellant had commenced commercial production in December 1996. Interestingly, the KFCs certificate is very guarded and states: This is to certify that Southern Ispat Limited has commenced its commercial production of C.I. Shot and grits with the help of Generator set as Kottayi in Palakkad district on the 14th day of December, 1996 as per records submitted by the company. (Emphasis is ours) 26. In the first place, we are unable to accept that the certificate issued by the KFC is conclusive in the matter. At the highest, it may be one of the facts to be considered by the KSEB in the light of all other relevant material. 27. The High Court has pointed out a series of difficulties in accepting this certificate as conclusive. Firstly, the certificate has been issued only on 11.9.1998. The certificate is issued To whom so ever it may concern. There is no reference to the electrical Inspectors findings on the matter of conditions of appellants high tension installations, which was a pre-requisite for the KFC to issue a proper certificate for the purpose of entitlement to the pre-1992 tariff concessions. There is nothing to show that the KFC had made any inquiry of their own. On the contrary, as the certificate shows, the certificate appears to have been issued merely on the basis of record produced by the company. The record produced by the company could not have shown that the appellant company had started commercial production. The High Court has also disbelieved and rejected the other documents relied upon in support of the appellants case of commencing of commercial production prior to 31.12.1996.28. The High Court points out the fact that promoters of the appellant company had a factory at Raipur in Madhya Pradesh and the possibility of the Appellant having brought manufactured goods from there and sold them within the State of Kerala to create documents to show that the production started before 1996 could not be ruled out. Even the documents produced by the appellant do not show any continuous commercial production during the period December 1996 to February 1999. We agree with the conclusion of the High Court that it was not sufficient for showing commercial production that some small items were sold by the appellant in December 1996 and nil assessment of sales tax was made and a small excise duty payment was also made. We agree with the High Courts view that these were all self-serving documents created as evidence for commercial production prior to the cut off date of 31.12.1996. 29. Upon an overall assessment of the facts on record, we are not satisfied that the view taken by the Division Bench of the High Court on facts is so perverse that it requires interference by this Court under Article 136 of the Constitution. | 0[ds]29. Upon an overall assessment of the facts on record, we are not satisfied that the view taken by the Division Bench of the High Court on facts is so perverse that it requires interference by this Court under Article 136 of the Constitution | 0 | 4,422 | 50 | ### 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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made on 17.7.1995. The appellants factory had yet to be constructed and machinery to be transported and installed after the construction of the factory building. Undoubtedly, the application was moved on 17.7.1995 in anticipation. The material on record suggests that there was acute shortage of electricity as a result of which even domestic power connections were being refused. The high tension power supply required by the appellant had to be specially arranged by drawing the electrical lines on OYEC basis by construction of PSC polls along the line at the Appellants cost. This amount was deposited on 11.12.1996, only a few days before the concession was about to lapse. Having examined the correspondence on record, we are not in a position to accept the contention of the appellant that the respondents had acted with undue tardiness or lethargy. Further, the remittances of Rs. 8,54,700/- and Rs. 3,45,200/- made by way of security deposit for executing the power supply agreement were actually made on 1.2.1997 and 4.2.1997, after the expiry of the period of concession. 22. The KSEB made the power allocation on the specific condition that power would be supplied subject to drawing of 11 KVA exclusive feeder line from 110 KV Parali station under the OYEC scheme. The electric wiring was completed in the factory of the appellant and the wiring contractor submitted completion certificate on 29.8.1998. There were some deficiencies which were rectified by the appellant only on 1.12.1998. The electrical inspector is required to sanction the electrical wiring and this was done on 14.12.1998. Power supply commenced only on 19.12.1999. Thus, upto and including 19.2.1999 the appellant had not functioned with the power supplied by the KSEB either temporarily or on permanent basis. 23. The contention of the appellant that commercial production had commenced in December 1996 can hardly be accepted. The appellant was setting up the factory for manufacturing of alloy steel M.S. Sections, C.T.D. bars, Steel ingots and so on with a planed production of 24000 tons of iron and steel ingots and 24000 tons of iron and steel bars, coils etc. It hardly stands to reason that commercial production of such a factory could have commenced by using of a 125 KVA diesel generator set. There is also no material on record to show that the appellant had run the factory by using 125 KVA generator set during the period December 1996 to February 1999. It is pointed out by the High Court, and rightly in our view, that even the diesel unit could also not be used until permission was obtained under Rule 65 of the Indian Electricity Rules, 1956, from the Chief Electrical Inspector. Such permission was obtained from the Chief Electrical Inspector only on 14.12.1998. Thus, it is clear that even the order for energisation of the 125 KVA diesel generator set was accorded to the appellant only in 1998. 24. In these circumstances, we find it difficult to accept the contention of the appellant that commercial production had started in December 1996 by using diesel generator set as alleged. 25. The appellant contends that the certificate issued by the Kerala Financial Corporation dated 11.9.1998 is conclusive evidence of the fact that the appellant had commenced commercial production in December 1996. Interestingly, the KFCs certificate is very guarded and states: This is to certify that Southern Ispat Limited has commenced its commercial production of C.I. Shot and grits with the help of Generator set as Kottayi in Palakkad district on the 14th day of December, 1996 as per records submitted by the company. (Emphasis is ours) 26. In the first place, we are unable to accept that the certificate issued by the KFC is conclusive in the matter. At the highest, it may be one of the facts to be considered by the KSEB in the light of all other relevant material. 27. The High Court has pointed out a series of difficulties in accepting this certificate as conclusive. Firstly, the certificate has been issued only on 11.9.1998. The certificate is issued To whom so ever it may concern. There is no reference to the electrical Inspectors findings on the matter of conditions of appellants high tension installations, which was a pre-requisite for the KFC to issue a proper certificate for the purpose of entitlement to the pre-1992 tariff concessions. There is nothing to show that the KFC had made any inquiry of their own. On the contrary, as the certificate shows, the certificate appears to have been issued merely on the basis of record produced by the company. The record produced by the company could not have shown that the appellant company had started commercial production. The High Court has also disbelieved and rejected the other documents relied upon in support of the appellants case of commencing of commercial production prior to 31.12.1996.28. The High Court points out the fact that promoters of the appellant company had a factory at Raipur in Madhya Pradesh and the possibility of the Appellant having brought manufactured goods from there and sold them within the State of Kerala to create documents to show that the production started before 1996 could not be ruled out. Even the documents produced by the appellant do not show any continuous commercial production during the period December 1996 to February 1999. We agree with the conclusion of the High Court that it was not sufficient for showing commercial production that some small items were sold by the appellant in December 1996 and nil assessment of sales tax was made and a small excise duty payment was also made. We agree with the High Courts view that these were all self-serving documents created as evidence for commercial production prior to the cut off date of 31.12.1996. 29. Upon an overall assessment of the facts on record, we are not satisfied that the view taken by the Division Bench of the High Court on facts is so perverse that it requires interference by this Court under Article 136 of the Constitution.
### Response:
0
### Explanation:
29. Upon an overall assessment of the facts on record, we are not satisfied that the view taken by the Division Bench of the High Court on facts is so perverse that it requires interference by this Court under Article 136 of the Constitution
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Osmanali Chous Vs. New India Assurance Co. Ltd. and Ors | Kurian Joseph, J.1. Leave granted.2. The Appellant approached the Commissioner, Workmens Compensation, Latur, Maharashtra for compensation in which it was held that he lost two toes of his left leg and that there were also burn injuries. The Appellant was a driver. By order dated 09.07.2012 the Commissioner, Workmens Compensation awarded compensation of Rs. 2,79,367/- with interest @ 12% per annum from the expiry of one month from the date of the accident till realization. The insurer, Respondent No. 1 herein, challenged the award before the High Court. The High Court as per the impugned order reduced the compensation to a meager sum of Rs. 83,664/-.3. Despite service of notice there is no appearance for Respondent No. 1/Insurance Company.4. Be that as it may, we have heard the learned Counsel for the Appellant and learned Counsel for Respondent No. 2, who is the owner of the vehicle. We also gone through the impugned judgment. We find absolutely no discussion as to the basis for reducing the compensation, On the contrary, the High Court has endorsed the findings of fact as recorded by the Commissioner, Workmens Compensation regarding the injuries. But, according to the High Court, it was not possible that the claimant has lost earning capacity by 100%. But that was not the views of the Commissioner, Workmens Compensation. The discussion is available at paragraphs 15 and 16 of the judgment of the Commissioner, Workmens Compensation, which are extracted below:15) The applicant has raised the plea that he has sustained permanent physical disability and total loss in his earning capacity by the injuries caused in accident. To prove this aspect he has examined qualified medical practitioner Dr. Kazi at Exh. U-19. He has deposed that on radiological and clinical examination of applicant he found the loss of 4th and 5th toe of left feet and hypoesthesia and loss of weak grip of right hand, both feet, he assessed permanent physical disability to the extent of 21%. The applicant is unable to drive in future and because of that he has assessed total loss in his earning capacity. Accordingly he has issued certificate at Exh. U-20 and U-21 respectively. The Respondent No. 2 has cross examined him but he has not challenged the calculation of assessment of permanent physical disability on the basis of particulars given by medical officers. No doubt the Respondent has tried to say that the medical officer of Dist. Hospital Tandur has not mentioned the injuries caused to applicant except the head injury. It is pertinent to note that the FIR is lodged on day of incident itself. In FIR there is mention of injuries caused to leg and hand of applicant. Therefore mere non mentioning of injury by medical officer in one simple chit, is not sufficient to disbelieve the story and testimony of applicant and medical officer. Therefore, there is no substance in plea of Respondent. On this count it is clear that in accident the applicant sustained permanent physical disability to the extent of 21% as deposed by qualified medical practitioner.16) It is true, there is no specific formula to evaluate the loss of earning capacity. On perusal of injuries i.e. amputation of 4th and 5th toe of left leg of applicant, it seems that he can walk properly. Though the applicant is unable to drive the vehicle in future, but he can do other work for earning as observed in the case of Palraj v. Divisional Controller reported in 2011 AAC 393 (SC). Till today the applicant has not applied to the RTO for cancellation of his driving licence. Though the validity period of driving licence is over on 12.6.09, the applicant has not taken steps prior to expiry of validity period and used such licence till its expiry. On taking into consideration the loss of toes and loss of grip feet, we can assess his loss to the extent of 70% equated with loss of the use of limb i.e. left feet below the hip. I hold accordingly and answer issue No. 3 in partly affirmative.5. In that view of the matter, at paragraph 18, having regard to the functional disability (though that expression as such is not used by the Commissioner, Workmens Compensation), compensation was awarded and the computation details are available at paragraph 18, which reads as follows:18) While determining issues No. 1 to 3 and issue No. 5 it is observed that the applicant met to an accident during course of his employment with Respondent No. 1 having monthly wages of Rs. 4,000/- and at that time he was having age 46 years and both the Respondents are jointly and severally liable to pay the compensation. The monthly wages Rs. 4000/- equated to 60% and such wages Rs. 2400/- multiplied with relevant factor 166.29 with reference to age 46 years, and reduced equated with loss of earning capacity to the extent of 70%, the applicant is entitled for compensation to extent of Rs. 2,79,367/-.6. Unfortunately, the High Court has not referred to any of these discussions while reducing the compensation to 1/3rd of what has been awarded by the Commissioner, Workmens Compensation. It may be seen that an appeal before the High Court against an award of the Commissioner, Workmens Compensation is only on a substantial question of law. We do not find that there was any substantial question of law raised by the Insurance Company either. | 1[ds]4. Be that as it may, we have heard the learned Counsel for the Appellant and learned Counsel for Respondent No. 2, who is the owner of the vehicle. We also gone through the impugned judgment. We find absolutely no discussion as to the basis for reducing the compensation, On the contrary, the High Court has endorsed the findings of fact as recorded by the Commissioner, Workmens Compensation regarding the injuries. But, according to the High Court, it was not possible that the claimant has lost earning capacity by 100%. But that was not the views of the Commissioner, Workmens Compensation5. In that view of the matter, at paragraph 18, having regard to the functional disability (though that expression as such is not used by the Commissioner, Workmens Compensation), compensation was awarded and the computation details are available at paragraph 18, which reads as follows:18) While determining issues No. 1 to 3 and issue No. 5 it is observed that the applicant met to an accident during course of his employment with Respondent No. 1 having monthly wages of Rs. 4,000/- and at that time he was having age 46 years and both the Respondents are jointly and severally liable to pay the compensation. The monthly wages Rs. 4000/- equated to 60% and such wages Rs. 2400/- multiplied with relevant factor 166.29 with reference to age 46 years, and reduced equated with loss of earning capacity to the extent of 70%, the applicant is entitled for compensation to extent of Rs. 2,79,367/-6. Unfortunately, the High Court has not referred to any of these discussions while reducing the compensation to 1/3rd of what has been awarded by the Commissioner, Workmens Compensation. It may be seen that an appeal before the High Court against an award of the Commissioner, Workmens Compensation is only on a substantial question of law. We do not find that there was any substantial question of law raised by the Insurance Company either. | 1 | 1,003 | 372 | ### 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:
Kurian Joseph, J.1. Leave granted.2. The Appellant approached the Commissioner, Workmens Compensation, Latur, Maharashtra for compensation in which it was held that he lost two toes of his left leg and that there were also burn injuries. The Appellant was a driver. By order dated 09.07.2012 the Commissioner, Workmens Compensation awarded compensation of Rs. 2,79,367/- with interest @ 12% per annum from the expiry of one month from the date of the accident till realization. The insurer, Respondent No. 1 herein, challenged the award before the High Court. The High Court as per the impugned order reduced the compensation to a meager sum of Rs. 83,664/-.3. Despite service of notice there is no appearance for Respondent No. 1/Insurance Company.4. Be that as it may, we have heard the learned Counsel for the Appellant and learned Counsel for Respondent No. 2, who is the owner of the vehicle. We also gone through the impugned judgment. We find absolutely no discussion as to the basis for reducing the compensation, On the contrary, the High Court has endorsed the findings of fact as recorded by the Commissioner, Workmens Compensation regarding the injuries. But, according to the High Court, it was not possible that the claimant has lost earning capacity by 100%. But that was not the views of the Commissioner, Workmens Compensation. The discussion is available at paragraphs 15 and 16 of the judgment of the Commissioner, Workmens Compensation, which are extracted below:15) The applicant has raised the plea that he has sustained permanent physical disability and total loss in his earning capacity by the injuries caused in accident. To prove this aspect he has examined qualified medical practitioner Dr. Kazi at Exh. U-19. He has deposed that on radiological and clinical examination of applicant he found the loss of 4th and 5th toe of left feet and hypoesthesia and loss of weak grip of right hand, both feet, he assessed permanent physical disability to the extent of 21%. The applicant is unable to drive in future and because of that he has assessed total loss in his earning capacity. Accordingly he has issued certificate at Exh. U-20 and U-21 respectively. The Respondent No. 2 has cross examined him but he has not challenged the calculation of assessment of permanent physical disability on the basis of particulars given by medical officers. No doubt the Respondent has tried to say that the medical officer of Dist. Hospital Tandur has not mentioned the injuries caused to applicant except the head injury. It is pertinent to note that the FIR is lodged on day of incident itself. In FIR there is mention of injuries caused to leg and hand of applicant. Therefore mere non mentioning of injury by medical officer in one simple chit, is not sufficient to disbelieve the story and testimony of applicant and medical officer. Therefore, there is no substance in plea of Respondent. On this count it is clear that in accident the applicant sustained permanent physical disability to the extent of 21% as deposed by qualified medical practitioner.16) It is true, there is no specific formula to evaluate the loss of earning capacity. On perusal of injuries i.e. amputation of 4th and 5th toe of left leg of applicant, it seems that he can walk properly. Though the applicant is unable to drive the vehicle in future, but he can do other work for earning as observed in the case of Palraj v. Divisional Controller reported in 2011 AAC 393 (SC). Till today the applicant has not applied to the RTO for cancellation of his driving licence. Though the validity period of driving licence is over on 12.6.09, the applicant has not taken steps prior to expiry of validity period and used such licence till its expiry. On taking into consideration the loss of toes and loss of grip feet, we can assess his loss to the extent of 70% equated with loss of the use of limb i.e. left feet below the hip. I hold accordingly and answer issue No. 3 in partly affirmative.5. In that view of the matter, at paragraph 18, having regard to the functional disability (though that expression as such is not used by the Commissioner, Workmens Compensation), compensation was awarded and the computation details are available at paragraph 18, which reads as follows:18) While determining issues No. 1 to 3 and issue No. 5 it is observed that the applicant met to an accident during course of his employment with Respondent No. 1 having monthly wages of Rs. 4,000/- and at that time he was having age 46 years and both the Respondents are jointly and severally liable to pay the compensation. The monthly wages Rs. 4000/- equated to 60% and such wages Rs. 2400/- multiplied with relevant factor 166.29 with reference to age 46 years, and reduced equated with loss of earning capacity to the extent of 70%, the applicant is entitled for compensation to extent of Rs. 2,79,367/-.6. Unfortunately, the High Court has not referred to any of these discussions while reducing the compensation to 1/3rd of what has been awarded by the Commissioner, Workmens Compensation. It may be seen that an appeal before the High Court against an award of the Commissioner, Workmens Compensation is only on a substantial question of law. We do not find that there was any substantial question of law raised by the Insurance Company either.
### Response:
1
### Explanation:
4. Be that as it may, we have heard the learned Counsel for the Appellant and learned Counsel for Respondent No. 2, who is the owner of the vehicle. We also gone through the impugned judgment. We find absolutely no discussion as to the basis for reducing the compensation, On the contrary, the High Court has endorsed the findings of fact as recorded by the Commissioner, Workmens Compensation regarding the injuries. But, according to the High Court, it was not possible that the claimant has lost earning capacity by 100%. But that was not the views of the Commissioner, Workmens Compensation5. In that view of the matter, at paragraph 18, having regard to the functional disability (though that expression as such is not used by the Commissioner, Workmens Compensation), compensation was awarded and the computation details are available at paragraph 18, which reads as follows:18) While determining issues No. 1 to 3 and issue No. 5 it is observed that the applicant met to an accident during course of his employment with Respondent No. 1 having monthly wages of Rs. 4,000/- and at that time he was having age 46 years and both the Respondents are jointly and severally liable to pay the compensation. The monthly wages Rs. 4000/- equated to 60% and such wages Rs. 2400/- multiplied with relevant factor 166.29 with reference to age 46 years, and reduced equated with loss of earning capacity to the extent of 70%, the applicant is entitled for compensation to extent of Rs. 2,79,367/-6. Unfortunately, the High Court has not referred to any of these discussions while reducing the compensation to 1/3rd of what has been awarded by the Commissioner, Workmens Compensation. It may be seen that an appeal before the High Court against an award of the Commissioner, Workmens Compensation is only on a substantial question of law. We do not find that there was any substantial question of law raised by the Insurance Company either.
|
Indian Oil Corporation Limited Vs. State of Bihar & Another | plea also does not avail the Appellant for the simple reason that there are two taxes which are levied in the present case, one is VAT and the other is Entry Tax. In one case, VAT is set off against the Entry Tax and in another, VAT is not so set off. Any anomaly arising from the aforesaid position would not lead to a charge of clear and hostile discrimination.24. When it comes to taxing statutes, the law laid down by this Court is clear that Article 14 of the Constitution can be said to be breached only when there is perversity or gross disparity resulting in clear and hostile discrimination practiced by the legislature, without any rational justification for the same. (See The Twyford Tea Co. Ltd. & Anr. v. The State of Kerala & Anr., (1970) 1 SCC 189 at paras 16 and 19; Ganga Sugar Corporation Ltd. v. State of Uttar Pradesh & Ors., (1980) 1 SCC 223 at 236 and P.M. Ashwathanarayana Setty & Ors. v. State of Karnataka & Ors., (1989) Supp. (1) SCC 696 at 724- 726).25. We must also not forget that no assessee can claim set off as a matter of right and the levy of Entry Tax cannot be assailed as unconstitutional only because set off is not given. (See Godrej & Boyce Mfg. Co. Pvt. Ltd. & Ors. v. Commissioner of Sales Tax & Ors., (1992) 3 SCC 624 at para 9 and State of Karnataka v. M.K. Agro Tech Pvt. Ltd, C.A. 15049-15069 of 2017 decided on 22nd September, 2017, at para 31).26. However, Shri Datar referred to observations contained in Ayurveda Pharmacy & Anr. v. State of Tamil Nadu, (1989) 2 SCC 285 , Aashirwad Films v. Union of India & Ors., (2007) 6 SCC 624 , State of Uttar Pradesh & Ors. v. Deepak Fertilizers and Petrochemical Corporation Ltd., (2007) 10 SCC 342 and Union of India & Ors. v. N.S.Rathnam and Sons, (2015) 10 SCC 681. Each of these judgments concerned taxation rates that were ex-facie arbitrary and/or discriminatory, in that the very same tax was levied at different rates without any rational justification for the same and were, thus, struck down as being arbitrary and/or discriminatory. None of these judgments would have any application to the facts of the present case, in which it is clear that the plea of discrimination is qua a set off of one tax against a separate and independent tax imposed. This fact circumstance would be sufficient to distinguish the said judgments from the facts of the present case.27. Since we have found that the plea of discrimination must fail on the aforesaid grounds, no question of reading down the provisions would then arise.28. However, when it comes to the levy of interest, the impugned judgment dated 19th April, 2017, held that there can be no levy of interest as there is no substantive statutory provision for the same. The assessee succeeded on this point and the State has not filed any appeal against the same. Therefore, the finding qua interest, having become final, cannot be interfered with by us.29. However, Shri S. Ganesh, learned Senior Advocate appearing for the Revenue, has argued before us that, as a matter of restitution, interest must be granted in favour of the Revenue for the period for which stay orders have been obtained in writ petitions filed in 2014 and 2015. This Court has held that, if a party ultimately succeeds, it must be put back in the same position as if no such stay orders have been passed, and for this purpose he referred to and relied upon State of Rajasthan & Anr. v. J.K. Synthetics Limited & Anr., (2011) 12 SCC 518 at paras 18 and 23 and Nava Bharat Ferro Alloys Limited v. Transmission Corporation of Andhra Pradesh Limited & Anr., 2011(3) R.C.R.(Civil) 599 : (2011) 1 SCC 216 at paras 16 to 27.30. It will be noticed, on a reading of para 23 of Bharat Ferro Alloys (supra), that ultimately restitution is not a matter of right, but is a matter of discretion, and that hardships on both sides must be looked at in order to find a pragmatic solution by way of restitution. Given the fact that the State continued with the grant of set off till the year 2014, and reopened assessments beginning from 2008-09 based on an audit objection, we are of the view that it would be highly inequitable at this juncture to allow the State to charge interest, which would arise as a result of stay orders being passed in the writ petitions. The principal amount also is not something that the Appellant was able to pass on to the ultimate consumer in the peculiar facts of this case. Had the Appellant known, from the assessment year 2008-09, and had the Department raised an objection in that very year, it would have arranged its affairs in such a manner as to avail of set off under the Entry Tax Act, which it did after 2014, when the audit objections were raised for the first time. On the facts of this case, therefore, we are not inclined to exercise our discretion to grant restitutional interest to the Revenue.31. The matter, however, does not end here. Shri Datar pointed out that after the audit objections; a show cause notice dated 16th April, 2014 was issued by the authority, which was replied to by letters dated 16th June, 2014 and 27th June, 2014, in which the assessee repeatedly asked for time to make a detailed objection on the merits of the case. Finally, by a letter dated 22nd August, 2014, the assessee was able to muster certain certificates for the assessment years in question given by BPCL and HPCL to show that a large amount of the sales made by them in turn to their retail consumers and though retail outlets were outside the local area of Patna, and, therefore, not exigible to Entry Tax at all. | 1[ds]13. It will be seen that the tax leviable under the Entry Tax Act shall be paid by every dealer liable to pay tax under the VAT Act. Under Section 3(1) of the VAT Act, all persons who are registered dealers under the Bihar Finance Act, 1981, as it stood before its repeal, are liable to pay tax under the said Act on sales and purchases made by them. There is no dispute that the Appellant is a registered dealer under the Bihar Finance Act, 1981 and is thus liable to pay tax under the VAT Act. Condition (i), therefore, is certainly fulfilled.14. So far as Condition (ii) is concerned, the Appellant is an importer of scheduled goods, viz., petroleumcan be seen from the aforesaid definition that an importer would necessarily refer to a dealer who imports scheduled goods from outside the state.As is clear from Section 13(1) of the VAT Act, all sales of Schedule II and III goods have to suffer a levy of tax at each point in the series of sales by a dealer liable to pay tax under the said Act. This is subject, however, to Section 16, by which once the goods have suffered tax, input tax credit is given at every stage thereafter. This scheme applies generally down the line to all Schedule II and III goods. However, when it comes to tax on the sale of goods specified in Schedule IV, Item 3 of which includes High Speed Diesel oil and light diesel oil, the levy under the said Act is only at such point as the State Government may, by notification, specify. This takes us to the notification dated 4th May, 2006, which clearly states that when it comes to motor spirit, High Speed Diesel oil and light diesel oil, the levy is at the point of sale by oil companies to the retailer or direct to the consumer. On a reading of the aforesaid notification, it is clear that when a sale is effected by the Appellant to BPCL and HPCL, there is no levy of any VAT that is contemplated at this point. The VAT gets levied only at the next point in the chain of sales, which is the sale from BPCL and HPCL to their retailers and/or consumers. Thus, it is clear that the second condition is not fulfilled as the importer of the scheduled goods i.e. the Appellant is not at all liable to pay tax under the VAT Act.16. So far as the Condition (iii) is concerned, there being no levy on the Appellant, the Appellant does not incur any tax liability at the rates specified under Section 14 of the VAT Act.17. So far as Condition (iv) is concerned, in any case, this must be by virtue of sale of the very imported scheduled goods, which means that the sale must be by the Appellant itself and not by the other OMCs.Further, Condition (v) must be that "his" i.e. the Appellants tax liability under the VAT Act will then stand reduced, and this is only to the extent of tax paid under the Act. This condition is also not met inasmuch as the set off is person specific and not goods specific, as is correctly contended by Shri Ganesh, learned Senior Advocate, appearing on behalf of the Revenue.19. Thus, it will be seen that on a literal reading of Section 3(2) second proviso, the Appellant would not be entitled to claim setour opinion, it is clear that this judgment would have no direct application in the facts of the present case, inasmuch as the aforesaid judgment related to exemption of sales tax on production of additional cement in order that production of cement be boosted in the State. The expression "liable to pay tax" was held to apply because the question of exemption would arise only if there is a liability to pay tax in the first place. Cement was, at the relevant time, "scheduled" goods and, therefore, sales tax was liable to be paid on such goods. It is only on account of an exemption notification issued under Section 7 of the Act, as it then stood, that additional production of cement stood exempted from payment of sales tax. In the present case, there is no exemption at all. The present is a case where the importer under the second proviso must first be liable to pay tax under the Act. We have already seen that the Appellant is a registered dealer under Section 3(1) of the VAT Act and would be a dealer liable to pay tax under the aforesaid Act within the meaning of the enacting part of Section 3(2) of the Entry Tax Act. However, it is clear that as importer of scheduled goods, the Appellant must be liable to pay tax under the VAT Act. As has already been found, the Appellant as an importer of scheduled goods is not liable to pay tax as the levy of tax is itself postponed when the Appellant sells the oil to another OMC, and VAT is leviable only on the transaction between the said OMC and its retailer or other customers. In the ACC (supra) case, the levy on cement was always there, being a scheduled item, an exception to which by way of exemption was allowed only on additional production of cement. It is also important to note that the expression "by virtue of sale of imported scheduled goods or sale of goods manufactured by consuming such imported scheduled goods ......." was added later by way of amendment and was not contained in Section 3(2) second proviso which was construed in the ACC (supra) case. This condition has clearly not been met in the present case as has been held by us hereinabove. In any case, the effect of the aforesaid judgment has been nullified by the addition of a third proviso to Section 3(2) by the Bihar Finance Act, 2006, which specifically provides that exempted goods will not be entitled to set off. For all these reasons, we are of the view that this judgment does not take the Appellants case very muchcase again need not detain us any further because we are not concerned with dealers liable to pay tax, but with importers of scheduled goods who are liable to pay tax in order that Section 3(2) second proviso is attracted. We have already held that in the enacting part of Section 3(2), the Appellant is certainly a dealer liable to pay tax under the VAT Act, in that it is a registered dealer falling within Section 3(1) of the said Act. Therefore, any argument based on gross turnover is wholly unnecessary to include the Appellant under Section 3(2) of the Entry Taxthis it can scarcely be held that this being the object, the second proviso must be completely altered in order that it subserves such object. We have already held that a literal reading of the second proviso, which gives a concession by way of set off, cannot possibly be held to be altered qua every material condition, so that the Appellant be entitled to claim a set off. Consequently, this judgment and other judgments cited by the Appellant, such as Commissioner of Income Tax, Bangalore v. J.H. Gotla, Yadagiri, (1985) 4 SCC 343 , to buttress the plea of purposive interpretation cannot be held to apply in the facts and circumstances of thisare afraid that this plea also does not avail the Appellant for the simple reason that there are two taxes which are levied in the present case, one is VAT and the other is Entry Tax. In one case, VAT is set off against the Entry Tax and in another, VAT is not so set off. Any anomaly arising from the aforesaid position would not lead to a charge of clear and hostile discrimination.24. When it comes to taxing statutes, the law laid down by this Court is clear that Article 14 of the Constitution can be said to be breached only when there is perversity or gross disparity resulting in clear and hostile discrimination practiced by the legislature, without any rational justification for the same.We must also not forget that no assessee can claim set off as a matter of right and the levy of Entry Tax cannot be assailed as unconstitutional only because set off is notof these judgments concerned taxation rates that werearbitrary and/or discriminatory, in that the very same tax was levied at different rates without any rational justification for the same and were, thus, struck down as being arbitrary and/or discriminatory. None of these judgments would have any application to the facts of the present case, in which it is clear that the plea of discrimination is qua a set off of one tax against a separate and independent tax imposed. This fact circumstance would be sufficient to distinguish the said judgments from the facts of the present case.27. Since we have found that the plea of discrimination must fail on the aforesaid grounds, no question of reading down the provisions would then arise.28. However, when it comes to the levy of interest, the impugned judgment dated 19th April, 2017, held that there can be no levy of interest as there is no substantive statutory provision for the same. The assessee succeeded on this point and the State has not filed any appeal against the same. Therefore, the finding qua interest, having become final, cannot be interfered with by us.It will be noticed, on a reading of para 23 of Bharat Ferro Alloys (supra), that ultimately restitution is not a matter of right, but is a matter of discretion, and that hardships on both sides must be looked at in order to find a pragmatic solution by way of restitution. Given the fact that the State continued with the grant of set off till the year 2014, and reopened assessments beginning frombased on an audit objection, we are of the view that it would be highly inequitable at this juncture to allow the State to charge interest, which would arise as a result of stay orders being passed in the writ petitions. The principal amount also is not something that the Appellant was able to pass on to the ultimate consumer in the peculiar facts of this case. Had the Appellant known, from the assessment yearand had the Department raised an objection in that very year, it would have arranged its affairs in such a manner as to avail of set off under the Entry Tax Act, which it did after 2014, when the audit objections were raised for the first time. On the facts of this case, therefore, we are not inclined to exercise our discretion to grant restitutional interest to the Revenue. | 1 | 9,475 | 2,015 | ### 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:
plea also does not avail the Appellant for the simple reason that there are two taxes which are levied in the present case, one is VAT and the other is Entry Tax. In one case, VAT is set off against the Entry Tax and in another, VAT is not so set off. Any anomaly arising from the aforesaid position would not lead to a charge of clear and hostile discrimination.24. When it comes to taxing statutes, the law laid down by this Court is clear that Article 14 of the Constitution can be said to be breached only when there is perversity or gross disparity resulting in clear and hostile discrimination practiced by the legislature, without any rational justification for the same. (See The Twyford Tea Co. Ltd. & Anr. v. The State of Kerala & Anr., (1970) 1 SCC 189 at paras 16 and 19; Ganga Sugar Corporation Ltd. v. State of Uttar Pradesh & Ors., (1980) 1 SCC 223 at 236 and P.M. Ashwathanarayana Setty & Ors. v. State of Karnataka & Ors., (1989) Supp. (1) SCC 696 at 724- 726).25. We must also not forget that no assessee can claim set off as a matter of right and the levy of Entry Tax cannot be assailed as unconstitutional only because set off is not given. (See Godrej & Boyce Mfg. Co. Pvt. Ltd. & Ors. v. Commissioner of Sales Tax & Ors., (1992) 3 SCC 624 at para 9 and State of Karnataka v. M.K. Agro Tech Pvt. Ltd, C.A. 15049-15069 of 2017 decided on 22nd September, 2017, at para 31).26. However, Shri Datar referred to observations contained in Ayurveda Pharmacy & Anr. v. State of Tamil Nadu, (1989) 2 SCC 285 , Aashirwad Films v. Union of India & Ors., (2007) 6 SCC 624 , State of Uttar Pradesh & Ors. v. Deepak Fertilizers and Petrochemical Corporation Ltd., (2007) 10 SCC 342 and Union of India & Ors. v. N.S.Rathnam and Sons, (2015) 10 SCC 681. Each of these judgments concerned taxation rates that were ex-facie arbitrary and/or discriminatory, in that the very same tax was levied at different rates without any rational justification for the same and were, thus, struck down as being arbitrary and/or discriminatory. None of these judgments would have any application to the facts of the present case, in which it is clear that the plea of discrimination is qua a set off of one tax against a separate and independent tax imposed. This fact circumstance would be sufficient to distinguish the said judgments from the facts of the present case.27. Since we have found that the plea of discrimination must fail on the aforesaid grounds, no question of reading down the provisions would then arise.28. However, when it comes to the levy of interest, the impugned judgment dated 19th April, 2017, held that there can be no levy of interest as there is no substantive statutory provision for the same. The assessee succeeded on this point and the State has not filed any appeal against the same. Therefore, the finding qua interest, having become final, cannot be interfered with by us.29. However, Shri S. Ganesh, learned Senior Advocate appearing for the Revenue, has argued before us that, as a matter of restitution, interest must be granted in favour of the Revenue for the period for which stay orders have been obtained in writ petitions filed in 2014 and 2015. This Court has held that, if a party ultimately succeeds, it must be put back in the same position as if no such stay orders have been passed, and for this purpose he referred to and relied upon State of Rajasthan & Anr. v. J.K. Synthetics Limited & Anr., (2011) 12 SCC 518 at paras 18 and 23 and Nava Bharat Ferro Alloys Limited v. Transmission Corporation of Andhra Pradesh Limited & Anr., 2011(3) R.C.R.(Civil) 599 : (2011) 1 SCC 216 at paras 16 to 27.30. It will be noticed, on a reading of para 23 of Bharat Ferro Alloys (supra), that ultimately restitution is not a matter of right, but is a matter of discretion, and that hardships on both sides must be looked at in order to find a pragmatic solution by way of restitution. Given the fact that the State continued with the grant of set off till the year 2014, and reopened assessments beginning from 2008-09 based on an audit objection, we are of the view that it would be highly inequitable at this juncture to allow the State to charge interest, which would arise as a result of stay orders being passed in the writ petitions. The principal amount also is not something that the Appellant was able to pass on to the ultimate consumer in the peculiar facts of this case. Had the Appellant known, from the assessment year 2008-09, and had the Department raised an objection in that very year, it would have arranged its affairs in such a manner as to avail of set off under the Entry Tax Act, which it did after 2014, when the audit objections were raised for the first time. On the facts of this case, therefore, we are not inclined to exercise our discretion to grant restitutional interest to the Revenue.31. The matter, however, does not end here. Shri Datar pointed out that after the audit objections; a show cause notice dated 16th April, 2014 was issued by the authority, which was replied to by letters dated 16th June, 2014 and 27th June, 2014, in which the assessee repeatedly asked for time to make a detailed objection on the merits of the case. Finally, by a letter dated 22nd August, 2014, the assessee was able to muster certain certificates for the assessment years in question given by BPCL and HPCL to show that a large amount of the sales made by them in turn to their retail consumers and though retail outlets were outside the local area of Patna, and, therefore, not exigible to Entry Tax at all.
### Response:
1
### Explanation:
must be liable to pay tax under the VAT Act. As has already been found, the Appellant as an importer of scheduled goods is not liable to pay tax as the levy of tax is itself postponed when the Appellant sells the oil to another OMC, and VAT is leviable only on the transaction between the said OMC and its retailer or other customers. In the ACC (supra) case, the levy on cement was always there, being a scheduled item, an exception to which by way of exemption was allowed only on additional production of cement. It is also important to note that the expression "by virtue of sale of imported scheduled goods or sale of goods manufactured by consuming such imported scheduled goods ......." was added later by way of amendment and was not contained in Section 3(2) second proviso which was construed in the ACC (supra) case. This condition has clearly not been met in the present case as has been held by us hereinabove. In any case, the effect of the aforesaid judgment has been nullified by the addition of a third proviso to Section 3(2) by the Bihar Finance Act, 2006, which specifically provides that exempted goods will not be entitled to set off. For all these reasons, we are of the view that this judgment does not take the Appellants case very muchcase again need not detain us any further because we are not concerned with dealers liable to pay tax, but with importers of scheduled goods who are liable to pay tax in order that Section 3(2) second proviso is attracted. We have already held that in the enacting part of Section 3(2), the Appellant is certainly a dealer liable to pay tax under the VAT Act, in that it is a registered dealer falling within Section 3(1) of the said Act. Therefore, any argument based on gross turnover is wholly unnecessary to include the Appellant under Section 3(2) of the Entry Taxthis it can scarcely be held that this being the object, the second proviso must be completely altered in order that it subserves such object. We have already held that a literal reading of the second proviso, which gives a concession by way of set off, cannot possibly be held to be altered qua every material condition, so that the Appellant be entitled to claim a set off. Consequently, this judgment and other judgments cited by the Appellant, such as Commissioner of Income Tax, Bangalore v. J.H. Gotla, Yadagiri, (1985) 4 SCC 343 , to buttress the plea of purposive interpretation cannot be held to apply in the facts and circumstances of thisare afraid that this plea also does not avail the Appellant for the simple reason that there are two taxes which are levied in the present case, one is VAT and the other is Entry Tax. In one case, VAT is set off against the Entry Tax and in another, VAT is not so set off. Any anomaly arising from the aforesaid position would not lead to a charge of clear and hostile discrimination.24. When it comes to taxing statutes, the law laid down by this Court is clear that Article 14 of the Constitution can be said to be breached only when there is perversity or gross disparity resulting in clear and hostile discrimination practiced by the legislature, without any rational justification for the same.We must also not forget that no assessee can claim set off as a matter of right and the levy of Entry Tax cannot be assailed as unconstitutional only because set off is notof these judgments concerned taxation rates that werearbitrary and/or discriminatory, in that the very same tax was levied at different rates without any rational justification for the same and were, thus, struck down as being arbitrary and/or discriminatory. None of these judgments would have any application to the facts of the present case, in which it is clear that the plea of discrimination is qua a set off of one tax against a separate and independent tax imposed. This fact circumstance would be sufficient to distinguish the said judgments from the facts of the present case.27. Since we have found that the plea of discrimination must fail on the aforesaid grounds, no question of reading down the provisions would then arise.28. However, when it comes to the levy of interest, the impugned judgment dated 19th April, 2017, held that there can be no levy of interest as there is no substantive statutory provision for the same. The assessee succeeded on this point and the State has not filed any appeal against the same. Therefore, the finding qua interest, having become final, cannot be interfered with by us.It will be noticed, on a reading of para 23 of Bharat Ferro Alloys (supra), that ultimately restitution is not a matter of right, but is a matter of discretion, and that hardships on both sides must be looked at in order to find a pragmatic solution by way of restitution. Given the fact that the State continued with the grant of set off till the year 2014, and reopened assessments beginning frombased on an audit objection, we are of the view that it would be highly inequitable at this juncture to allow the State to charge interest, which would arise as a result of stay orders being passed in the writ petitions. The principal amount also is not something that the Appellant was able to pass on to the ultimate consumer in the peculiar facts of this case. Had the Appellant known, from the assessment yearand had the Department raised an objection in that very year, it would have arranged its affairs in such a manner as to avail of set off under the Entry Tax Act, which it did after 2014, when the audit objections were raised for the first time. On the facts of this case, therefore, we are not inclined to exercise our discretion to grant restitutional interest to the Revenue.
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Kulsum R. Nadiadwala Vs. State Of Maharashtra | submits that after the Award was made, possession of the lands requires to be taken as provided under Section 16 of the Act. According to learned counsel, in the instant case, the respondents have not taken possession of the lands as envisaged under Section 16 of the Act. Their stand appears to be that since the lands were already in possession of the Defence establishment, possession as required under Section 16 of the Act need not be resorted to. Lastly, learned counsel would submit that after Section 6 notification was issued at the instance of the beneficiary of the notification, certain lands came to be deleted from Section 6 notification and the same could not have been done without resorting to provisions of Section 48 of the Act. For all these reasons, the learned counsel would contend that, the notification issued by the State Government qua the appellants requires to be quashed. 9. Per contra, learned counsel for the State submits that there was delay on the part of the legal representatives of the registered owner and they did not approached the Court within a reasonable time, and therefore, the Writ Petition ought to have been rejected by the High Court only on the ground of delay and laches on the part of the appellants in approaching the Court. Insofar, as the other legal contentions advanced by the learned counsel for the appellants before us, it appears that the learned counsel had no answers whatsoever. In fact, he did not also answered them. 10. Section 4 of the Land Acquisition Act reads as under : “Publication of preliminary notification and power of officers thereupon.-(1) Whenever it appears to the[ appropriate Government] the land in any locality[ is needed or] is likely to be needed for any public purpose[ or for a company], a notification to that effect shall be published in the Official Gazette[ and in two daily newspapers circulating in that locality of which at least one shall be in the regional language], and the Collector shall cause public notice of the substance of such notification 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 notification)].(2) Thereupon it shall be lawful for any officer, either generally or specially authorized by such Government in this behalf, and for his servants and workman,-to enter upon and survey and take levels of any land in such locality;to dig or bore into the sub- soil;to do all other acts necessary to ascertain whether the land is adapted for such purpose;to set out the boundaries of the land proposed to be taken and the intended line of the work (if any) proposed to be made thereon;to mark such levels, boundaries and line by placing marks and cutting trenches; and,where otherwise the survey cannot be completed and the levels taken and the boundaries and line marked, to cut down and clear away any part of any standing crop, fence or jungle;Provided that no person shall enter into any building or upon any enclosed court or garden attached to a dwelling house (unless with the consent of the occupier thereof) without previously giving such occupier at least seven days notice in writing of his intention to do so.” The said provisions came up for consideration before this Court in the case of Collector (District Magistrate) Allahabad & Anr. Vs. Raja Ram Jaiswal, (1985) 3 SCC 1. In the said decision, the Court specifically observed that there are two requirements for the issuance of Notification under Section 4 of the Act. The first requirement is that the notification requires to be published in an Official Gazette and the second requirement is that the acquiring authority should cast public notices of the substance of such notification in a convenient place in the locality in which the land proposed to be acquired is situate. The Court has further observed that both the contentions are cumulative and they are mandatory. 11. In the instant case, the respondents before the High Court had filed their reply affidavit. They did not dispute the contentions of the appellants that they had not issued any public notices as required under Section 4 of the Act. They only reiterated that such notification was published in the Official Gazette. 12. Since the mandatory requirement as required under Section 4(1) of the Act is not complied with by the respondents, while acquiring the lands in question, in our opinion, the entire acquisition proceedings requires to be declared as null and void. This Court in J&K Housing Board v. Kunwar Sanjay Krishan Kaul,(2011) 10 SCC 714 , has observed that all the formalities of serving notice to the interested person, stipulated under Section 4 of the Act, has to be mandatorily complied with in the manner provided therein, even though the interested persons have knowledge of the acquisition proceedings. This Court further observed thus: 32. It is settled law that when any statutory provision provides a particular manner for doing a particular act, the said thing or act must be done in accordance with the manner prescribed therefor in the Act. Merely because the parties concerned were aware of the acquisition proceedings or served with individual notices does not make the position alter when the statute makes it very clear that all the procedures/modes have to be strictly complied with in the manner provided therein. Merely because the landowners failed to submit their objections within 15 days after the publication of notification under Section 4(1) of the State Act, the authorities cannot be permitted to claim that it need not be strictly resorted to. 13. In view of the conclusion that we have reached on the first issue canvassed by learned counsel for the appellants, we do not think that the other issues that the learned counsel for the appellants has raised and canvassed before us need to be answered. | 1[ds]11. In the instant case, the respondents before the High Court had filed their reply affidavit. They did not dispute the contentions of the appellants that they had not issued any public notices as required under Section 4 of the Act. They only reiterated that such notification was published in the Official Gazette.In view of the conclusion that we have reached on the first issue canvassed by learned counsel for the appellants, we do not think that the other issues that the learned counsel for the appellants has raised and canvassed before us need to be answered. | 1 | 1,726 | 107 | ### 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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submits that after the Award was made, possession of the lands requires to be taken as provided under Section 16 of the Act. According to learned counsel, in the instant case, the respondents have not taken possession of the lands as envisaged under Section 16 of the Act. Their stand appears to be that since the lands were already in possession of the Defence establishment, possession as required under Section 16 of the Act need not be resorted to. Lastly, learned counsel would submit that after Section 6 notification was issued at the instance of the beneficiary of the notification, certain lands came to be deleted from Section 6 notification and the same could not have been done without resorting to provisions of Section 48 of the Act. For all these reasons, the learned counsel would contend that, the notification issued by the State Government qua the appellants requires to be quashed. 9. Per contra, learned counsel for the State submits that there was delay on the part of the legal representatives of the registered owner and they did not approached the Court within a reasonable time, and therefore, the Writ Petition ought to have been rejected by the High Court only on the ground of delay and laches on the part of the appellants in approaching the Court. Insofar, as the other legal contentions advanced by the learned counsel for the appellants before us, it appears that the learned counsel had no answers whatsoever. In fact, he did not also answered them. 10. Section 4 of the Land Acquisition Act reads as under : “Publication of preliminary notification and power of officers thereupon.-(1) Whenever it appears to the[ appropriate Government] the land in any locality[ is needed or] is likely to be needed for any public purpose[ or for a company], a notification to that effect shall be published in the Official Gazette[ and in two daily newspapers circulating in that locality of which at least one shall be in the regional language], and the Collector shall cause public notice of the substance of such notification 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 notification)].(2) Thereupon it shall be lawful for any officer, either generally or specially authorized by such Government in this behalf, and for his servants and workman,-to enter upon and survey and take levels of any land in such locality;to dig or bore into the sub- soil;to do all other acts necessary to ascertain whether the land is adapted for such purpose;to set out the boundaries of the land proposed to be taken and the intended line of the work (if any) proposed to be made thereon;to mark such levels, boundaries and line by placing marks and cutting trenches; and,where otherwise the survey cannot be completed and the levels taken and the boundaries and line marked, to cut down and clear away any part of any standing crop, fence or jungle;Provided that no person shall enter into any building or upon any enclosed court or garden attached to a dwelling house (unless with the consent of the occupier thereof) without previously giving such occupier at least seven days notice in writing of his intention to do so.” The said provisions came up for consideration before this Court in the case of Collector (District Magistrate) Allahabad & Anr. Vs. Raja Ram Jaiswal, (1985) 3 SCC 1. In the said decision, the Court specifically observed that there are two requirements for the issuance of Notification under Section 4 of the Act. The first requirement is that the notification requires to be published in an Official Gazette and the second requirement is that the acquiring authority should cast public notices of the substance of such notification in a convenient place in the locality in which the land proposed to be acquired is situate. The Court has further observed that both the contentions are cumulative and they are mandatory. 11. In the instant case, the respondents before the High Court had filed their reply affidavit. They did not dispute the contentions of the appellants that they had not issued any public notices as required under Section 4 of the Act. They only reiterated that such notification was published in the Official Gazette. 12. Since the mandatory requirement as required under Section 4(1) of the Act is not complied with by the respondents, while acquiring the lands in question, in our opinion, the entire acquisition proceedings requires to be declared as null and void. This Court in J&K Housing Board v. Kunwar Sanjay Krishan Kaul,(2011) 10 SCC 714 , has observed that all the formalities of serving notice to the interested person, stipulated under Section 4 of the Act, has to be mandatorily complied with in the manner provided therein, even though the interested persons have knowledge of the acquisition proceedings. This Court further observed thus: 32. It is settled law that when any statutory provision provides a particular manner for doing a particular act, the said thing or act must be done in accordance with the manner prescribed therefor in the Act. Merely because the parties concerned were aware of the acquisition proceedings or served with individual notices does not make the position alter when the statute makes it very clear that all the procedures/modes have to be strictly complied with in the manner provided therein. Merely because the landowners failed to submit their objections within 15 days after the publication of notification under Section 4(1) of the State Act, the authorities cannot be permitted to claim that it need not be strictly resorted to. 13. In view of the conclusion that we have reached on the first issue canvassed by learned counsel for the appellants, we do not think that the other issues that the learned counsel for the appellants has raised and canvassed before us need to be answered.
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11. In the instant case, the respondents before the High Court had filed their reply affidavit. They did not dispute the contentions of the appellants that they had not issued any public notices as required under Section 4 of the Act. They only reiterated that such notification was published in the Official Gazette.In view of the conclusion that we have reached on the first issue canvassed by learned counsel for the appellants, we do not think that the other issues that the learned counsel for the appellants has raised and canvassed before us need to be answered.
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RAJESHWAR MAHTO Vs. ALOK KUMAR GUPTA, G M , BIRLA CORPORATION LTD | Abhay Manohar Sapre, J. 1. We heard Mr. Rajeshwar Mahto-applicant/appellant appeared-in person and also heard Ms. N.Annapoorani, learned counsel appointed by Supreme Court Legal services Committee to assist the applicant in support of his applications. 2. These two aforementioned applications arise out of Civil Appeal No. 4482 of 1998 and M.A. No. 711/2017 decided by this Courts detailed order dated 23.02.2018. 3. By detailed order dated 23.02.2018, this Court disposed of Misc. Application No. 711/2017 and Contempt Petition No.785/2018 in C.A. No.4482 of 1998 and gave relief to the applicant which reads as under: 27. On applicants vacating the quarter within the time fixed by this Court, the Corporation will accordingly pay to the applicant Rs.7,50,000/- by demand draft within one week from the date of vacating the quarter. 28. With these directions, the contempt petition stands disposed of. Rule Nisi, if issued, stands discharged against the alleged contemnor. 4. Now it appears that the applicant is not satisfied with the grant of the aforesaid monetary relief to him and, therefore, he has again filed these applications. 5. In substance, the applicant wants more money than what was awarded to him by this Courts order dated 23.02.2018. From his oral submissions, what we could gather is that he now claims towards his salary etc. more than one crore or so whereas we have awarded to him Rs.7,50,000/- in full and final satisfaction of his total service claim. 6. He had also filed application for modification against the order dated 23.02.2018. 7. We have perused the applications carefully with a view to find out as to whether our order dated 23.02.2018 requires any further modification so as to grant to the applicant more than what we have granted already ( Rs.7,50,000/-) . 8. Having perused, we find ourselves unable to accept the applicants prayer made in these applications and also in his submissions. In our opinion, the prayer made by the applicant has no factual and legal basis. 9. The order dated 23.02.2018 is quite a reasoned order wherein this Court has taken into consideration the entire factual and legal aspects of the case, all previous orders passed in the main case out of which the contempt petition arose, the effect and consequences of the orders passed in the matters, applicants monthly emoluments, his length of service period, and all his other legal entitlements payable under various heads and then worked out the final figure of Rs.7,50,000/- for being paid to him by his employer. 10. There is no error much less apparent error in the order dated 23.02.2018 which may persuade us to further modify and award more money than what was awarded to the applicant. The applicant has to be now satisfied with the order dated 23.02.2018. | 0[ds]7. We have perused the applications carefully with a view to find out as to whether our order dated 23.02.2018 requires any further modification so as to grant to the applicant more than what we have granted already ( Rs.7,50,000/-) .8. Having perused, we find ourselves unable to accept the applicants prayer made in these applications and also in his submissions. In our opinion, the prayer made by the applicant has no factual and legal basis.9. The order dated 23.02.2018 is quite a reasoned order wherein this Court has taken into consideration the entire factual and legal aspects of the case, all previous orders passed in the main case out of which the contempt petition arose, the effect and consequences of the orders passed in the matters, applicants monthly emoluments, his length of service period, and all his other legal entitlements payable under various heads and then worked out the final figure of Rs.7,50,000/- for being paid to him by his employer.10. There is no error much less apparent error in the order dated 23.02.2018 which may persuade us to further modify and award more money than what was awarded to the applicant. The applicant has to be now satisfied with the order dated 23.02.2018. | 0 | 512 | 224 | ### 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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Abhay Manohar Sapre, J. 1. We heard Mr. Rajeshwar Mahto-applicant/appellant appeared-in person and also heard Ms. N.Annapoorani, learned counsel appointed by Supreme Court Legal services Committee to assist the applicant in support of his applications. 2. These two aforementioned applications arise out of Civil Appeal No. 4482 of 1998 and M.A. No. 711/2017 decided by this Courts detailed order dated 23.02.2018. 3. By detailed order dated 23.02.2018, this Court disposed of Misc. Application No. 711/2017 and Contempt Petition No.785/2018 in C.A. No.4482 of 1998 and gave relief to the applicant which reads as under: 27. On applicants vacating the quarter within the time fixed by this Court, the Corporation will accordingly pay to the applicant Rs.7,50,000/- by demand draft within one week from the date of vacating the quarter. 28. With these directions, the contempt petition stands disposed of. Rule Nisi, if issued, stands discharged against the alleged contemnor. 4. Now it appears that the applicant is not satisfied with the grant of the aforesaid monetary relief to him and, therefore, he has again filed these applications. 5. In substance, the applicant wants more money than what was awarded to him by this Courts order dated 23.02.2018. From his oral submissions, what we could gather is that he now claims towards his salary etc. more than one crore or so whereas we have awarded to him Rs.7,50,000/- in full and final satisfaction of his total service claim. 6. He had also filed application for modification against the order dated 23.02.2018. 7. We have perused the applications carefully with a view to find out as to whether our order dated 23.02.2018 requires any further modification so as to grant to the applicant more than what we have granted already ( Rs.7,50,000/-) . 8. Having perused, we find ourselves unable to accept the applicants prayer made in these applications and also in his submissions. In our opinion, the prayer made by the applicant has no factual and legal basis. 9. The order dated 23.02.2018 is quite a reasoned order wherein this Court has taken into consideration the entire factual and legal aspects of the case, all previous orders passed in the main case out of which the contempt petition arose, the effect and consequences of the orders passed in the matters, applicants monthly emoluments, his length of service period, and all his other legal entitlements payable under various heads and then worked out the final figure of Rs.7,50,000/- for being paid to him by his employer. 10. There is no error much less apparent error in the order dated 23.02.2018 which may persuade us to further modify and award more money than what was awarded to the applicant. The applicant has to be now satisfied with the order dated 23.02.2018.
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0
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7. We have perused the applications carefully with a view to find out as to whether our order dated 23.02.2018 requires any further modification so as to grant to the applicant more than what we have granted already ( Rs.7,50,000/-) .8. Having perused, we find ourselves unable to accept the applicants prayer made in these applications and also in his submissions. In our opinion, the prayer made by the applicant has no factual and legal basis.9. The order dated 23.02.2018 is quite a reasoned order wherein this Court has taken into consideration the entire factual and legal aspects of the case, all previous orders passed in the main case out of which the contempt petition arose, the effect and consequences of the orders passed in the matters, applicants monthly emoluments, his length of service period, and all his other legal entitlements payable under various heads and then worked out the final figure of Rs.7,50,000/- for being paid to him by his employer.10. There is no error much less apparent error in the order dated 23.02.2018 which may persuade us to further modify and award more money than what was awarded to the applicant. The applicant has to be now satisfied with the order dated 23.02.2018.
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Bombay Gas Co. Ltd Vs. Gopal Bhiva & Ors | when it directly arises. For the purpose of the present appeal, the only point which we have to consider is : does the fact that for recovery of wages limitation has been prescribed by the Payment of Wages Act, justify the introduction of considerations of limitation in regard to proceedings taken under S. 33C(2) of the Act.13. In dealing with this question, it is necessary to bear in mind that though the legislature knew how the problem of recovery of wages had been tackled by the Payment of Wages Act and how limitation had been prescribed in that behalf, it has omitted to make any provision for limitation in enacting S. 33C any provision for limitation in enacting S. 33C (2). The failure of the legislature to make any provision for limitation cannot, in our opinion, be deemed to be and accidental omission. In the circumstances, it would be legitimate to infer that legislature deliberately did not provide for any limitation under S. 33C(2). It may have been thought that the employees who are entitled to take the benefit of S. 33C(2) may not always be conscious of their rights and it would not be right to put the restriction of limitation in respect of claim which they may have to make under the said provision. Besides, even if the analogy of execution proceedings is treated as relevant, it is well known that a decree passed under the Code of Civil Procedure is capable of execution within 12 years, provided, of course it is kept alive by taking steps in aid of execution from time to time as required by Art. 182 of the Limitation Act; so that the test of one year or six months limitation prescribed by the Payment of Wages Act cannot be treated as a uniform and universal test in respect of all kinds of execution claims. It seems to us that where the legislature has made no provision for limitation, it would not be open to the courts to introduce any such limitation on grounds of fairness or justice. The words of S. 33C(2) are plain and unambiguous and it would be the duty of the Labour Court to give effect to the said provision without any consideration of limitation. Mr. Kolah no doubt emphasised the fact that such belated claims made on a large scale may cause considerable inconvenience to the employer, but that is a consideration which the legislature may take into account, and if the legislature feels that fair play and justice require that some limitation should be prescribed, it may proceed to do so. In the absence of any provision, however, the Labour Court cannot import any such consideration in dealing with the applications made under S. 33C(2).14. Mr. Kolah then attempted to suggest that Art. 181 in the First Schedule of the Limitation Act may apply to the present applications, and a period of 3 years limitation should, therefore, be held to govern them. Article 181 provides 3 years limitation for applications for which no period of limitation is provided else-where in schedule I, or by S. 48 of the Code of Civil Procedure, and the said period starts when the right to apply accrues. In our opinion this argument is one of desperation. It is well settled that Art. 181 applies only to applications which are made under the Code of Civil Procedure, and so, its extension to applications made under S. 33C(2) of the Act would not be justified. As early as 1993, the Bombay High Court had held in Bai Mankebai v. Manekji Kavasji, ILR 7 Bom 213 that Art. 181 only relates to applications under the Code of Civil Procedure in which case no period of limitation has been prescribed for the application, and the consensus of judicial opinion on this point had been noticed by the Privy Council in Hansraj Gupta v. Official Liquidators Dehra Dun, Mussoorie Electric Tramway Co. Ltd., 60 Ind App 13 at p. 20: (AIR 1933 PC 63 at p. 64). An attempt was no doubt made in the case of Sha Mulchand and Co. Ltd. v. Jawahar Mills Ltd., 1953 SCR 351 at p. 371 : (AIR 1953 SC 98 at p. 104) to suggest that the amendment of Arts. 158 and 178 ipso facto altered the meaning which had been attached to the words in Art. 181 by judicial decisions, but this attempt failed, because this Court held "that the long catena of decisions under Art. 181 may well be said to have, as it were, added the words "under the Code in the first column of that Article Therefore, it is not possible to accede to the argument that the limitation prescribed by Art. 181 can be invoked in dealing with applications under S. 33C(2)of the Act.15. It is true that in dealing with claims like bonus, industrial adjudication has generally discouraged laches and delay, but claims like bonus must be distinguished from claims made under S. 33C(2). A claim for bonus, for instance, is entertained on grounds of social justice and is not based on any statutory provision. In such a case, it would, no doubt, be open to industrial adjudication to have regard to all the relevant considerations before awarding the claim and in doing so, if it appears that a claim for bonus was made after long lapse of time, industrial adjudication may refuse to entertain the claim, or Government may refuse to make reference in that behalf. But these considerations would be irrelevant when claims are made under S. 33C(2) where these claims are, as in the present case, based on an award and are intended merely to execute the award. In such a case, limitation cannot be introduced by industrial adjudication on academic ground of social justice. It can be introduced, if at all, by the legislature. Therefore, we think that the Labour Court was right in rejecting the appellants contention that since the present claim was belated, it should not be awarded. | 0[ds]In our opinion, this contention is well-founded. The proceedings contemplated by S. 33C(2) are in many cases, analogous to execution proceedings and the Labour Court which is called upon to compute in terms of money the benefit claimed by an industrial employee is, in such cases, in the position of an executing court; like the executing court in execution proceedings governed by the Code of Civil Procedure, the Labour Court under S. 33C(2) would be competent to interpret the award on which the claim is based and it would also be open to it to consider the plea that the award sought to be enforced is a nullity. There is no doubt that if a decree put in execution is shown to be a nullity, the executing court can refuse to execute it. The same principle would apply to proceedings taken under S. 33C(2) and the jurisdiction of the Labour Court before which the said proceedings are commenced. Industrial Tribunals which deal with industrial disputes referred to them under S. 10(1) (d) of the Act are, in a sense, Tribunals with limited jurisdiction. They are entitled to deal with the disputes referred to them, but they cannot travel outside the terms of reference and deal with maters not included in the reference, subject of course, to incidental matters which fall within their jurisdiction. Therefore, on principle. Mr. Kolah is right when he contends that the Labour Court would have been justified in refusing to implement the award, if it was satisfied that the direction in the award on which the respondents claim is based is withoutthus dealt with the said four categories by name, the Tribunal thought it necessary, and we think, rightly, to add the words "and others," because if there were other workmen who were till 1948 required to work on Sundays and in respect of whom a weekly days off was introduced thereafter without any corresponding increase in their wages, there was no reason why they should not have been given the benefit which was given to the workmen of the four categories specifically discussed. It is significant that having thus comprehensively described the workmen who were entitled to the said benefit, the Tribunal has added that in respect of the remaining workmen, demand No. 11(a) was rejected. Therefore, we are satisfied that the relief granted by the Tribunal in paragraph 115 of its award has reference to demand No. 11(a) and the use of the words "and others" is not only not outside the terms of reference, but is quite appropriate and justified. That being so, it is difficult to sustain the plea that the impugned direction was withoutour opinion, this fact cannot materially assist Mr. Kolah, because on a fair and reasonable construction of the material direction in the award we are satisfied that the said clause applies to all workers of the appellant who satisfy the test prescribed by it. If the respondents did not understand the true scope and effect of the said clause that cannot affect the construction of the clause. Therefore, we do not think that the failure of the respondents to take advantage of the said clause soon after the earlier award was pronounced can have any bearing on the construction of the clause.our opinion, this argument proceeds on a misconstruction of the relevant clause in the award. The said clause does not provide that before getting the benefit in question, the workers must show that they actually worked on all Sundays in the year. The test which has to be satisfied by the workers is that they could have been required to work on Sunday in that year.Kolah has strenuously argued that the Labour Court should not have allowed the claim of the respondents for such a long period when they made the present applications nearly 8 years after the award was pronounced. It is true that the earlier award was pronounced on May 11, 1950 and the present applications were made in 1958. In support of his argument that the delay made by the respondents should be taken into account. Mr. Kolah was referred to the fact that under the Payment of Wages Act (No. 4 of 1936) a claim for wages has to be made within six months from the date on which the cause of action accrues to the employees. In the State of Maharashtra, by local modification, this period is prescribed as one year. The argument is that the present claim made by the respondents under S. 33C(2) is a claim for wages within the meaning of the Payment of Wages Act. If the respondents had made such a claim before the authority under the said Act, they could not have got relief for more than a year. It would be anomalous, says Mr. Kolah, that by merely changing the forum, the respondents should be permitted to make a claim for as many as 8 years under S. 33C(2). In this connection, Mr. Kolah also contends that by virtue of S. 22 of the Payment of Wages Act, a claim for wages cannot be made by an industrial employee in a civil court after a lapse of one year, because though the period for such a suit may be 3 years under Art. 102, a civil suit is barred by S. 22. The jurisdiction conferred on the payment authority is exclusive and so far as the said Act goes, all claims must be made within one year.Mr. Kolah then attempted to suggest that Art. 181 in the First Schedule of the Limitation Act may apply to the present applications, and a period of 3 years limitation should, therefore, be held to govern them. Article 181 provides 3 years limitation for applications for which no period of limitation is provided else-where in schedule I, or by S. 48 of the Code of Civil Procedure, and the said period starts when the right to apply accrues.In our opinion this argument is one of desperation. It is well settled that Art. 181 applies only to applications which are made under the Code of Civil Procedure, and so, its extension to applications made under S. 33C(2) of the Act would not be justified. As early as 1993, the Bombay High Court had held in Bai Mankebai v. Manekji Kavasji, ILR 7 Bom 213 that Art. 181 only relates to applications under the Code of Civil Procedure in which case no period of limitation has been prescribed for the application, and the consensus of judicial opinion on this point had been noticed by the Privy Council in Hansraj Gupta v. Official Liquidators Dehra Dun, Mussoorie Electric Tramway Co. Ltd., 60 Ind App 13 at p. 20: (AIR 1933 PC 63 at p. 64). An attempt was no doubt made in the case of Sha Mulchand and Co. Ltd. v. Jawahar Mills Ltd., 1953 SCR 351 at p. 371 : (AIR 1953 SC 98 at p. 104) to suggest that the amendment of Arts. 158 and 178 ipso facto altered the meaning which had been attached to the words in Art. 181 by judicial decisions, but this attempt failed, because this Court held "that the long catena of decisions under Art. 181 may well be said to have, as it were, added the words "under the Code in the first column of that Article Therefore, it is not possible to accede to the argument that the limitation prescribed by Art. 181 can be invoked in dealing with applications under S. 33C(2)of the Act.15. It is true that in dealing with claims like bonus, industrial adjudication has generally discouraged laches and delay, but claims like bonus must be distinguished from claims made under S. 33C(2). A claim for bonus, for instance, is entertained on grounds of social justice and is not based on any statutory provision. In such a case, it would, no doubt, be open to industrial adjudication to have regard to all the relevant considerations before awarding the claim and in doing so, if it appears that a claim for bonus was made after long lapse of time, industrial adjudication may refuse to entertain the claim, or Government may refuse to make reference in that behalf. But these considerations would be irrelevant when claims are made under S. 33C(2) where these claims are, as in the present case, based on an award and are intended merely to execute the award. In such a case, limitation cannot be introduced by industrial adjudication on academic ground of social justice. It can be introduced, if at all, by the legislature. Therefore, we think that the Labour Court was right in rejecting the appellants contention that since the present claim was belated, it should not be awarded. | 0 | 4,778 | 1,638 | ### Instruction:
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when it directly arises. For the purpose of the present appeal, the only point which we have to consider is : does the fact that for recovery of wages limitation has been prescribed by the Payment of Wages Act, justify the introduction of considerations of limitation in regard to proceedings taken under S. 33C(2) of the Act.13. In dealing with this question, it is necessary to bear in mind that though the legislature knew how the problem of recovery of wages had been tackled by the Payment of Wages Act and how limitation had been prescribed in that behalf, it has omitted to make any provision for limitation in enacting S. 33C any provision for limitation in enacting S. 33C (2). The failure of the legislature to make any provision for limitation cannot, in our opinion, be deemed to be and accidental omission. In the circumstances, it would be legitimate to infer that legislature deliberately did not provide for any limitation under S. 33C(2). It may have been thought that the employees who are entitled to take the benefit of S. 33C(2) may not always be conscious of their rights and it would not be right to put the restriction of limitation in respect of claim which they may have to make under the said provision. Besides, even if the analogy of execution proceedings is treated as relevant, it is well known that a decree passed under the Code of Civil Procedure is capable of execution within 12 years, provided, of course it is kept alive by taking steps in aid of execution from time to time as required by Art. 182 of the Limitation Act; so that the test of one year or six months limitation prescribed by the Payment of Wages Act cannot be treated as a uniform and universal test in respect of all kinds of execution claims. It seems to us that where the legislature has made no provision for limitation, it would not be open to the courts to introduce any such limitation on grounds of fairness or justice. The words of S. 33C(2) are plain and unambiguous and it would be the duty of the Labour Court to give effect to the said provision without any consideration of limitation. Mr. Kolah no doubt emphasised the fact that such belated claims made on a large scale may cause considerable inconvenience to the employer, but that is a consideration which the legislature may take into account, and if the legislature feels that fair play and justice require that some limitation should be prescribed, it may proceed to do so. In the absence of any provision, however, the Labour Court cannot import any such consideration in dealing with the applications made under S. 33C(2).14. Mr. Kolah then attempted to suggest that Art. 181 in the First Schedule of the Limitation Act may apply to the present applications, and a period of 3 years limitation should, therefore, be held to govern them. Article 181 provides 3 years limitation for applications for which no period of limitation is provided else-where in schedule I, or by S. 48 of the Code of Civil Procedure, and the said period starts when the right to apply accrues. In our opinion this argument is one of desperation. It is well settled that Art. 181 applies only to applications which are made under the Code of Civil Procedure, and so, its extension to applications made under S. 33C(2) of the Act would not be justified. As early as 1993, the Bombay High Court had held in Bai Mankebai v. Manekji Kavasji, ILR 7 Bom 213 that Art. 181 only relates to applications under the Code of Civil Procedure in which case no period of limitation has been prescribed for the application, and the consensus of judicial opinion on this point had been noticed by the Privy Council in Hansraj Gupta v. Official Liquidators Dehra Dun, Mussoorie Electric Tramway Co. Ltd., 60 Ind App 13 at p. 20: (AIR 1933 PC 63 at p. 64). An attempt was no doubt made in the case of Sha Mulchand and Co. Ltd. v. Jawahar Mills Ltd., 1953 SCR 351 at p. 371 : (AIR 1953 SC 98 at p. 104) to suggest that the amendment of Arts. 158 and 178 ipso facto altered the meaning which had been attached to the words in Art. 181 by judicial decisions, but this attempt failed, because this Court held "that the long catena of decisions under Art. 181 may well be said to have, as it were, added the words "under the Code in the first column of that Article Therefore, it is not possible to accede to the argument that the limitation prescribed by Art. 181 can be invoked in dealing with applications under S. 33C(2)of the Act.15. It is true that in dealing with claims like bonus, industrial adjudication has generally discouraged laches and delay, but claims like bonus must be distinguished from claims made under S. 33C(2). A claim for bonus, for instance, is entertained on grounds of social justice and is not based on any statutory provision. In such a case, it would, no doubt, be open to industrial adjudication to have regard to all the relevant considerations before awarding the claim and in doing so, if it appears that a claim for bonus was made after long lapse of time, industrial adjudication may refuse to entertain the claim, or Government may refuse to make reference in that behalf. But these considerations would be irrelevant when claims are made under S. 33C(2) where these claims are, as in the present case, based on an award and are intended merely to execute the award. In such a case, limitation cannot be introduced by industrial adjudication on academic ground of social justice. It can be introduced, if at all, by the legislature. Therefore, we think that the Labour Court was right in rejecting the appellants contention that since the present claim was belated, it should not be awarded.
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direction in the award we are satisfied that the said clause applies to all workers of the appellant who satisfy the test prescribed by it. If the respondents did not understand the true scope and effect of the said clause that cannot affect the construction of the clause. Therefore, we do not think that the failure of the respondents to take advantage of the said clause soon after the earlier award was pronounced can have any bearing on the construction of the clause.our opinion, this argument proceeds on a misconstruction of the relevant clause in the award. The said clause does not provide that before getting the benefit in question, the workers must show that they actually worked on all Sundays in the year. The test which has to be satisfied by the workers is that they could have been required to work on Sunday in that year.Kolah has strenuously argued that the Labour Court should not have allowed the claim of the respondents for such a long period when they made the present applications nearly 8 years after the award was pronounced. It is true that the earlier award was pronounced on May 11, 1950 and the present applications were made in 1958. In support of his argument that the delay made by the respondents should be taken into account. Mr. Kolah was referred to the fact that under the Payment of Wages Act (No. 4 of 1936) a claim for wages has to be made within six months from the date on which the cause of action accrues to the employees. In the State of Maharashtra, by local modification, this period is prescribed as one year. The argument is that the present claim made by the respondents under S. 33C(2) is a claim for wages within the meaning of the Payment of Wages Act. If the respondents had made such a claim before the authority under the said Act, they could not have got relief for more than a year. It would be anomalous, says Mr. Kolah, that by merely changing the forum, the respondents should be permitted to make a claim for as many as 8 years under S. 33C(2). In this connection, Mr. Kolah also contends that by virtue of S. 22 of the Payment of Wages Act, a claim for wages cannot be made by an industrial employee in a civil court after a lapse of one year, because though the period for such a suit may be 3 years under Art. 102, a civil suit is barred by S. 22. The jurisdiction conferred on the payment authority is exclusive and so far as the said Act goes, all claims must be made within one year.Mr. Kolah then attempted to suggest that Art. 181 in the First Schedule of the Limitation Act may apply to the present applications, and a period of 3 years limitation should, therefore, be held to govern them. Article 181 provides 3 years limitation for applications for which no period of limitation is provided else-where in schedule I, or by S. 48 of the Code of Civil Procedure, and the said period starts when the right to apply accrues.In our opinion this argument is one of desperation. It is well settled that Art. 181 applies only to applications which are made under the Code of Civil Procedure, and so, its extension to applications made under S. 33C(2) of the Act would not be justified. As early as 1993, the Bombay High Court had held in Bai Mankebai v. Manekji Kavasji, ILR 7 Bom 213 that Art. 181 only relates to applications under the Code of Civil Procedure in which case no period of limitation has been prescribed for the application, and the consensus of judicial opinion on this point had been noticed by the Privy Council in Hansraj Gupta v. Official Liquidators Dehra Dun, Mussoorie Electric Tramway Co. Ltd., 60 Ind App 13 at p. 20: (AIR 1933 PC 63 at p. 64). An attempt was no doubt made in the case of Sha Mulchand and Co. Ltd. v. Jawahar Mills Ltd., 1953 SCR 351 at p. 371 : (AIR 1953 SC 98 at p. 104) to suggest that the amendment of Arts. 158 and 178 ipso facto altered the meaning which had been attached to the words in Art. 181 by judicial decisions, but this attempt failed, because this Court held "that the long catena of decisions under Art. 181 may well be said to have, as it were, added the words "under the Code in the first column of that Article Therefore, it is not possible to accede to the argument that the limitation prescribed by Art. 181 can be invoked in dealing with applications under S. 33C(2)of the Act.15. It is true that in dealing with claims like bonus, industrial adjudication has generally discouraged laches and delay, but claims like bonus must be distinguished from claims made under S. 33C(2). A claim for bonus, for instance, is entertained on grounds of social justice and is not based on any statutory provision. In such a case, it would, no doubt, be open to industrial adjudication to have regard to all the relevant considerations before awarding the claim and in doing so, if it appears that a claim for bonus was made after long lapse of time, industrial adjudication may refuse to entertain the claim, or Government may refuse to make reference in that behalf. But these considerations would be irrelevant when claims are made under S. 33C(2) where these claims are, as in the present case, based on an award and are intended merely to execute the award. In such a case, limitation cannot be introduced by industrial adjudication on academic ground of social justice. It can be introduced, if at all, by the legislature. Therefore, we think that the Labour Court was right in rejecting the appellants contention that since the present claim was belated, it should not be awarded.
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Surajdeo Ojha and Others Vs. State of Bihar | FAZAL ALI, J. In this appeal by special leave, the appellants have been convicted under Sections 326/34 and 326/149 and have been sentenced to R.I. for seven years as modified by the High Court. They were also convicted under Section 148 and sentenced to three years R.I. We have gone through the judgment of the High Court and that of the Sessions Judge and we do not find any error of law in this case. 2. The central evidence in this case consists of a dying declaration made by the deceased before the Sub-Inspector which has been treated as F.I.R. The dying declaration was made within an hour of the assault when the deceased was fully conscious. Both the Courts below have relied upon the dying declaration and have held that the dying declaration is true. All the appellants are named in the dying declaration and even the witness 1 and 3 have been mentioned clearly as having seen the occurrence, in the said dying declaration. These witness have also been believed by the Courts below. 3. Mr. Mookherjee appearing in support of the appeal submitted that having regard to the large number of injuries sustained by the deceased, he would not be in a position to speak or give dying declaration. We have ourselves examined the injuries and we find that there was no injury which may have affected the brain or the heart and the only serious injuries are on the abdomen which will not make the deceased unconscious immediately. Moreover, the deceased has also given a short statement which is a proof of the manner in which the deceased was assaulted. The shortness of the statement itself, appears to be the guarantee of its truth. Even the Doctors who examined the deceased do not say, that having regard to the injuries, the deceased would have become unconscious immediately. In this view of the matter we are fully satisfied about the truth of the dying declaration. | 0[ds]We have ourselves examined the injuries and we find that there was no injury which may have affected the brain or the heart and the only serious injuries are on the abdomen which will not make the deceased unconscious immediately. Moreover, the deceased has also given a short statement which is a proof of the manner in which the deceased was assaulted. The shortness of the statement itself, appears to be the guarantee of its truth. Even the Doctors who examined the deceased do not say, that having regard to the injuries, the deceased would have become unconscious immediately. In this view of the matter we are fully satisfied about the truth of the dying declaration. | 0 | 352 | 129 | ### Instruction:
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FAZAL ALI, J. In this appeal by special leave, the appellants have been convicted under Sections 326/34 and 326/149 and have been sentenced to R.I. for seven years as modified by the High Court. They were also convicted under Section 148 and sentenced to three years R.I. We have gone through the judgment of the High Court and that of the Sessions Judge and we do not find any error of law in this case. 2. The central evidence in this case consists of a dying declaration made by the deceased before the Sub-Inspector which has been treated as F.I.R. The dying declaration was made within an hour of the assault when the deceased was fully conscious. Both the Courts below have relied upon the dying declaration and have held that the dying declaration is true. All the appellants are named in the dying declaration and even the witness 1 and 3 have been mentioned clearly as having seen the occurrence, in the said dying declaration. These witness have also been believed by the Courts below. 3. Mr. Mookherjee appearing in support of the appeal submitted that having regard to the large number of injuries sustained by the deceased, he would not be in a position to speak or give dying declaration. We have ourselves examined the injuries and we find that there was no injury which may have affected the brain or the heart and the only serious injuries are on the abdomen which will not make the deceased unconscious immediately. Moreover, the deceased has also given a short statement which is a proof of the manner in which the deceased was assaulted. The shortness of the statement itself, appears to be the guarantee of its truth. Even the Doctors who examined the deceased do not say, that having regard to the injuries, the deceased would have become unconscious immediately. In this view of the matter we are fully satisfied about the truth of the dying declaration.
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We have ourselves examined the injuries and we find that there was no injury which may have affected the brain or the heart and the only serious injuries are on the abdomen which will not make the deceased unconscious immediately. Moreover, the deceased has also given a short statement which is a proof of the manner in which the deceased was assaulted. The shortness of the statement itself, appears to be the guarantee of its truth. Even the Doctors who examined the deceased do not say, that having regard to the injuries, the deceased would have become unconscious immediately. In this view of the matter we are fully satisfied about the truth of the dying declaration.
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Hawabi Sayed Arif Sayed Hanif Vs. L. Hamingliana | activities." See also Sanjay Kumar Aggarwal v. Union of India, 1990(3) SCC 309 : AIR 1990 SC 1202 .27. In the case on hand the detaining authority was well aware of the fact that the detenu was in jail custody and he was also satisfied that the detenu was likely to continue indulgence in smuggling activities if he was not detained. If one goes through the entire grounds of detention, wherein the nature of antecedent activities of the detenu is mentioned will serve as a compelling reason for the detaining authority to arrive at a conclusion that the detenu is likely to indulge in prejudicial activities if he is released from custody. Now it has to be seen whether the other reason within the parameter of Chelawats case, (AIR 1990 SC 1196 ) namely, as to whether the detenu was likely to be released from custody in the near future appears on the face of the order. This order of detention was passed on 23rd October 1990 on the basis of the grounds of detention dated 23rd October 1990 wherein it is stated that the detenu after having become unsuccessful in his attempt to get bail on an earlier occasion i.e. on 5-10-90 had made another application for, interim bail on 15-10-1990 before the Additional CMM which came for hearing on 16-10-90 on which day the matter stood adjourned to 23-10-90 for arguments and orders. As we have already pointed out the order of detention was passed on 23-10-90. The detaining authority while giving his reason which we have extracted above has made an unpalatable statement stating "The persons who are charged with smuggling are generally granted bail." This sweeping statement amounting to an aspersion on the functioning of the judiciary is absolutely unjustifiable and unwarranted and as such it has to be strongly condemned. But the question whether there was any compelling reason to draw an inference that the detenu was likely to be released from the custody in the near future has to be examined.28. In Sanjay Kumar Aggarwals case (AIR 1990 SC 1202 ) to which one of us (S. Ratnavel Pandian, J.) was a party, it has held that it is not the law that no order of detention can validly be passed against a person in custody under any circumstance. In Kamarunnissa v. Union of India, 1990(4) JT (SC) 7 : AIR 1991 SC 1640 while the detaining authority has stated the offence with which the detenu therein had been charged was bailable, the Joint Secretary who filed the counter explained it saying that he passed the detention order on his past experience in such cases normally and almost as a matter of rule the court grants bail after the investigation is completed. While dealing with that explanation, Ahmadi, J. speaking for the Bench observed (Para 10 of AIR): " .............. having regard to the background in which this expression is used in paragraph 15 of the grounds of detention and bearing in mind the explanation and the fact that in such cases courts normally grant bail, it cannot be said that the use of the said expression discloses non-application of mind." 29. Coming to the facts of the case though we are of the view that the detaining authority has unwarrantedly made such sweeping remarks as mentioned above, yet in view of the facts and circumstances of this case inclusive of the fact that the detenu was relentlessly attempting to get bail by filing successive bail applications, it cannot be said that there was no material for the detaining authority to draw an inference that the detenu was likely to be released on bail. The affidavit filed by the then Secretary (Preventive Detention) to the Government of Maharashtra (first respondent) it is stated as follows: "I reiterate that though the detenu was in judicial custody, the gravity of the prejudicial activity in which the detenu was involved, the interim bail application filed by the detenu, the possibility of the said application being granted and the further possibility of the detenu being released on bail and indulging in similar prejudicial activities in future were the pressing and compelling reasons which prompted me to issue the impugned order of detention." 30. Therefore, we hold that all the conditions that are necessary to satisfy the compelling reasons for passing the order of detention are established. Hence this submission is also rejected.Ground No.731. This contention relates to the non-placing of the full text of the remand order of Sayed Arif Sayed Hanif before the detaining authority. A similar contention was raised before the High Court, but it was rejected. The remand application No. 981/ 90 dated 28.9-90 was made in respect of the crew members. A copy of this remand application is annexed to the grounds of detention. At the foot of the remand application there is an endorsement to the effect that all the accused produced before the court were remanded in judicial custody till 11-10-1990. Though the full text of the remand order was not placed before the detaining authority, the substance of the same was placed. We are in complete agreement with the High Court that the non-placing of the remand order before the detaining authority has in no way affected either the subjective satisfaction of the authority or the detenus right to make a detailed representation.32. Incidentally, Mr. R. K. Jain advanced an argument that this is a case of abetting the smuggling of goods but not smuggling goods and, therefore, the detention order should have been made under S. 3(l)(ii) of the Act but not under S. 3(l)(i). Admittedly, this ground has not been urged either before the High Court or in the grounds of appeal or in the writ petition. When it was pointed out to the learned counsel, he did not press this contention. However, after going through the entire documents, we see no force in this submission. The impugned order is passed under S. 3(l) of the Act in general. | 0[ds]Ground Nos. 1 to 46. It is not in controversy that the detaining authority (first respondent) after reaching his subjective satisfaction on the materials placed before him passed the order of detention onwhich order was served on the detenu onthat is within 3 days from the date of passing of the order while he was in judicial custody. That is to say that S. 3(3) of the Act which requires the order of detention to be communicated to the detenu ordinarily not later than 5 days and in exceptional circumstances and for reasons to be recorded in writing not later than 15 days from the date of detention, has been strictly complied with. In fact, the validity of the initial order of detention is not under serious challenge. As in S. 3(3) no statutory period is fixed for the communication of the declaration made under S. 9(1) to the detenu except that the period of 5 weeks as a maximum limit for making a declaration.7. Save as otherwise provided in S. 9 of Act the appropriate Government which has passed the order of detention under S. 3 of the Act should make a reference in respect of the detention order to the Advisory Board within 5 weeks from the date of detention of the detenu as contemplated under S. 8(b) of the Act. S. 8(c) requires the Advisory Board to which the reference has been made, after complying with the requirements of that provision should prepare its report specifying its opinion as to whether or not there is sufficient cause for the detention of the detenu concerned and submit the same within 11 weeks from the date of detention of the detenu concerned. But in a case where a declaration is made under S. 9(1) for the continued detention of the detenu, the period of 5 weeks specified in Cl. (b) of S. 8 is extended to 4 months and 2 weeks and the period of 11 weeks specified under Cl. (c) of S. 8 is extended to 5 months and 3 weeks.8. The detenu has got a constitutional right to challenge the order of detention by making a representation against the detention order as envisaged under Art. 22(5). It may be recalled that the detenu against whom the order of detention has been passed and thereafter a declaration under S. 9(1) has been made, has got a statutory right under S. 8(c) of the Act, to be heard in person if he so desires and the Advisory Board has to submit its report only after hearing him. Therefore, it follows that the detenu should be served with the initial order of detention within the specified period and the order of declaration within a reasonable time so that he could make his personal representation to the Advisory Board leaving apart his right of making representation to the detaining authority under Art. 22(5), challenging the order of detention.9. The submission made by Mr. R. K. Jain that the order of declaration should have been communicated to the detenu within a period of 5 weeks is inconceivable and that does not stand for reason; because S. 9(1) itself gives a maximum period of 5 weeks for making the declaration. Therefore, a copy of the declaration order could be served only after the declaration has been made. Suppose in a case where a declaration has been made on the last date of the 5 weeks period, it could be served on the detenu only on the expiry of 5 weeks. S. 9(1) speaks of only the maximum period of making the declaration but not the maximum period for communicating the same to the detenu. In fact, as we have already stated that there is no statutory period, specified under S. 9(1) for serving the declaration to the detenu. Hence, his submission that it was served only after the expiry of 5 weeks has to be rejected as devoid of any merit.10. According to the learned counsel, the delayed communication of the declaration onby a delay of 21 days from the date of making the declaration onand also by a delay of 8 days beyond the period of 5 weeks has caused much prejudice to the detenu in showing cause against the legality of the order before the Advisory Board. This submission, in our view, does not merit any consideration because the Advisory Board had its meeting only onthat is 11 days after the communication of the declaration and the detenu himself was personally heard.11. Whilst the first respondent has passed the detention order with a view to preventing the detenu from smuggling goods within the State of Maharashtra the declaration has been made on a different ground that the detenu is likely to smuggle goods into and through the Indian coastal waters, contiguous to the State of Karnataka. Therefore, there was no territorial nexus providing jurisdiction to the detaining authority to pass the impugned order and that the second respondent has passed the declaration with application of mind.12. It is seen from the affidavit filed by the respondent before the High Court as well as from paragraph 22 of the impugned judgment of the High Court that the declaration which was made by the Central Government was received by the sponsoring authority on90 the declaration was sent to the Central Prison at Aurangabad for service on the detenu as he was lodged therein. The declaration was received by the Superintendent of Central Prison onIn the meanwhile the detenu had been brought to the Bombay Central Prison. Therefore, on the very next day i.e. onthe declaration was sent by Registered post to the Central Prison at Bombay where it was received only onAs the detenu was undergoing treatment in JJ Hospital at that time the declaration was again sent to the Hospital Prison onand the same was served on him on that day. Thus the alleged delay of service of the declaration on the detenu is very satisfactorily explained. As pointed out supra the detenu had sufficient time of 11 days to make his representation in connection with his declaration also. Hence the detenu cannot make any legitimate grievance in this connection. The High Court before which a similar contention has been raised has rightly rejected and we are in total agreement with the conclusion of the High Court.13. Our view is fortified by a recent decision of this Court made in Smt. Azra Fatima v. Union of India, 1991(1) SCC 76 : AIR 1990 SC 1763 wherein the order of detention was passed under S. 3(3) of the Prevention of Illicit Traffic in Narcotic Drugs and Psychotropic Substances Act, 1988 and thereafter a declaration under S. 10(1) of the said 1988 Act which section is similar to S. 9(1) of the COFEPOSA Act. A contention was raised in that case that there was delayed communication of the declaration which had vitiated the order. This Court rejected that contention observing thus (Para 18 of AIR)principle of five days and fifteen days as provided in(3) of S. 3 relating communication of grounds of detention cannot be applied in respect of declaration issued under S. 10(1) of the Act ..........In view of the above finding there is no need to elaborately deal with the question as to whether constitutional safeguards under Art. 22(5) should be extended in the case of ,declaration also as in the case of detention order.15. Hence for the above mentioned reasons we find no merit in Ground Nos.and accordingly they are all found against the appellant.Ground No.516. The High Court while dealing with an identical contention raised before it on the usage of the expression "Coastal Waters" instead of "Customs Waters" has given sufficient and detailed reasons in paragraphsof its judgment. In paragraph 3 of the declaration the reason for making the declaration is given as followstherefore, I, the undersigned, hereby declare that I am satisfied that the aforesaid Shri Sayed Arif Sayed Hanif is likely to smuggle goods into and through the Indian coastal waters contiguous to the State of Karnataka which is highly vulnerable to smuggling as defined in Explanation 1 to S. 9(1) of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974.As pointed out by the High Court S. 2(d) defines "Indian Customs Waters" as having the same meaning as in Cl. 28 of S. 2 of the Customs Act, 1962 (as substituted for certain words by Act 25 of 1978) which defines Indian Customs waters as waters extending into sea up to the limit of contiguous zone of India under S. 5 of the Territorial Waters, Continental Shelf, Exclusive Economic Zone and other Maritime Zones Act, 1976 (in short Territorial Waters Act of 1976) and includes any bay, gulf, harbour, creek or tidal river. S. 3 of the Territorial Waters Act states that the sovereignty of India extends and has always extended to the territorial waters of India and to the seabed and the subsoil underlying etc. Under S. 3(2) the limit of territorial waters is the line, every point of which is at a distance of twelve nautical miles from one nearest point of the appropriate baseline. S. 5 defines the contiguous zone of India stating that it is an area beyond and adjacent to the territorial waters and the limit of the contiguous zone is as defined in S. 3(2) of this Territorial Waters Act of 1976. Indian Customs Waters, therefore, cover an area of 24 nautical miles from the coastal baseline in the States specified in Explanation 1 to S. 9(1) of the COFEPOSA Act. As rightly pointed out by the High Court, looking to this definition of Indian Customs Waters it covers not only, Indian coastal waters but also much more because the customs waters extends 24 nautical miles from the coastal baseline which follows that Indian coastal waters are within the Indian Customs Waters and, therefore, the expression "Indian Coastal Waters" used in the declaration refers to an area within the Indian Customs Waters which is highly vulnerable to smuggling.18. The averments made in the grounds of detention would also make it clear that the offence of smuggling of silver ingots was within the Indian Customs Waters. The relevant portion of averments readsurveillance around 23.00 hrs., onthe officers sighted an Arab Dhow about 3 to 5 nautical miles away from Karwar harbour. It was found moving slowly towards Karwar and on suspicion the officers on the coast guard ship signalled with loud speaker and search lights for the Arab Dhow to stop. The Arab Dhow, instead of stopping, started speeding away in the opposite direction from the coast. Seeing this, the officers on coast guard ship fired in the air and warned the crew on the Arab Dhow to bring it along side the ship. Thereafter the Arab Dhow stopped and came along side the coast guard ship and the officers from the coast guard ship boarded the Arab Dhow. It was found named A1 Akbari. On examination of the Arab Dhow the Officers found 150 packages containing contraband silver ingots on board.No doubt in the declaration the expression Indian Coastal Waters is used instead of Indian Customs Waters. In(vii) of para 7 of the counter the respondents have attempted to explain this expression by stating that the word Coastal in place of Customs is a typographical error which does not vitiate the order on any ground inclusive of one that there was no application of mind.20. After carefully analysing the submission with reference to the explanation given by the respondents, we are in full agreement with the High Court that this typographical mistake has in no way prejudiced the detenu in making his representation. It is not the case of the detenu that he was in any way deprived of making his effective representation before the Advisory Board nor he has made any complaint before the Advisory Board.21. In the present case, the apprehended activities of smuggling by the detenu have a territorial nexus with the State of Maharashtra. Indisputably the detenu is a resident of Bombay. The grounds of detention refer to a conspiracy hatched by the detenu in Bombay to smuggle silver ingots from Dubai to India. The detenu had engaged some of the crew members of the vessel which brought the contraband silver ingots into India, in Bombay. Theirwere also purchased by the detenu in Bombay. A perusal of the grounds of detention clearly show that almost all arrangements were made for the disposal of smuggled silver ingots in Bombay. According to the respondents, the silver ingots were seized in Bombay although the contraband were taken to Karwar (Karnataka State) for safe custody. Added to that, it is seen from the grounds of detention that of the two previous attempts to smuggle silver the first attempt was to smuggle the silver at a spot within 5 or 6 nautical miles off Murud which is within the jurisdiction of Maharashtra. In the above circumstances, the detaining authority legitimately drawing his subjective satisfaction that in future also the smuggling activities of the detenu may take place within the State of Maharashtra has passed the detention order in exercise of his powers under S. 3(1) of the Act. Thus, there is a clear nexus between the detenu and his activities of smuggling goods within the State of Maharashtra.22. So far as the Declaration under S. 9(1) is concerned, that section empowers the Central Government or any officer of the Central Government not below the rank of an Additional Secretary to that Government specially empowered by that Government to make a declaration exercising its powers throughout the territory of India. Under S. 9(l) the Central Government or an officer of the Central Government specially empowered may make the declaration if satisfied that any one of the conditions enumerated in (a) to (c) of S. 9(l) of the Act is attracted. The continued detention in pursuance of the declaration has to be read along with the original order of detention.23. Reverting to this case, the first respondent on being satisfied that the detenu is likely to smuggle goods into and through Indian Customs Waters (wrongly mentioned in the declaration as coastal waters) contiguous to the State of Karnataka which is highly vulnerable to smuggling which satisfies the requirements under S. 9(l)(a) has passed this order. Therefore, the grievance that the second respondent has passed the declaration without application of mind is rejected.Ground No.624. According to Mr. R. K. Jain, there was absolutely no compelling reasons justifying the detention when the detenu was in judicial custody and that the detaining authority has not shown sufficient reason that the detenu was likely to be released from custody in the near future.25. The reason given by the detaining authority in the grounds of detention reads asare likely to continue to indulge in smuggling activities in future unless you are detained.You are still in judicial custody as bail has not been granted to you in spite of your applications. However the persons who are charged with smuggling are generally granted bail.I am therefore satisfied that there is. a compelling necessity to issue your Detention Order under the COFEPOSA Act to prevent you from indulging in such prejudicial activities in future, though you are at present in judicial custody.As to what are the compelling reasons in the context of making the order of detention this Court in D.S. Chelawat v. Union of India, 1990(1) SCC 746 : AIR 1990 SC 1196 after making reference to a number of decisions of this Court on this point has made the following observation (para 19 ofdecisions referred to above lead to the conclusion that an order for detention can be validly passed against a person in custody and for that purpose it is necessary that the grounds of detention must show that (i) the detaining authority was aware of the fact that the detenu is already in detention; and (ii) there were compelling reasons justifying such detention despite the fact that the detenus is already in detention. The expression "compelling reasons" in the context of making an order for detention of a person already in custody implies that there must be cogent material before the detaining authority on the basis of which it may be satisfied that (a) the detenu is likely to be released from custody in the near future, and (b) taking into account the nature of the antecedent activities of the detenu, it is likely that after his release from custody he would indulge in prejudicial activities and it is necessary to detain him in order to prevent him from engaging in suchalso Sanjay Kumar Aggarwal v. Union of India, 1990(3) SCC 309 : AIR 1990 SC 1202 .27. In the case on hand the detaining authority was well aware of the fact that the detenu was in jail custody and he was also satisfied that the detenu was likely to continue indulgence in smuggling activities if he was not detained. If one goes through the entire grounds of detention, wherein the nature of antecedent activities of the detenu is mentioned will serve as a compelling reason for the detaining authority to arrive at a conclusion that the detenu is likely to indulge in prejudicial activities if he is released from custody. Now it has to be seen whether the other reason within the parameter of Chelawats case, (AIR 1990 SC 1196 ) namely, as to whether the detenu was likely to be released from custody in the near future appears on the face of the order. This order of detention was passed on 23rd October 1990 on the basis of the grounds of detention dated 23rd October 1990 wherein it is stated that the detenu after having become unsuccessful in his attempt to get bail on an earlier occasion i.e. onhad made another application for, interim bail onbefore the Additional CMM which came for hearing onon which day the matter stood adjourned tofor arguments and orders. As we have already pointed out the order of detention was passed onThe detaining authority while giving his reason which we have extracted above has made an unpalatable statement stating "The persons who are charged with smuggling are generally granted bail." This sweeping statement amounting to an aspersion on the functioning of the judiciary is absolutely unjustifiable and unwarranted and as such it has to be strongly condemned. But the question whether there was any compelling reason to draw an inference that the detenu was likely to be released from the custody in the near future has to be examined.28. In Sanjay Kumar Aggarwals case (AIR 1990 SC 1202 ) to which one of us (S. Ratnavel Pandian, J.) was a party, it has held that it is not the law that no order of detention can validly be passed against a person in custody under any circumstance. In Kamarunnissa v. Union of India, 1990(4) JT (SC) 7 : AIR 1991 SC 1640 while the detaining authority has stated the offence with which the detenu therein had been charged was bailable, the Joint Secretary who filed the counter explained it saying that he passed the detention order on his past experience in such cases normally and almost as a matter of rule the court grants bail after the investigation is completed. While dealing with that explanation, Ahmadi, J. speaking for the Bench observed (Para 10 of.............. having regard to the background in which this expression is used in paragraph 15 of the grounds of detention and bearing in mind the explanation and the fact that in such cases courts normally grant bail, it cannot be said that the use of the said expression discloses9. Coming to the facts of the case though we are of the view that the detaining authority has unwarrantedly made such sweeping remarks as mentioned above, yet in view of the facts and circumstances of this case inclusive of the fact that the detenu was relentlessly attempting to get bail by filing successive bail applications, it cannot be said that there was no material for the detaining authority to draw an inference that the detenu was likely to be released on bail. The affidavit filed by the then Secretary (Preventive Detention) to the Government of Maharashtra (first respondent) it is stated asreiterate that though the detenu was in judicial custody, the gravity of the prejudicial activity in which the detenu was involved, the interim bail application filed by the detenu, the possibility of the said application being granted and the further possibility of the detenu being released on bail and indulging in similar prejudicial activities in future were the pressing and compelling reasons which prompted me to issue the impugned order of detention.Therefore, we hold that all the conditions that are necessary to satisfy the compelling reasons for passing the order of detention are established. Hence this submission is also rejected.Ground No.731. This contention relates to theof the full text of the remand order of Sayed Arif Sayed Hanif before the detaining authority. A similar contention was raised before the High Court, but it was rejected. The remand application No. 981/ 90 datedwas made in respect of the crew members. A copy of this remand application is annexed to the grounds of detention. At the foot of the remand application there is an endorsement to the effect that all the accused produced before the court were remanded in judicial custody tillThough the full text of the remand order was not placed before the detaining authority, the substance of the same was placed. We are in complete agreement with the High Court that theof the remand order before the detaining authority has in no way affected either the subjective satisfaction of the authority or the detenus right to make a detailed representation.32. Incidentally, Mr. R. K. Jain advanced an argument that this is a case of abetting the smuggling of goods but not smuggling goods and, therefore, the detention order should have been made under S. 3(l)(ii) of the Act but not under S. 3(l)(i). Admittedly, this ground has not been urged either before the High Court or in the grounds of appeal or in the writ petition. When it was pointed out to the learned counsel, he did not press this contention. However, after going through the entire documents, we see no force in this submission. The impugned order is passed under S. 3(l) of the Act in general. | 0 | 5,679 | 4,113 | ### Instruction:
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activities." See also Sanjay Kumar Aggarwal v. Union of India, 1990(3) SCC 309 : AIR 1990 SC 1202 .27. In the case on hand the detaining authority was well aware of the fact that the detenu was in jail custody and he was also satisfied that the detenu was likely to continue indulgence in smuggling activities if he was not detained. If one goes through the entire grounds of detention, wherein the nature of antecedent activities of the detenu is mentioned will serve as a compelling reason for the detaining authority to arrive at a conclusion that the detenu is likely to indulge in prejudicial activities if he is released from custody. Now it has to be seen whether the other reason within the parameter of Chelawats case, (AIR 1990 SC 1196 ) namely, as to whether the detenu was likely to be released from custody in the near future appears on the face of the order. This order of detention was passed on 23rd October 1990 on the basis of the grounds of detention dated 23rd October 1990 wherein it is stated that the detenu after having become unsuccessful in his attempt to get bail on an earlier occasion i.e. on 5-10-90 had made another application for, interim bail on 15-10-1990 before the Additional CMM which came for hearing on 16-10-90 on which day the matter stood adjourned to 23-10-90 for arguments and orders. As we have already pointed out the order of detention was passed on 23-10-90. The detaining authority while giving his reason which we have extracted above has made an unpalatable statement stating "The persons who are charged with smuggling are generally granted bail." This sweeping statement amounting to an aspersion on the functioning of the judiciary is absolutely unjustifiable and unwarranted and as such it has to be strongly condemned. But the question whether there was any compelling reason to draw an inference that the detenu was likely to be released from the custody in the near future has to be examined.28. In Sanjay Kumar Aggarwals case (AIR 1990 SC 1202 ) to which one of us (S. Ratnavel Pandian, J.) was a party, it has held that it is not the law that no order of detention can validly be passed against a person in custody under any circumstance. In Kamarunnissa v. Union of India, 1990(4) JT (SC) 7 : AIR 1991 SC 1640 while the detaining authority has stated the offence with which the detenu therein had been charged was bailable, the Joint Secretary who filed the counter explained it saying that he passed the detention order on his past experience in such cases normally and almost as a matter of rule the court grants bail after the investigation is completed. While dealing with that explanation, Ahmadi, J. speaking for the Bench observed (Para 10 of AIR): " .............. having regard to the background in which this expression is used in paragraph 15 of the grounds of detention and bearing in mind the explanation and the fact that in such cases courts normally grant bail, it cannot be said that the use of the said expression discloses non-application of mind." 29. Coming to the facts of the case though we are of the view that the detaining authority has unwarrantedly made such sweeping remarks as mentioned above, yet in view of the facts and circumstances of this case inclusive of the fact that the detenu was relentlessly attempting to get bail by filing successive bail applications, it cannot be said that there was no material for the detaining authority to draw an inference that the detenu was likely to be released on bail. The affidavit filed by the then Secretary (Preventive Detention) to the Government of Maharashtra (first respondent) it is stated as follows: "I reiterate that though the detenu was in judicial custody, the gravity of the prejudicial activity in which the detenu was involved, the interim bail application filed by the detenu, the possibility of the said application being granted and the further possibility of the detenu being released on bail and indulging in similar prejudicial activities in future were the pressing and compelling reasons which prompted me to issue the impugned order of detention." 30. Therefore, we hold that all the conditions that are necessary to satisfy the compelling reasons for passing the order of detention are established. Hence this submission is also rejected.Ground No.731. This contention relates to the non-placing of the full text of the remand order of Sayed Arif Sayed Hanif before the detaining authority. A similar contention was raised before the High Court, but it was rejected. The remand application No. 981/ 90 dated 28.9-90 was made in respect of the crew members. A copy of this remand application is annexed to the grounds of detention. At the foot of the remand application there is an endorsement to the effect that all the accused produced before the court were remanded in judicial custody till 11-10-1990. Though the full text of the remand order was not placed before the detaining authority, the substance of the same was placed. We are in complete agreement with the High Court that the non-placing of the remand order before the detaining authority has in no way affected either the subjective satisfaction of the authority or the detenus right to make a detailed representation.32. Incidentally, Mr. R. K. Jain advanced an argument that this is a case of abetting the smuggling of goods but not smuggling goods and, therefore, the detention order should have been made under S. 3(l)(ii) of the Act but not under S. 3(l)(i). Admittedly, this ground has not been urged either before the High Court or in the grounds of appeal or in the writ petition. When it was pointed out to the learned counsel, he did not press this contention. However, after going through the entire documents, we see no force in this submission. The impugned order is passed under S. 3(l) of the Act in general.
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detenu, it is likely that after his release from custody he would indulge in prejudicial activities and it is necessary to detain him in order to prevent him from engaging in suchalso Sanjay Kumar Aggarwal v. Union of India, 1990(3) SCC 309 : AIR 1990 SC 1202 .27. In the case on hand the detaining authority was well aware of the fact that the detenu was in jail custody and he was also satisfied that the detenu was likely to continue indulgence in smuggling activities if he was not detained. If one goes through the entire grounds of detention, wherein the nature of antecedent activities of the detenu is mentioned will serve as a compelling reason for the detaining authority to arrive at a conclusion that the detenu is likely to indulge in prejudicial activities if he is released from custody. Now it has to be seen whether the other reason within the parameter of Chelawats case, (AIR 1990 SC 1196 ) namely, as to whether the detenu was likely to be released from custody in the near future appears on the face of the order. This order of detention was passed on 23rd October 1990 on the basis of the grounds of detention dated 23rd October 1990 wherein it is stated that the detenu after having become unsuccessful in his attempt to get bail on an earlier occasion i.e. onhad made another application for, interim bail onbefore the Additional CMM which came for hearing onon which day the matter stood adjourned tofor arguments and orders. As we have already pointed out the order of detention was passed onThe detaining authority while giving his reason which we have extracted above has made an unpalatable statement stating "The persons who are charged with smuggling are generally granted bail." This sweeping statement amounting to an aspersion on the functioning of the judiciary is absolutely unjustifiable and unwarranted and as such it has to be strongly condemned. But the question whether there was any compelling reason to draw an inference that the detenu was likely to be released from the custody in the near future has to be examined.28. In Sanjay Kumar Aggarwals case (AIR 1990 SC 1202 ) to which one of us (S. Ratnavel Pandian, J.) was a party, it has held that it is not the law that no order of detention can validly be passed against a person in custody under any circumstance. In Kamarunnissa v. Union of India, 1990(4) JT (SC) 7 : AIR 1991 SC 1640 while the detaining authority has stated the offence with which the detenu therein had been charged was bailable, the Joint Secretary who filed the counter explained it saying that he passed the detention order on his past experience in such cases normally and almost as a matter of rule the court grants bail after the investigation is completed. While dealing with that explanation, Ahmadi, J. speaking for the Bench observed (Para 10 of.............. having regard to the background in which this expression is used in paragraph 15 of the grounds of detention and bearing in mind the explanation and the fact that in such cases courts normally grant bail, it cannot be said that the use of the said expression discloses9. Coming to the facts of the case though we are of the view that the detaining authority has unwarrantedly made such sweeping remarks as mentioned above, yet in view of the facts and circumstances of this case inclusive of the fact that the detenu was relentlessly attempting to get bail by filing successive bail applications, it cannot be said that there was no material for the detaining authority to draw an inference that the detenu was likely to be released on bail. The affidavit filed by the then Secretary (Preventive Detention) to the Government of Maharashtra (first respondent) it is stated asreiterate that though the detenu was in judicial custody, the gravity of the prejudicial activity in which the detenu was involved, the interim bail application filed by the detenu, the possibility of the said application being granted and the further possibility of the detenu being released on bail and indulging in similar prejudicial activities in future were the pressing and compelling reasons which prompted me to issue the impugned order of detention.Therefore, we hold that all the conditions that are necessary to satisfy the compelling reasons for passing the order of detention are established. Hence this submission is also rejected.Ground No.731. This contention relates to theof the full text of the remand order of Sayed Arif Sayed Hanif before the detaining authority. A similar contention was raised before the High Court, but it was rejected. The remand application No. 981/ 90 datedwas made in respect of the crew members. A copy of this remand application is annexed to the grounds of detention. At the foot of the remand application there is an endorsement to the effect that all the accused produced before the court were remanded in judicial custody tillThough the full text of the remand order was not placed before the detaining authority, the substance of the same was placed. We are in complete agreement with the High Court that theof the remand order before the detaining authority has in no way affected either the subjective satisfaction of the authority or the detenus right to make a detailed representation.32. Incidentally, Mr. R. K. Jain advanced an argument that this is a case of abetting the smuggling of goods but not smuggling goods and, therefore, the detention order should have been made under S. 3(l)(ii) of the Act but not under S. 3(l)(i). Admittedly, this ground has not been urged either before the High Court or in the grounds of appeal or in the writ petition. When it was pointed out to the learned counsel, he did not press this contention. However, after going through the entire documents, we see no force in this submission. The impugned order is passed under S. 3(l) of the Act in general.
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Vanga Sriniwas Vs. Public Prosecutor, High Court Of A.P | nature. Injury No.1 is caused by nails and injury Nos. 2 and 3 with a blunt object.Internal Injuries:1. Fracture of hyoid bone right corn.2. Fracture of 3,4,5,6,7th ribs on r/s and 4,5,6,7th ribs on the I/s near steno castle junction. Lungs were congested, heart congested and peritoiral cavity contains about 200 cc of clotted blood. Intestine and omintum stained with blood.Small intestine contused in different places. Liver, Spleen, Kidney are congested. Uterus stained with blood. Viscera was sent for chemical analysis. The result of analysis is there was no poisonous substance. The FBL report is Ex.P-10. Ex.P11 is preliminary Post-Mortem Examination report issued by myself and Doctor Smt. Ramadevi.Final opinion as to cause of death is Asphysixi due to throttling. The final report issued by both of us is Ex.P-12. The approximate time of death is 24 - 36 hours prior to PME." Though in his preliminary report Ex. P-11, the doctor has not offered his opinion as to the cause of death but in the final opinion, he has specifically stated that the cause of death is "Asphysixi due to throttling". The analysis of post-mortem report coupled with the evidence of doctor clearly show (a) presence of nail marks (b) contusion over the neck (c) ligature marks around the neck (d) fracture of hyoid bone corn and (e) fracture of 9 ribs right and left sides. Though there was a suspicion that the deceased might have been poisoned on account of the presence of some powder in the glass and a tablet that were present at the scene of occurrence, in view of FSL report i.e. Ex. P-10, there is no proof to the effect that the death was due to poison. On the other hand, the evidence of panchas PWs 8 and 9 coupled with the medical evidence PW 10 as well as the final report (Ex.P-12) clearly show that the deceased died on account of strangulation. 14. The scene of observation report (Ex .P-9) prepared by the investigating officer show that the house of the accused is located in the middle of other houses. In view of the medical evidence and in conjunction with the other circumstances, particularly the undisputed fact that at or about the time of Vanga Vimalas death, no third person excepting the accused and the deceased, was present in the house, it will inescapably lead to the conclusion that within all human probability, it was the accused-appellant and none else, who had murdered the deceased by strangulating her to death. We have already noted that the accused alone was inside the house along with his wife, namely, the deceased. As rightly pointed out by the prosecution, it is not the case of the accused that any other person was residing with them in the same house particularly on the fateful day. Further, as rightly pointed out, there was no explanation from the accused as to when he left the house and came to know about the hanging of the dead body and it would be right in arriving at a conclusion that he alone was responsible for the commission of the offence. If we consider all the above mentioned material circumstances coupled with the medical evidence, it is safe to conclude that the death of the deceased was on account of strangulation. As rightly pointed out, there was no possibility of any other person committing the offence and the accused alone was responsible for the commission of the offence. In such circumstances, we agree with the contention of the State counsel that the prosecution placed sufficient evidence to establish the guilt of the accused beyond reasonable doubt. As observed by the High Court, the trial Court acquitted the accused only on the simple ground that the doctor, who conducted post-mortem examination, did not offer cause of death in his preliminary report, forgetting that in the final report particularly after receipt of FSL report, the very same doctor has opined that the death was due to "Asphysixi due to throttling". In the light of the materials available, the conclusion of the trial Judge cannot be accepted and the High Court taking into consideration the totality of the circumstances and the entire materials was right in accepting the case of the prosecution and found the accused guilty. 15. Mr. I.Venkatnarayana, learned senior counsel, submitted that even if this Court accepts the prosecution case in view of alteration of the charge, namely, from Sections 302 to 304B and 201 IPC, the conviction and sentence for an offence under Section 302 IPC by the High Court cannot be sustained. In the earlier part of the judgment, we have referred to Annexures A1 and A2 which clearly show that based on the materials collected the investigating agency altered the offence from Sections 302 IPC to 304B and 201 IPC. The altered charge has not been taken note of by the High Court while arriving at a conclusion against the accused. In the earlier part of our judgment, we have referred to the relevant materials with regard to demand of dowry, suspicion, harassment and torture by the accused and the medical evidence as to the cause of death. In view of the same and in the light of the altered charge memo as one of Section 304B instead of 302 IPC, it is but proper to convict the accused only under Section 304B IPC and not under Section 302 IPC as ordered by the High Court. As per sub-section (2) of Section 304B IPC, the minimum sentence prescribed is 7 years and may extend to imprisonment for life. 16. Considering the fact that the alleged occurrence took place on 24.01.1997 and the appellant/accused undergone the agony for more than ten years, we are of the view that a sentence of seven years would meet the ends of justice. Accordingly, we modify the conviction and sentence imposed by the High Court; instead the appellant/accused is convicted under Section 304 B IPC and impose a sentence of seven years rigorous imprisonment.17. | 1[ds]Considering the fact that the alleged occurrence took place on 24.01.1997 and the appellant/accused undergone the agony for more than ten years, we are of the view that a sentence of seven years would meet the ends of justice. Accordingly, we modify the conviction and sentence imposed by the High Court; instead the appellant/accused is convicted under Section 304 B IPC and impose a sentence of seven years rigorous imprisonment. | 1 | 3,249 | 79 | ### Instruction:
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nature. Injury No.1 is caused by nails and injury Nos. 2 and 3 with a blunt object.Internal Injuries:1. Fracture of hyoid bone right corn.2. Fracture of 3,4,5,6,7th ribs on r/s and 4,5,6,7th ribs on the I/s near steno castle junction. Lungs were congested, heart congested and peritoiral cavity contains about 200 cc of clotted blood. Intestine and omintum stained with blood.Small intestine contused in different places. Liver, Spleen, Kidney are congested. Uterus stained with blood. Viscera was sent for chemical analysis. The result of analysis is there was no poisonous substance. The FBL report is Ex.P-10. Ex.P11 is preliminary Post-Mortem Examination report issued by myself and Doctor Smt. Ramadevi.Final opinion as to cause of death is Asphysixi due to throttling. The final report issued by both of us is Ex.P-12. The approximate time of death is 24 - 36 hours prior to PME." Though in his preliminary report Ex. P-11, the doctor has not offered his opinion as to the cause of death but in the final opinion, he has specifically stated that the cause of death is "Asphysixi due to throttling". The analysis of post-mortem report coupled with the evidence of doctor clearly show (a) presence of nail marks (b) contusion over the neck (c) ligature marks around the neck (d) fracture of hyoid bone corn and (e) fracture of 9 ribs right and left sides. Though there was a suspicion that the deceased might have been poisoned on account of the presence of some powder in the glass and a tablet that were present at the scene of occurrence, in view of FSL report i.e. Ex. P-10, there is no proof to the effect that the death was due to poison. On the other hand, the evidence of panchas PWs 8 and 9 coupled with the medical evidence PW 10 as well as the final report (Ex.P-12) clearly show that the deceased died on account of strangulation. 14. The scene of observation report (Ex .P-9) prepared by the investigating officer show that the house of the accused is located in the middle of other houses. In view of the medical evidence and in conjunction with the other circumstances, particularly the undisputed fact that at or about the time of Vanga Vimalas death, no third person excepting the accused and the deceased, was present in the house, it will inescapably lead to the conclusion that within all human probability, it was the accused-appellant and none else, who had murdered the deceased by strangulating her to death. We have already noted that the accused alone was inside the house along with his wife, namely, the deceased. As rightly pointed out by the prosecution, it is not the case of the accused that any other person was residing with them in the same house particularly on the fateful day. Further, as rightly pointed out, there was no explanation from the accused as to when he left the house and came to know about the hanging of the dead body and it would be right in arriving at a conclusion that he alone was responsible for the commission of the offence. If we consider all the above mentioned material circumstances coupled with the medical evidence, it is safe to conclude that the death of the deceased was on account of strangulation. As rightly pointed out, there was no possibility of any other person committing the offence and the accused alone was responsible for the commission of the offence. In such circumstances, we agree with the contention of the State counsel that the prosecution placed sufficient evidence to establish the guilt of the accused beyond reasonable doubt. As observed by the High Court, the trial Court acquitted the accused only on the simple ground that the doctor, who conducted post-mortem examination, did not offer cause of death in his preliminary report, forgetting that in the final report particularly after receipt of FSL report, the very same doctor has opined that the death was due to "Asphysixi due to throttling". In the light of the materials available, the conclusion of the trial Judge cannot be accepted and the High Court taking into consideration the totality of the circumstances and the entire materials was right in accepting the case of the prosecution and found the accused guilty. 15. Mr. I.Venkatnarayana, learned senior counsel, submitted that even if this Court accepts the prosecution case in view of alteration of the charge, namely, from Sections 302 to 304B and 201 IPC, the conviction and sentence for an offence under Section 302 IPC by the High Court cannot be sustained. In the earlier part of the judgment, we have referred to Annexures A1 and A2 which clearly show that based on the materials collected the investigating agency altered the offence from Sections 302 IPC to 304B and 201 IPC. The altered charge has not been taken note of by the High Court while arriving at a conclusion against the accused. In the earlier part of our judgment, we have referred to the relevant materials with regard to demand of dowry, suspicion, harassment and torture by the accused and the medical evidence as to the cause of death. In view of the same and in the light of the altered charge memo as one of Section 304B instead of 302 IPC, it is but proper to convict the accused only under Section 304B IPC and not under Section 302 IPC as ordered by the High Court. As per sub-section (2) of Section 304B IPC, the minimum sentence prescribed is 7 years and may extend to imprisonment for life. 16. Considering the fact that the alleged occurrence took place on 24.01.1997 and the appellant/accused undergone the agony for more than ten years, we are of the view that a sentence of seven years would meet the ends of justice. Accordingly, we modify the conviction and sentence imposed by the High Court; instead the appellant/accused is convicted under Section 304 B IPC and impose a sentence of seven years rigorous imprisonment.17.
### Response:
1
### Explanation:
Considering the fact that the alleged occurrence took place on 24.01.1997 and the appellant/accused undergone the agony for more than ten years, we are of the view that a sentence of seven years would meet the ends of justice. Accordingly, we modify the conviction and sentence imposed by the High Court; instead the appellant/accused is convicted under Section 304 B IPC and impose a sentence of seven years rigorous imprisonment.
|
K. L. Varadarajan Vs. The Commissioner Of Income-Tax, Madras | think it should be taken in the context of Section 13 (1) of the Finance Act, 1950, it would include re-assessment made under the provisions of the Act. Such `re-assessment will without doubt come within the expression `levy, assessment and collection of income-tax. In this speech in Commr. for General Purposes of Income-tax for the City of London v. Gibbs, 1942 AC 402at p. 406 Lord Simon has pointed out that the word `assessment is used in the English Income-tax Code in more than one sense; and sometimes within the bounds of the same section, two separate meanings of the word may be found. One meaning is the fixing of the sum taken to represent the actual profit and the other the actual sum in tax which the taxpayer is liable to pay.It has been contended before us that the Finance Act and the Income-tax Act should be read together as forming one code, and so read the words assessment and `re-assessment acquire definite and distinct connotations. We are unable to agree, for the reasons which we have already given, that even if we read the Finance Act along with the Income-tax Act the word assessment can be given a restricted meaning. To repeat those reasons: the Income-tax Code itself uses the word assessment in different senses, and in the context and collocation of the words of the Finance Act, the word `assessment is capable of bearing a comprehensive meaning only."In the context of Section 17 (1) of the Act the word "assessment" must necessarily include the reassessment under Section 34 of the Act. To hold otherwise would result in an anemalous situation. This can best be illustrated by taking a concrete case. An assessee files a declaration under Section 17 (1) of the Act in respect of the assessment year 1955-56. Supposing his assessment for the year 1956-57 is reopened and an order for reassessment is made. In case the declaration made under Section 17 (1) can be availed of only for the original assessments and not for reassessments under Section 34 of the Act, the result would necessarily be that the declaration would have to be excluded from consideration in making the reassessment for the year 1956-57 even though the declaration had been filed much earlier. This could hardly have been the intention of the legislature. The entire scheme of Section 17 (1) as well as the context in our opinion clearly shows that the word "assessment" in Section 17 (1) has been used in a comprehensive sense so as to include reassessment.8. It may also be observed that there are indications in the Act that whenever the legislature intended that the word "assessment" should not include reassessment, it used express words for the purpose. Section 33-B of the Act empowers the Commissioner of Income-tax if he considers any order passed by the income-tax officer to be erroneous and prejudicial in the interest of revenue to make inter alia in order after complying with the requirements of that section, cancelling the assessment and directing a fresh assessment. Sub-section (2) of that section makes it clear that no order can be made under that section to revise an order of reassessment made under the provisions of Section 34. If the order of assessment did not include an order of reassessment made under the provisions of Section 34, there would have been hardly any necessity of making a provision in sub-section (2) of Section 33-B that no order can be made under sub-section (1) of that section to revise an order of reassessment made under the provisions of Section 34.9. According to Section 67 of the Act, no suit shall be brought in any Civil Court to set aside or modify any assessment made under the Act. It is obvious that the protection afforded by that section would be available not only for the original assessments but also for reassessments made under Section 34 of the Act even though the word used in the section is assessment and not reassessment. Likewise, the fact that the legislature has used the word "assessments" and not "re-assessments" in the second proviso to Section 17 (1) of the Act would not exclude the applicability of that proviso to cases of reassessments subsequent to the filing of the declaration.10. The matter may also be looked at from another angle. Proceedings under Section 34 of the Act can be initiated if the Income-tax officer has reason to believe that income, profits or gains chargeable to income-tax have escaped assessment for any year or have been under-assessed or assessed at too low a rate or have been made the subject of excessive relief under; the Act or excessive loss or depreciation allowance has been computed. The first of the above five contingencies deals with income, profits and gains chargeable to income-tax escaping assessment. In such an event the income-tax officer would after initiating proceedings under Section 34 make assessment of such income, profit or gain. In the order four contingencies, the order made by the income-tax officer would be for re-assessing such income, profit or gain or re-computing the loss or depreciation allowance. If the view propounded on behalf of the revenue were to be accepted that assessment does not include reassessment made under Section 34 of the Act, the result would be that the benefit of the declaration made under Section 17 (1) of the Act, in case other conditions are fulfilled, would be available only in the first contingency mentioned above relating to escapted assessment and not in the remaining contingencies because they pertain to reassessment. This would certainly be anomalous for it would result in placing persons whose income has escapted assessment in a better position compared to persons whose income has been under-assessed or assessed at too law a rate or has been the subject of excessive relief under the Act or in; whose cases excessive loss or depreciation allowance has been computed. This could hardly have been the intention of the legislature. | 1[ds]6. After hearing the learned counsel for the parties, we are of the opinion that the submission made by Mr. Desai is well founded. The assessee, as mentioned earlier, filed the declaration in the course of assessment proceedings relating to the year 1958-59 on March 24, 1959. Although the above declaration was rejected by the income-tax officer, the Appellate Assistant Commissioner on appeal in respect of assessment for the assessment year 1958-59 held that there was sufficient cause for the assessee in not making the declaration on the first occasion on which he became assessable and that his failure to make much declaration had not resulted in reducing his liability to tax for any year. The assessee was accordingly allowed to make the declaration after the expiry of the prescribed period. According to the second proviso to Section 17 (1) of the Act, once the assessee is allowed to make the declaration after the expiry of the period specified "such declaration shall have effect in relation to the assessment for the year in which the declaration is made (if such assessment had not been completed before such declaration) and all assessments thereafter". The words of the second proviso to Section 17 (1) reproduced above make it clear that the declaration would be operative not only for the assessment for the year in which the declaration is made if such assessment had not been completed before such declaration, but also for all assessments to be made thereafter. The words "all assessments thereafter", in our opinion, signify not only assessments for the subsequent years but would also cover assessments for the earlier years in case the assessments for those earlier years are being made subsequent to the filing of the declaration. The words "all assessments thereafter" have a wide amplitude and we see no cogent reason for not giving them their natural meaning or for restricting their scope. Those words would include within their ambit all assessments made subsequent to the filing of the declaration and it would be wrong to so construe them as if the legislature had used the words "all assessments for the subsequentthe context of Section 17 (1) of the Act the word "assessment" must necessarily include the reassessment under Section 34 of the Act. To hold otherwise would result in an anemalous situation. This can best be illustrated by taking a concrete case. An assessee files a declaration under Section 17 (1) of the Act in respect of the assessment year 1955-56. Supposing his assessment for the year 1956-57 is reopened and an order for reassessment is made. In case the declaration made under Section 17 (1) can be availed of only for the original assessments and not for reassessments under Section 34 of the Act, the result would necessarily be that the declaration would have to be excluded from consideration in making the reassessment for the year 1956-57 even though the declaration had been filed much earlier. This could hardly have been the intention of the legislature. The entire scheme of Section 17 (1) as well as the context in our opinion clearly shows that the word "assessment" in Section 17 (1) has been used in a comprehensive sense so as to include reassessment.8. It may also be observed that there are indications in the Act that whenever the legislature intended that the word "assessment" should not include reassessment, it used express words for the purpose. Section 33-B of the Act empowers the Commissioner of Income-tax if he considers any order passed by the income-tax officer to be erroneous and prejudicial in the interest of revenue to make inter alia in order after complying with the requirements of that section, cancelling the assessment and directing a fresh assessment. Sub-section (2) of that section makes it clear that no order can be made under that section to revise an order of reassessment made under the provisions of Section 34. If the order of assessment did not include an order of reassessment made under the provisions of Section 34, there would have been hardly any necessity of making a provision in sub-section (2) of Section 33-B that no order can be made under sub-section (1) of that section to revise an order of reassessment made under the provisions of Section 34.9. According to Section 67 of the Act, no suit shall be brought in any Civil Court to set aside or modify any assessment made under the Act. It is obvious that the protection afforded by that section would be available not only for the original assessments but also for reassessments made under Section 34 of the Act even though the word used in the section is assessment and not reassessment. Likewise, the fact that the legislature has used the word "assessments" and not "re-assessments" in the second proviso to Section 17 (1) of the Act would not exclude the applicability of that proviso to cases of reassessments subsequent to the filing of the declaration.10. The matter may also be looked at from another angle. Proceedings under Section 34 of the Act can be initiated if the Income-tax officer has reason to believe that income, profits or gains chargeable to income-tax have escaped assessment for any year or have been under-assessed or assessed at too low a rate or have been made the subject of excessive relief under; the Act or excessive loss or depreciation allowance has been computed. The first of the above five contingencies deals with income, profits and gains chargeable to income-tax escaping assessment. In such an event the income-tax officer would after initiating proceedings under Section 34 make assessment of such income, profit or gain. In the order four contingencies, the order made by the income-tax officer would be for re-assessing such income, profit or gain or re-computing the loss or depreciation allowance. If the view propounded on behalf of the revenue were to be accepted that assessment does not include reassessment made under Section 34 of the Act, the result would be that the benefit of the declaration made under Section 17 (1) of the Act, in case other conditions are fulfilled, would be available only in the first contingency mentioned above relating to escapted assessment and not in the remaining contingencies because they pertain to reassessment. This would certainly be anomalous for it would result in placing persons whose income has escapted assessment in a better position compared to persons whose income has been under-assessed or assessed at too law a rate or has been the subject of excessive relief under the Act or in; whose cases excessive loss or depreciation allowance has been computed. This could hardly have been the intention of the legislature. | 1 | 3,109 | 1,217 | ### 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:
think it should be taken in the context of Section 13 (1) of the Finance Act, 1950, it would include re-assessment made under the provisions of the Act. Such `re-assessment will without doubt come within the expression `levy, assessment and collection of income-tax. In this speech in Commr. for General Purposes of Income-tax for the City of London v. Gibbs, 1942 AC 402at p. 406 Lord Simon has pointed out that the word `assessment is used in the English Income-tax Code in more than one sense; and sometimes within the bounds of the same section, two separate meanings of the word may be found. One meaning is the fixing of the sum taken to represent the actual profit and the other the actual sum in tax which the taxpayer is liable to pay.It has been contended before us that the Finance Act and the Income-tax Act should be read together as forming one code, and so read the words assessment and `re-assessment acquire definite and distinct connotations. We are unable to agree, for the reasons which we have already given, that even if we read the Finance Act along with the Income-tax Act the word assessment can be given a restricted meaning. To repeat those reasons: the Income-tax Code itself uses the word assessment in different senses, and in the context and collocation of the words of the Finance Act, the word `assessment is capable of bearing a comprehensive meaning only."In the context of Section 17 (1) of the Act the word "assessment" must necessarily include the reassessment under Section 34 of the Act. To hold otherwise would result in an anemalous situation. This can best be illustrated by taking a concrete case. An assessee files a declaration under Section 17 (1) of the Act in respect of the assessment year 1955-56. Supposing his assessment for the year 1956-57 is reopened and an order for reassessment is made. In case the declaration made under Section 17 (1) can be availed of only for the original assessments and not for reassessments under Section 34 of the Act, the result would necessarily be that the declaration would have to be excluded from consideration in making the reassessment for the year 1956-57 even though the declaration had been filed much earlier. This could hardly have been the intention of the legislature. The entire scheme of Section 17 (1) as well as the context in our opinion clearly shows that the word "assessment" in Section 17 (1) has been used in a comprehensive sense so as to include reassessment.8. It may also be observed that there are indications in the Act that whenever the legislature intended that the word "assessment" should not include reassessment, it used express words for the purpose. Section 33-B of the Act empowers the Commissioner of Income-tax if he considers any order passed by the income-tax officer to be erroneous and prejudicial in the interest of revenue to make inter alia in order after complying with the requirements of that section, cancelling the assessment and directing a fresh assessment. Sub-section (2) of that section makes it clear that no order can be made under that section to revise an order of reassessment made under the provisions of Section 34. If the order of assessment did not include an order of reassessment made under the provisions of Section 34, there would have been hardly any necessity of making a provision in sub-section (2) of Section 33-B that no order can be made under sub-section (1) of that section to revise an order of reassessment made under the provisions of Section 34.9. According to Section 67 of the Act, no suit shall be brought in any Civil Court to set aside or modify any assessment made under the Act. It is obvious that the protection afforded by that section would be available not only for the original assessments but also for reassessments made under Section 34 of the Act even though the word used in the section is assessment and not reassessment. Likewise, the fact that the legislature has used the word "assessments" and not "re-assessments" in the second proviso to Section 17 (1) of the Act would not exclude the applicability of that proviso to cases of reassessments subsequent to the filing of the declaration.10. The matter may also be looked at from another angle. Proceedings under Section 34 of the Act can be initiated if the Income-tax officer has reason to believe that income, profits or gains chargeable to income-tax have escaped assessment for any year or have been under-assessed or assessed at too low a rate or have been made the subject of excessive relief under; the Act or excessive loss or depreciation allowance has been computed. The first of the above five contingencies deals with income, profits and gains chargeable to income-tax escaping assessment. In such an event the income-tax officer would after initiating proceedings under Section 34 make assessment of such income, profit or gain. In the order four contingencies, the order made by the income-tax officer would be for re-assessing such income, profit or gain or re-computing the loss or depreciation allowance. If the view propounded on behalf of the revenue were to be accepted that assessment does not include reassessment made under Section 34 of the Act, the result would be that the benefit of the declaration made under Section 17 (1) of the Act, in case other conditions are fulfilled, would be available only in the first contingency mentioned above relating to escapted assessment and not in the remaining contingencies because they pertain to reassessment. This would certainly be anomalous for it would result in placing persons whose income has escapted assessment in a better position compared to persons whose income has been under-assessed or assessed at too law a rate or has been the subject of excessive relief under the Act or in; whose cases excessive loss or depreciation allowance has been computed. This could hardly have been the intention of the legislature.
### Response:
1
### Explanation:
any year. The assessee was accordingly allowed to make the declaration after the expiry of the prescribed period. According to the second proviso to Section 17 (1) of the Act, once the assessee is allowed to make the declaration after the expiry of the period specified "such declaration shall have effect in relation to the assessment for the year in which the declaration is made (if such assessment had not been completed before such declaration) and all assessments thereafter". The words of the second proviso to Section 17 (1) reproduced above make it clear that the declaration would be operative not only for the assessment for the year in which the declaration is made if such assessment had not been completed before such declaration, but also for all assessments to be made thereafter. The words "all assessments thereafter", in our opinion, signify not only assessments for the subsequent years but would also cover assessments for the earlier years in case the assessments for those earlier years are being made subsequent to the filing of the declaration. The words "all assessments thereafter" have a wide amplitude and we see no cogent reason for not giving them their natural meaning or for restricting their scope. Those words would include within their ambit all assessments made subsequent to the filing of the declaration and it would be wrong to so construe them as if the legislature had used the words "all assessments for the subsequentthe context of Section 17 (1) of the Act the word "assessment" must necessarily include the reassessment under Section 34 of the Act. To hold otherwise would result in an anemalous situation. This can best be illustrated by taking a concrete case. An assessee files a declaration under Section 17 (1) of the Act in respect of the assessment year 1955-56. Supposing his assessment for the year 1956-57 is reopened and an order for reassessment is made. In case the declaration made under Section 17 (1) can be availed of only for the original assessments and not for reassessments under Section 34 of the Act, the result would necessarily be that the declaration would have to be excluded from consideration in making the reassessment for the year 1956-57 even though the declaration had been filed much earlier. This could hardly have been the intention of the legislature. The entire scheme of Section 17 (1) as well as the context in our opinion clearly shows that the word "assessment" in Section 17 (1) has been used in a comprehensive sense so as to include reassessment.8. It may also be observed that there are indications in the Act that whenever the legislature intended that the word "assessment" should not include reassessment, it used express words for the purpose. Section 33-B of the Act empowers the Commissioner of Income-tax if he considers any order passed by the income-tax officer to be erroneous and prejudicial in the interest of revenue to make inter alia in order after complying with the requirements of that section, cancelling the assessment and directing a fresh assessment. Sub-section (2) of that section makes it clear that no order can be made under that section to revise an order of reassessment made under the provisions of Section 34. If the order of assessment did not include an order of reassessment made under the provisions of Section 34, there would have been hardly any necessity of making a provision in sub-section (2) of Section 33-B that no order can be made under sub-section (1) of that section to revise an order of reassessment made under the provisions of Section 34.9. According to Section 67 of the Act, no suit shall be brought in any Civil Court to set aside or modify any assessment made under the Act. It is obvious that the protection afforded by that section would be available not only for the original assessments but also for reassessments made under Section 34 of the Act even though the word used in the section is assessment and not reassessment. Likewise, the fact that the legislature has used the word "assessments" and not "re-assessments" in the second proviso to Section 17 (1) of the Act would not exclude the applicability of that proviso to cases of reassessments subsequent to the filing of the declaration.10. The matter may also be looked at from another angle. Proceedings under Section 34 of the Act can be initiated if the Income-tax officer has reason to believe that income, profits or gains chargeable to income-tax have escaped assessment for any year or have been under-assessed or assessed at too low a rate or have been made the subject of excessive relief under; the Act or excessive loss or depreciation allowance has been computed. The first of the above five contingencies deals with income, profits and gains chargeable to income-tax escaping assessment. In such an event the income-tax officer would after initiating proceedings under Section 34 make assessment of such income, profit or gain. In the order four contingencies, the order made by the income-tax officer would be for re-assessing such income, profit or gain or re-computing the loss or depreciation allowance. If the view propounded on behalf of the revenue were to be accepted that assessment does not include reassessment made under Section 34 of the Act, the result would be that the benefit of the declaration made under Section 17 (1) of the Act, in case other conditions are fulfilled, would be available only in the first contingency mentioned above relating to escapted assessment and not in the remaining contingencies because they pertain to reassessment. This would certainly be anomalous for it would result in placing persons whose income has escapted assessment in a better position compared to persons whose income has been under-assessed or assessed at too law a rate or has been the subject of excessive relief under the Act or in; whose cases excessive loss or depreciation allowance has been computed. This could hardly have been the intention of the legislature.
|
Commnr. Of Central Excise, Bangalore Vs. M/S Brindavan Beverages (P) Ltd. | and consequently the franchise also started availing the SSI benefit which was not eligible as the investigations revealed that "Citra" was developed and launched by the R & D efforts of PEL and was got registered as a brand name of LFFL. It was alleged that they have deliberately fragmented the manufacture of flavours to avail the benefit. The Parle Group Management, centrally and commonly, controlled the production including all aspects thereof were managed and controlled by the executives of PEL. If the shelter of corporate veil was lifted and removed, then it was seen that for purposes of other taxes it was one, but for notifications under Central Excise, they were shown as separate persons. Therefore, the value of clearance of all excisable goods removed from PEL, PIL and LFFL were to be taken together to determine the eligibility of LFFL. The benefits which LFFL were availing of the SSI claimed by them were not available to them and since there was a deliberate fragmentation of manufacture to avail SSI exemption, the benefit of exemption on "Citra" was not eligible. Therefore, excise duty amounting to Rs.79,48,115/- for the period October 1990 to January 1994 in respect of "Citra" was demandable by invoking the longer period of limitation in view of the deliberate suppression of facts. 3. Notices submitted their replies. On consideration of the submissions, proceedings initiated on the basis of the show cause notice dated 4.5.1995. Revenue preferred appeals before the CEGAT. 4. After considering the rival submissions, the CEGAT held that the order of the Commissioner dropping the proceedings did not suffer from any infirmity. 5. The CEGAT did not find any substance in this plea as there was no such brand name as "Bisleri Club Soda" which has been registered by the Trade Mark Authorities. What was registered for use under the Trade Marks Act is the word "Bisleri" for goods "soda" being aerated water and words "Bisleri for Bear and non-alcoholic beverages and syrups". The CEGAT found that no evidence was brought on record to indicate the words as used exist as a trade mark or any other marks belonging to another person who is not entitled to the benefits under the Notification. 6. In support of the appeals, learned counsel for the appellant submitted that the CEGAT has lost sight of the fact that there was necessity to lift the corporate veil and find out as to who was the real owner of the brand name. It was submitted that the supervision and the decision making power lay with somebody else and not the respondents. 7. Mr. A. Subba Rao, learned counsel for the appellant has submitted that respondent BBPL had the franchise of M/s Parley Exports Ltd. under whose brand name they had manufactured aerated water in the brand names of Limca, Thums Up and Gold Spot. Respondent had also manufactured aerated water in the name and style of Citra said to be the brand name of M/s. Limca Flavours and Fragrances Ltd., a holding company of PEL in which 50% shares are held each by Shri Ramesh J. Chauhan and Shri Prakash J Chauhan both of whom happened to be brothers. Additionally, the respondents also manufactured goods under the brand name of "Bisleri Club Soda" with the permission of M/s Acqua Minerals (P) Ltd., New Delhi. With reference to the various positions and as Directors in LFFL, PEL, AMPL, PIL, Apex Traders, M/s Coolade Beverages (P) Ltd. And M/s Delhi Bottling Co. Ltd. it is submitted that either Shri Ramesh J Chauhan or Prakash J Chauhan or persons related to him or being members of the Board of Directors of various companies had right to create facet to avail the benefits under the Notification in question. Since these concerns could not have availed the benefits they have created dummy concerns to avail the benefits. It is submitted that in the circumstances there was necessity to lift the corporate veil to find out the true owners. 8. Per contra, learned counsel for the respondents submitted that there is no material that the respondents had ever been parties to the so called arrangement, even if it is accepted for the sake of arguments but not conceded, that such arrangement was in reality made. There was no material brought on record to show that the respondents had any role to play in such matters as alleged. Even the show cause notice did not refer to any particular material to come to such a conclusion. Therefore, the Commissioner and the CEGAT were justified in holding that the respondents were entitled to the benefits. 9. We find that in the show cause notice there was nothing specific as to the role of the respondents, if any. The arrangements as alleged have not been shown to be within the knowledge or at the behest or with the connivance of the respondents. Independent arrangements were entered into by the respondents with the franchise holder. On a perusal of the show cause notice the stand of the respondents clearly gets established.10. There is no allegation of the respondents being parties to any arrangement. In any event, no material in that regard was placed on record. The show cause notice is the foundation on which the department has to build up its case. If the allegations in the show cause notice are not specific and are on the contrary vague, lack details and/or unintelligible that is sufficient to hold that the notice was not given proper opportunity to meet the allegations indicated in the show cause notice. In the instant case, what the appellant has tried to highlight is the alleged connection between the various concerns. That is not sufficient to proceed against the respondents unless it is shown that they were parties to the arrangements, if any. As no sufficient material much less any material has been placed on record to substantiate the stand of the appellant, the conclusions of the Commissioner as affirmed by the CEGAT cannot be faulted. | 0[ds]9. We find that in the show cause notice there was nothing specific as to the role of the respondents, if any. The arrangements as alleged have not been shown to be within the knowledge or at the behest or with the connivance of the respondents. Independent arrangements were entered into by the respondents with the franchise holder. On a perusal of the show cause notice the stand of the respondents clearly gets established.10. There is no allegation of the respondents being parties to any arrangement. In any event, no material in that regard was placed on record. The show cause notice is the foundation on which the department has to build up its case. If the allegations in the show cause notice are not specific and are on the contrary vague, lack details and/or unintelligible that is sufficient to hold that the notice was not given proper opportunity to meet the allegations indicated in the show cause notice. In the instant case, what the appellant has tried to highlight is the alleged connection between the various concerns. That is not sufficient to proceed against the respondents unless it is shown that they were parties to the arrangements, if any. As no sufficient material much less any material has been placed on record to substantiate the stand of the appellant, the conclusions of the Commissioner as affirmed by the CEGAT cannot be faulted. | 0 | 1,687 | 256 | ### 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:
and consequently the franchise also started availing the SSI benefit which was not eligible as the investigations revealed that "Citra" was developed and launched by the R & D efforts of PEL and was got registered as a brand name of LFFL. It was alleged that they have deliberately fragmented the manufacture of flavours to avail the benefit. The Parle Group Management, centrally and commonly, controlled the production including all aspects thereof were managed and controlled by the executives of PEL. If the shelter of corporate veil was lifted and removed, then it was seen that for purposes of other taxes it was one, but for notifications under Central Excise, they were shown as separate persons. Therefore, the value of clearance of all excisable goods removed from PEL, PIL and LFFL were to be taken together to determine the eligibility of LFFL. The benefits which LFFL were availing of the SSI claimed by them were not available to them and since there was a deliberate fragmentation of manufacture to avail SSI exemption, the benefit of exemption on "Citra" was not eligible. Therefore, excise duty amounting to Rs.79,48,115/- for the period October 1990 to January 1994 in respect of "Citra" was demandable by invoking the longer period of limitation in view of the deliberate suppression of facts. 3. Notices submitted their replies. On consideration of the submissions, proceedings initiated on the basis of the show cause notice dated 4.5.1995. Revenue preferred appeals before the CEGAT. 4. After considering the rival submissions, the CEGAT held that the order of the Commissioner dropping the proceedings did not suffer from any infirmity. 5. The CEGAT did not find any substance in this plea as there was no such brand name as "Bisleri Club Soda" which has been registered by the Trade Mark Authorities. What was registered for use under the Trade Marks Act is the word "Bisleri" for goods "soda" being aerated water and words "Bisleri for Bear and non-alcoholic beverages and syrups". The CEGAT found that no evidence was brought on record to indicate the words as used exist as a trade mark or any other marks belonging to another person who is not entitled to the benefits under the Notification. 6. In support of the appeals, learned counsel for the appellant submitted that the CEGAT has lost sight of the fact that there was necessity to lift the corporate veil and find out as to who was the real owner of the brand name. It was submitted that the supervision and the decision making power lay with somebody else and not the respondents. 7. Mr. A. Subba Rao, learned counsel for the appellant has submitted that respondent BBPL had the franchise of M/s Parley Exports Ltd. under whose brand name they had manufactured aerated water in the brand names of Limca, Thums Up and Gold Spot. Respondent had also manufactured aerated water in the name and style of Citra said to be the brand name of M/s. Limca Flavours and Fragrances Ltd., a holding company of PEL in which 50% shares are held each by Shri Ramesh J. Chauhan and Shri Prakash J Chauhan both of whom happened to be brothers. Additionally, the respondents also manufactured goods under the brand name of "Bisleri Club Soda" with the permission of M/s Acqua Minerals (P) Ltd., New Delhi. With reference to the various positions and as Directors in LFFL, PEL, AMPL, PIL, Apex Traders, M/s Coolade Beverages (P) Ltd. And M/s Delhi Bottling Co. Ltd. it is submitted that either Shri Ramesh J Chauhan or Prakash J Chauhan or persons related to him or being members of the Board of Directors of various companies had right to create facet to avail the benefits under the Notification in question. Since these concerns could not have availed the benefits they have created dummy concerns to avail the benefits. It is submitted that in the circumstances there was necessity to lift the corporate veil to find out the true owners. 8. Per contra, learned counsel for the respondents submitted that there is no material that the respondents had ever been parties to the so called arrangement, even if it is accepted for the sake of arguments but not conceded, that such arrangement was in reality made. There was no material brought on record to show that the respondents had any role to play in such matters as alleged. Even the show cause notice did not refer to any particular material to come to such a conclusion. Therefore, the Commissioner and the CEGAT were justified in holding that the respondents were entitled to the benefits. 9. We find that in the show cause notice there was nothing specific as to the role of the respondents, if any. The arrangements as alleged have not been shown to be within the knowledge or at the behest or with the connivance of the respondents. Independent arrangements were entered into by the respondents with the franchise holder. On a perusal of the show cause notice the stand of the respondents clearly gets established.10. There is no allegation of the respondents being parties to any arrangement. In any event, no material in that regard was placed on record. The show cause notice is the foundation on which the department has to build up its case. If the allegations in the show cause notice are not specific and are on the contrary vague, lack details and/or unintelligible that is sufficient to hold that the notice was not given proper opportunity to meet the allegations indicated in the show cause notice. In the instant case, what the appellant has tried to highlight is the alleged connection between the various concerns. That is not sufficient to proceed against the respondents unless it is shown that they were parties to the arrangements, if any. As no sufficient material much less any material has been placed on record to substantiate the stand of the appellant, the conclusions of the Commissioner as affirmed by the CEGAT cannot be faulted.
### Response:
0
### Explanation:
9. We find that in the show cause notice there was nothing specific as to the role of the respondents, if any. The arrangements as alleged have not been shown to be within the knowledge or at the behest or with the connivance of the respondents. Independent arrangements were entered into by the respondents with the franchise holder. On a perusal of the show cause notice the stand of the respondents clearly gets established.10. There is no allegation of the respondents being parties to any arrangement. In any event, no material in that regard was placed on record. The show cause notice is the foundation on which the department has to build up its case. If the allegations in the show cause notice are not specific and are on the contrary vague, lack details and/or unintelligible that is sufficient to hold that the notice was not given proper opportunity to meet the allegations indicated in the show cause notice. In the instant case, what the appellant has tried to highlight is the alleged connection between the various concerns. That is not sufficient to proceed against the respondents unless it is shown that they were parties to the arrangements, if any. As no sufficient material much less any material has been placed on record to substantiate the stand of the appellant, the conclusions of the Commissioner as affirmed by the CEGAT cannot be faulted.
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Provat Kumar Mitter Vs. Commissioner Of Income Tax,West Bengal | the question did not arise out of the Tribunals order. We must, therefore, overrule this contention. 7. Now, as to the correctness of the answer given by the High Court. Learned counsel for the appellant has contended that the High Court did not correctly construe the instrument of January 19, 1953, and on a proper construction, the High Court should have held that a right of property in praesenti was assigned in favour of the wife. Learned counsel has submitted that the assessee as a registered holder of 500 Ordinary shares of the Calcutta Agency Ltd., had a bundle of rights in the company : (1) a right to vote; (2) a right to participate in the distribution of assets on dissolution or liquidation of the Company; and (3) a right to participate in the profits, e.g., dividends which might be declared. It is contended that the aforesaid third right was assigned to the wife by the assessee, and that the High Court ignored the said assignment while it emphasised the other covenants for endorsing or handing over the dividend warrants, etc. In support of his contention learned counsel has relied on certain observations made by this Court in Bacha F. Guzdar v. Commissioner of Income-tax, Bombay, 1955-1 SCR 876 at p. 883: ((S) AIR 1955 SC 74 at p 77). That was a case in which the question that arose for decision was whether dividend declared by a company growing and manufacturing tea was agricultural income within the meaning of S. 2(1) of the Income-tax Act and hence exempt from income-tax under S. 4(3) (viii) of the said Act. It was held that the dividend of a shareholder was the outcome of his right to participate in the profits of the company arising out of the contractual relation between the company and the share holder, and the observations on which learned counsel has relied were to the effect that "the right to participate in the profits exists independently of any declaration by the company with the only difference that the enjoyment of profits is postponed until dividends are declared." 8. We do not think that those observations are of any assistance to the appellant in the solution of the question before us, which is really one of construction of the instrument of January 19, 1953. A transfer of property may take place not only in the present, but also in future; but the property must be in existence. It is clear to us that the instrument of January 19, 1953, was not a transfer of any existing property of the assessee. It was in its true nature a contract to transfer or make over in future every dividend and sum of money which may be declared or become due and payable on account or in respect of the shares held by the assessee, to his wife during her lifetime; the other covenants are ancillary in nature and subserve this main object of the contract. The assessee did not assign the shares and, therefore, retained the right to participate in the profits of the company; he did not part with that right. What the contract provide for was merely this: the beneficiary was given the right to receive from the assessee every dividend and other sum of money which may be declared or become due and payable in respect of the shares. If this is the true construction of the document, then it is clear to us that the answer given by the High Court to the question referred to it is correct. The High Court rightly pointed out that the Company paying the dividend can pay it only to the registered shareholder or under his orders (see Howrah Trading co. Ltd. v. Commissioner of Income-tax, Central, calcutta, 1959-36 ITR 215 : (AIR 1959 SC 775 )); therefore, S. 16(1)(c) of the Income-tax Act was not attracted nor the third proviso thereto, and the income continued to accrue to the assessee but was thereafter paid over to his wife under the terms of the contract. The income was, therefore, assessable in the hands of the assessee, because it was part of his income though applied subsequently towards payment to the wife under the terms of the contract. 9. In this view of the matter, it is not necessary to decide the further question if a contract of this nature operates only as a contract to be performed in future which may be specifically enforced as soon as the property comes into existence or is a contract which fastens upon the property as soon as the settlor acquires it. In either view, the income from the shares will first accrue to the settlor before the beneficiary can get it. Such income will undoubtedly be assessable in the hands of the settlor despite the contract. We think that the true position is that if a person has alienated or assigned the source of his income so that it is no longer his, he may not be taxed upon the income arising after the assignment of the source, apart from special statutory provisions like S. 16(1)(c) or S. 16(3) which artificially deem it to be the assignors income. But if the assessee merely applies the income so that it passes through him and goes on to an ultimate purpose, even though he may have entered into a legal obligation to apply it in that way, it remains his income. This is exactly what has happened in the present case. We need only add that the principle laid down by the Privy Council in Bejoy Singh Dudhuria v. Commissioner of Income-tax, 1933-1 ITR 135 : (AIR 1933 PC 145 ) does not apply to this case; because this is not a case of an allocation of a sum out of revenue before it becomes income in the hands of the assessee. In other words, this is not a case of diversion of income before it accrues but of application of income after it accrues. | 1[ds]7. Now, as to the correctness of the answer given by the High Court. Learned counsel for the appellant has contended that the High Court did not correctly construe the instrument of January 19, 1953, and on a proper construction, the High Court should have held that a right of property in praesenti was assigned in favour of the wife. Learned counsel has submitted that the assessee as a registered holder of 500 Ordinary shares of the Calcutta Agency Ltd., had a bundle of rights in the company : (1) a right to vote; (2) a right to participate in the distribution of assets on dissolution or liquidation of the Company; and (3) a right to participate in the profits, e.g., dividends which might be declared. It is contended that the aforesaid third right was assigned to the wife by the assessee, and that the High Court ignored the said assignment while it emphasised the other covenants for endorsing or handing over the dividend warrants, etc8. We do not think that those observations are of any assistance to the appellant in the solution of the question before us, which is really one of construction of the instrument of January 19, 1953. A transfer of property may take place not only in the present, but also in future; but the property must be in existence. It is clear to us that the instrument of January 19, 1953, was not a transfer of any existing property of the assessee. It was in its true nature a contract to transfer or make over in future every dividend and sum of money which may be declared or become due and payable on account or in respect of the shares held by the assessee, to his wife during her lifetime; the other covenants are ancillary in nature and subserve this main object of the contract. The assessee did not assign the shares and, therefore, retained the right to participate in the profits of the company; he did not part with that right. What the contract provide for was merely this: the beneficiary was given the right to receive from the assessee every dividend and other sum of money which may be declared or become due and payable in respect of the shares. If this is the true construction of the document, then it is clear to us that the answer given by the High Court to the question referred to it is correct. The High Court rightly pointed out that the Company paying the dividend can pay it only to the registered shareholder or under his orders9. In this view of the matter, it is not necessary to decide the further question if a contract of this nature operates only as a contract to be performed in future which may be specifically enforced as soon as the property comes into existence or is a contract which fastens upon the property as soon as the settlor acquires it. In either view, the income from the shares will first accrue to the settlor before the beneficiary can get it. Such income will undoubtedly be assessable in the hands of the settlor despite the contract. We think that the true position is that if a person has alienated or assigned the source of his income so that it is no longer his, he may not be taxed upon the income arising after the assignment of the source, apart from special statutory provisions like S. 16(1)(c) or S. 16(3) which artificially deem it to be the assignors income. But if the assessee merely applies the income so that it passes through him and goes on to an ultimate purpose, even though he may have entered into a legal obligation to apply it in that way, it remains his income. This is exactly what has happened in the present case. | 1 | 2,745 | 708 | ### Instruction:
Determine the likely decision of the case (acceptance (1) or rejection (0)) and follow up with an explanation highlighting key sentences that support this prediction.
### Input:
the question did not arise out of the Tribunals order. We must, therefore, overrule this contention. 7. Now, as to the correctness of the answer given by the High Court. Learned counsel for the appellant has contended that the High Court did not correctly construe the instrument of January 19, 1953, and on a proper construction, the High Court should have held that a right of property in praesenti was assigned in favour of the wife. Learned counsel has submitted that the assessee as a registered holder of 500 Ordinary shares of the Calcutta Agency Ltd., had a bundle of rights in the company : (1) a right to vote; (2) a right to participate in the distribution of assets on dissolution or liquidation of the Company; and (3) a right to participate in the profits, e.g., dividends which might be declared. It is contended that the aforesaid third right was assigned to the wife by the assessee, and that the High Court ignored the said assignment while it emphasised the other covenants for endorsing or handing over the dividend warrants, etc. In support of his contention learned counsel has relied on certain observations made by this Court in Bacha F. Guzdar v. Commissioner of Income-tax, Bombay, 1955-1 SCR 876 at p. 883: ((S) AIR 1955 SC 74 at p 77). That was a case in which the question that arose for decision was whether dividend declared by a company growing and manufacturing tea was agricultural income within the meaning of S. 2(1) of the Income-tax Act and hence exempt from income-tax under S. 4(3) (viii) of the said Act. It was held that the dividend of a shareholder was the outcome of his right to participate in the profits of the company arising out of the contractual relation between the company and the share holder, and the observations on which learned counsel has relied were to the effect that "the right to participate in the profits exists independently of any declaration by the company with the only difference that the enjoyment of profits is postponed until dividends are declared." 8. We do not think that those observations are of any assistance to the appellant in the solution of the question before us, which is really one of construction of the instrument of January 19, 1953. A transfer of property may take place not only in the present, but also in future; but the property must be in existence. It is clear to us that the instrument of January 19, 1953, was not a transfer of any existing property of the assessee. It was in its true nature a contract to transfer or make over in future every dividend and sum of money which may be declared or become due and payable on account or in respect of the shares held by the assessee, to his wife during her lifetime; the other covenants are ancillary in nature and subserve this main object of the contract. The assessee did not assign the shares and, therefore, retained the right to participate in the profits of the company; he did not part with that right. What the contract provide for was merely this: the beneficiary was given the right to receive from the assessee every dividend and other sum of money which may be declared or become due and payable in respect of the shares. If this is the true construction of the document, then it is clear to us that the answer given by the High Court to the question referred to it is correct. The High Court rightly pointed out that the Company paying the dividend can pay it only to the registered shareholder or under his orders (see Howrah Trading co. Ltd. v. Commissioner of Income-tax, Central, calcutta, 1959-36 ITR 215 : (AIR 1959 SC 775 )); therefore, S. 16(1)(c) of the Income-tax Act was not attracted nor the third proviso thereto, and the income continued to accrue to the assessee but was thereafter paid over to his wife under the terms of the contract. The income was, therefore, assessable in the hands of the assessee, because it was part of his income though applied subsequently towards payment to the wife under the terms of the contract. 9. In this view of the matter, it is not necessary to decide the further question if a contract of this nature operates only as a contract to be performed in future which may be specifically enforced as soon as the property comes into existence or is a contract which fastens upon the property as soon as the settlor acquires it. In either view, the income from the shares will first accrue to the settlor before the beneficiary can get it. Such income will undoubtedly be assessable in the hands of the settlor despite the contract. We think that the true position is that if a person has alienated or assigned the source of his income so that it is no longer his, he may not be taxed upon the income arising after the assignment of the source, apart from special statutory provisions like S. 16(1)(c) or S. 16(3) which artificially deem it to be the assignors income. But if the assessee merely applies the income so that it passes through him and goes on to an ultimate purpose, even though he may have entered into a legal obligation to apply it in that way, it remains his income. This is exactly what has happened in the present case. We need only add that the principle laid down by the Privy Council in Bejoy Singh Dudhuria v. Commissioner of Income-tax, 1933-1 ITR 135 : (AIR 1933 PC 145 ) does not apply to this case; because this is not a case of an allocation of a sum out of revenue before it becomes income in the hands of the assessee. In other words, this is not a case of diversion of income before it accrues but of application of income after it accrues.
### Response:
1
### Explanation:
7. Now, as to the correctness of the answer given by the High Court. Learned counsel for the appellant has contended that the High Court did not correctly construe the instrument of January 19, 1953, and on a proper construction, the High Court should have held that a right of property in praesenti was assigned in favour of the wife. Learned counsel has submitted that the assessee as a registered holder of 500 Ordinary shares of the Calcutta Agency Ltd., had a bundle of rights in the company : (1) a right to vote; (2) a right to participate in the distribution of assets on dissolution or liquidation of the Company; and (3) a right to participate in the profits, e.g., dividends which might be declared. It is contended that the aforesaid third right was assigned to the wife by the assessee, and that the High Court ignored the said assignment while it emphasised the other covenants for endorsing or handing over the dividend warrants, etc8. We do not think that those observations are of any assistance to the appellant in the solution of the question before us, which is really one of construction of the instrument of January 19, 1953. A transfer of property may take place not only in the present, but also in future; but the property must be in existence. It is clear to us that the instrument of January 19, 1953, was not a transfer of any existing property of the assessee. It was in its true nature a contract to transfer or make over in future every dividend and sum of money which may be declared or become due and payable on account or in respect of the shares held by the assessee, to his wife during her lifetime; the other covenants are ancillary in nature and subserve this main object of the contract. The assessee did not assign the shares and, therefore, retained the right to participate in the profits of the company; he did not part with that right. What the contract provide for was merely this: the beneficiary was given the right to receive from the assessee every dividend and other sum of money which may be declared or become due and payable in respect of the shares. If this is the true construction of the document, then it is clear to us that the answer given by the High Court to the question referred to it is correct. The High Court rightly pointed out that the Company paying the dividend can pay it only to the registered shareholder or under his orders9. In this view of the matter, it is not necessary to decide the further question if a contract of this nature operates only as a contract to be performed in future which may be specifically enforced as soon as the property comes into existence or is a contract which fastens upon the property as soon as the settlor acquires it. In either view, the income from the shares will first accrue to the settlor before the beneficiary can get it. Such income will undoubtedly be assessable in the hands of the settlor despite the contract. We think that the true position is that if a person has alienated or assigned the source of his income so that it is no longer his, he may not be taxed upon the income arising after the assignment of the source, apart from special statutory provisions like S. 16(1)(c) or S. 16(3) which artificially deem it to be the assignors income. But if the assessee merely applies the income so that it passes through him and goes on to an ultimate purpose, even though he may have entered into a legal obligation to apply it in that way, it remains his income. This is exactly what has happened in the present case.
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Commissioner Of Income Tax,Delhi-Vi Vs. M/S Oriental Insurance Co. Ltd | India or the public sector undertakings before any court or tribunal so as to save limitation. But, before such filing every endeavour should be made to have the clearance of the High-Powered Committee.7. However, as to what the court or tribunal should do if such judicial remedies are sought before such a court or tribunal, the order of 11-10-19911 clarifies: (SCC p. 542, para 4)"4. It shall be the obligation of every court and every tribunal where such a dispute is raised hereafter to demand a clearance from the Committee in case it has not been so pleaded and in the absence of the clearance, the proceedings would not be proceeded with."8. Wherever appeals, petitions, etc. are filed without the clearance of the High-Powered Committee so as to save limitation, the appellant or the petitioner, as the case may be, shall within a month from such filing, refer the matter to the High-Powered Committee, with prior notice to the designated authority in the Cabinet Secretariat of the Government of India authorised to receive notices in that behalf. Shri K.T.S. Tulsi, learned Additional Solicitor General stated that in order to coordinate these references of the High-Powered Committee the Government proposes to nominate the Under-Secretary (Coordination) in the Cabinet Secretariat as the nodal authority to coordinate these references. The reference shall be deemed to have been made and become effective only after a notice of the reference is lodged with the said nodal authority. The reference shall be deemed to be valid if made in the case of the Union of India by its Secretary, Ministry of Finance, Department of Revenue, and in the case of public sector undertakings by its Chairman, Managing Director or Chief Executive, as the case may be. It is only after such reference to the High-Powered Committee is made in the manner indicated that the operation of the order or proceedings under challenge shall be suspended till the High-Powered Committee resolves the dispute or gives clearance to the litigation. If the High-Powered Committee is unable to resolve the matter for reasons to be recorded by it, it shall grant clearance for the litigation." (underlined for emphasis) 6. Referring to the order passed by this Court on 11.10.1991 i.e. Oil and Natural Gas Commission and Anr. V. Collector of Central Excise (1995 Supp (4) SCC 541), this Court held that in the matter of setting up of the function of the High Powered Committee for resolving disputes between Union of India on one hand and Public Undertaking on the other required some clarification as some misconception arose.7. In ONGC Case No. I i.e. (1995 Supp (4) SCC 541) in para 3 it was noted as follows: "We direct that the Government of India shall set up a Committee consisting of representatives from the Ministry of Industry, the Bureau of Public Enterprises and the Ministry of Law, to monitor disputes between Ministry and Ministry of Government of India, Ministry and public sector undertakings of the Government of India and public sector undertakings in between themselves, to ensure that no litigation comes to Court or to a Tribunal without the matter having been first examined by the Committee and its clearance for litigation. Government may include a representative of the Ministry concerned in a specific case and one from the Ministry of Finance in the Committee. Senior officers only should be nominated so that the Committee would function with status, control and discipline." 8. In para 4 it was further observed as follows: "It shall be the obligation of every Court and every Tribunal where such a dispute is raised hereafter to demand a clearance from the Committee in case it has not been so pleaded and in the absence of the clearance, the proceedings would not be proceeded with." 9. Subsequently, the disputes involving the State Governments and the Public Sector Undertakings have been considered by this Court and one such matter was dealt with in Oil and Natural Gas Corporation Ltd. V. City & Industrial Development Corporation, Maharashtra Ltd. And Ors. (2007 (7) SCC 39 ).10. It needs to be emphasized that there was actually no rigid time frame indicated by this Court. The emphasis on one months time was to show urgency needed. Merely because there is some delay in approaching the Committee that does not make the action illegal. The Committee is required to deal with the matter expeditiously so that there is no unnecessary backlog of appeals which ultimately may not be pursued. In that sense, it is imperative that the concerned authorities take urgent action otherwise the intended objective would be frustrated. There is no scope for lethargy. It is to be tested by the Court as to whether there was any indifference and lethargy and in appropriate cases refuse to interfere. In these cases factual position is not that. Therefore, we set aside the order of the High Court in each case and direct consideration of the question of desirability to proceed in the matter before it on receipt of the report from the concerned Committee. 11. Learned counsel for the appellant submitted that even if the Committee has declined to grant permission it is still open to raise the issues in appropriate proceedings. We express no opinion in that regard. But where the Committee has declined to deal with the matter on the ground of belated approach, the same cannot be sustained in view of our present order. The Committee has to consider the matter on merits. 12. It is to be noted that where permission has been granted by the Committee there is no impediment on the Court to examine the matter and take a decision on merits. But where there is no belated approach as noted above, the matter has to be decided. Court has to decide whether because of unexplained delay and lethargic action it would decline to entertain the matters. That would depend on the factual scenario in each case, and no straight jacket formula can be adopted. | 1[ds]6. Accordingly, there should be no bar to the lodgement of an appeal or petition either by the Union of India or the public sector undertakings before any court or tribunal so as to save limitation. But, before such filing every endeavour should be made to have the clearance of the High-Powered Committee.7. However, as to what the court or tribunal should do if such judicial remedies are sought before such a court or tribunal, the order of 11-10-19911 clarifies: (SCC p. 542, para 4)"4. It shall be the obligation of every court and every tribunal where such a dispute is raised hereafter to demand a clearance from the Committee in case it has not been so pleaded and in the absence of the clearance, the proceedings would not be proceeded with."8. Wherever appeals, petitions, etc. are filed without the clearance of the High-Powered Committee so as to save limitation, the appellant or the petitioner, as the case may be, shall within a month from such filing, refer the matter to the High-Powered Committee, with prior notice to the designated authority in the Cabinet Secretariat of the Government of India authorised to receive notices in that behalf. Shri K.T.S. Tulsi, learned Additional Solicitor General stated that in order to coordinate these references of the High-Powered Committee the Government proposes to nominate the Under-Secretary (Coordination) in the Cabinet Secretariat as the nodal authority to coordinate these references. The reference shall be deemed to have been made and become effective only after a notice of the reference is lodged with the said nodal authority. The reference shall be deemed to be valid if made in the case of the Union of India by its Secretary, Ministry of Finance, Department of Revenue, and in the case of public sector undertakings by its Chairman, Managing Director or Chief Executive, as the case may be. It is only after such reference to the High-Powered Committee is made in the manner indicated that the operation of the order or proceedings under challenge shall be suspended till the High-Powered Committee resolves the dispute or gives clearance to the litigation. If the High-Powered Committee is unable to resolve the matter for reasons to be recorded by it, it shall grant clearance for the litigation." (underlined forReferring to the order passed by this Court on 11.10.1991 i.e. Oil and Natural Gas Commission and Anr. V. Collector of Central Excise (1995 Supp (4) SCC 541), this Court held that in the matter of setting up of the function of the High Powered Committee for resolving disputes between Union of India on one hand and Public Undertaking on the other required some clarification as some misconception arose.7. In ONGC Case No. I i.e. (1995 Supp (4) SCC 541) in para 3 it was noted asdirect that the Government of India shall set up a Committee consisting of representatives from the Ministry of Industry, the Bureau of Public Enterprises and the Ministry of Law, to monitor disputes between Ministry and Ministry of Government of India, Ministry and public sector undertakings of the Government of India and public sector undertakings in between themselves, to ensure that no litigation comes to Court or to a Tribunal without the matter having been first examined by the Committee and its clearance for litigation. Government may include a representative of the Ministry concerned in a specific case and one from the Ministry of Finance in the Committee. Senior officers only should be nominated so that the Committee would function with status, control and discipline.In para 4 it was further observed asshall be the obligation of every Court and every Tribunal where such a dispute is raised hereafter to demand a clearance from the Committee in case it has not been so pleaded and in the absence of the clearance, the proceedings would not be proceeded with.Subsequently, the disputes involving the State Governments and the Public Sector Undertakings have been considered by this Court and one such matter was dealt with in Oil and Natural Gas Corporation Ltd. V. City & Industrial Development Corporation, Maharashtra Ltd. And Ors. (2007 (7) SCC 39 ).10. It needs to be emphasized that there was actually no rigid time frame indicated by this Court. The emphasis on one months time was to show urgency needed. Merely because there is some delay in approaching the Committee that does not make the action illegal. The Committee is required to deal with the matter expeditiously so that there is no unnecessary backlog of appeals which ultimately may not be pursued. In that sense, it is imperative that the concerned authorities take urgent action otherwise the intended objective would be frustrated. There is no scope for lethargy. It is to be tested by the Court as to whether there was any indifference and lethargy and in appropriate cases refuse to interfere. In these cases factual position is not that. Therefore, we set aside the order of the High Court in each case and direct consideration of the question of desirability to proceed in the matter before it on receipt of the report from the concerned Committee. | 1 | 1,578 | 939 | ### 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:
India or the public sector undertakings before any court or tribunal so as to save limitation. But, before such filing every endeavour should be made to have the clearance of the High-Powered Committee.7. However, as to what the court or tribunal should do if such judicial remedies are sought before such a court or tribunal, the order of 11-10-19911 clarifies: (SCC p. 542, para 4)"4. It shall be the obligation of every court and every tribunal where such a dispute is raised hereafter to demand a clearance from the Committee in case it has not been so pleaded and in the absence of the clearance, the proceedings would not be proceeded with."8. Wherever appeals, petitions, etc. are filed without the clearance of the High-Powered Committee so as to save limitation, the appellant or the petitioner, as the case may be, shall within a month from such filing, refer the matter to the High-Powered Committee, with prior notice to the designated authority in the Cabinet Secretariat of the Government of India authorised to receive notices in that behalf. Shri K.T.S. Tulsi, learned Additional Solicitor General stated that in order to coordinate these references of the High-Powered Committee the Government proposes to nominate the Under-Secretary (Coordination) in the Cabinet Secretariat as the nodal authority to coordinate these references. The reference shall be deemed to have been made and become effective only after a notice of the reference is lodged with the said nodal authority. The reference shall be deemed to be valid if made in the case of the Union of India by its Secretary, Ministry of Finance, Department of Revenue, and in the case of public sector undertakings by its Chairman, Managing Director or Chief Executive, as the case may be. It is only after such reference to the High-Powered Committee is made in the manner indicated that the operation of the order or proceedings under challenge shall be suspended till the High-Powered Committee resolves the dispute or gives clearance to the litigation. If the High-Powered Committee is unable to resolve the matter for reasons to be recorded by it, it shall grant clearance for the litigation." (underlined for emphasis) 6. Referring to the order passed by this Court on 11.10.1991 i.e. Oil and Natural Gas Commission and Anr. V. Collector of Central Excise (1995 Supp (4) SCC 541), this Court held that in the matter of setting up of the function of the High Powered Committee for resolving disputes between Union of India on one hand and Public Undertaking on the other required some clarification as some misconception arose.7. In ONGC Case No. I i.e. (1995 Supp (4) SCC 541) in para 3 it was noted as follows: "We direct that the Government of India shall set up a Committee consisting of representatives from the Ministry of Industry, the Bureau of Public Enterprises and the Ministry of Law, to monitor disputes between Ministry and Ministry of Government of India, Ministry and public sector undertakings of the Government of India and public sector undertakings in between themselves, to ensure that no litigation comes to Court or to a Tribunal without the matter having been first examined by the Committee and its clearance for litigation. Government may include a representative of the Ministry concerned in a specific case and one from the Ministry of Finance in the Committee. Senior officers only should be nominated so that the Committee would function with status, control and discipline." 8. In para 4 it was further observed as follows: "It shall be the obligation of every Court and every Tribunal where such a dispute is raised hereafter to demand a clearance from the Committee in case it has not been so pleaded and in the absence of the clearance, the proceedings would not be proceeded with." 9. Subsequently, the disputes involving the State Governments and the Public Sector Undertakings have been considered by this Court and one such matter was dealt with in Oil and Natural Gas Corporation Ltd. V. City & Industrial Development Corporation, Maharashtra Ltd. And Ors. (2007 (7) SCC 39 ).10. It needs to be emphasized that there was actually no rigid time frame indicated by this Court. The emphasis on one months time was to show urgency needed. Merely because there is some delay in approaching the Committee that does not make the action illegal. The Committee is required to deal with the matter expeditiously so that there is no unnecessary backlog of appeals which ultimately may not be pursued. In that sense, it is imperative that the concerned authorities take urgent action otherwise the intended objective would be frustrated. There is no scope for lethargy. It is to be tested by the Court as to whether there was any indifference and lethargy and in appropriate cases refuse to interfere. In these cases factual position is not that. Therefore, we set aside the order of the High Court in each case and direct consideration of the question of desirability to proceed in the matter before it on receipt of the report from the concerned Committee. 11. Learned counsel for the appellant submitted that even if the Committee has declined to grant permission it is still open to raise the issues in appropriate proceedings. We express no opinion in that regard. But where the Committee has declined to deal with the matter on the ground of belated approach, the same cannot be sustained in view of our present order. The Committee has to consider the matter on merits. 12. It is to be noted that where permission has been granted by the Committee there is no impediment on the Court to examine the matter and take a decision on merits. But where there is no belated approach as noted above, the matter has to be decided. Court has to decide whether because of unexplained delay and lethargic action it would decline to entertain the matters. That would depend on the factual scenario in each case, and no straight jacket formula can be adopted.
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6. Accordingly, there should be no bar to the lodgement of an appeal or petition either by the Union of India or the public sector undertakings before any court or tribunal so as to save limitation. But, before such filing every endeavour should be made to have the clearance of the High-Powered Committee.7. However, as to what the court or tribunal should do if such judicial remedies are sought before such a court or tribunal, the order of 11-10-19911 clarifies: (SCC p. 542, para 4)"4. It shall be the obligation of every court and every tribunal where such a dispute is raised hereafter to demand a clearance from the Committee in case it has not been so pleaded and in the absence of the clearance, the proceedings would not be proceeded with."8. Wherever appeals, petitions, etc. are filed without the clearance of the High-Powered Committee so as to save limitation, the appellant or the petitioner, as the case may be, shall within a month from such filing, refer the matter to the High-Powered Committee, with prior notice to the designated authority in the Cabinet Secretariat of the Government of India authorised to receive notices in that behalf. Shri K.T.S. Tulsi, learned Additional Solicitor General stated that in order to coordinate these references of the High-Powered Committee the Government proposes to nominate the Under-Secretary (Coordination) in the Cabinet Secretariat as the nodal authority to coordinate these references. The reference shall be deemed to have been made and become effective only after a notice of the reference is lodged with the said nodal authority. The reference shall be deemed to be valid if made in the case of the Union of India by its Secretary, Ministry of Finance, Department of Revenue, and in the case of public sector undertakings by its Chairman, Managing Director or Chief Executive, as the case may be. It is only after such reference to the High-Powered Committee is made in the manner indicated that the operation of the order or proceedings under challenge shall be suspended till the High-Powered Committee resolves the dispute or gives clearance to the litigation. If the High-Powered Committee is unable to resolve the matter for reasons to be recorded by it, it shall grant clearance for the litigation." (underlined forReferring to the order passed by this Court on 11.10.1991 i.e. Oil and Natural Gas Commission and Anr. V. Collector of Central Excise (1995 Supp (4) SCC 541), this Court held that in the matter of setting up of the function of the High Powered Committee for resolving disputes between Union of India on one hand and Public Undertaking on the other required some clarification as some misconception arose.7. In ONGC Case No. I i.e. (1995 Supp (4) SCC 541) in para 3 it was noted asdirect that the Government of India shall set up a Committee consisting of representatives from the Ministry of Industry, the Bureau of Public Enterprises and the Ministry of Law, to monitor disputes between Ministry and Ministry of Government of India, Ministry and public sector undertakings of the Government of India and public sector undertakings in between themselves, to ensure that no litigation comes to Court or to a Tribunal without the matter having been first examined by the Committee and its clearance for litigation. Government may include a representative of the Ministry concerned in a specific case and one from the Ministry of Finance in the Committee. Senior officers only should be nominated so that the Committee would function with status, control and discipline.In para 4 it was further observed asshall be the obligation of every Court and every Tribunal where such a dispute is raised hereafter to demand a clearance from the Committee in case it has not been so pleaded and in the absence of the clearance, the proceedings would not be proceeded with.Subsequently, the disputes involving the State Governments and the Public Sector Undertakings have been considered by this Court and one such matter was dealt with in Oil and Natural Gas Corporation Ltd. V. City & Industrial Development Corporation, Maharashtra Ltd. And Ors. (2007 (7) SCC 39 ).10. It needs to be emphasized that there was actually no rigid time frame indicated by this Court. The emphasis on one months time was to show urgency needed. Merely because there is some delay in approaching the Committee that does not make the action illegal. The Committee is required to deal with the matter expeditiously so that there is no unnecessary backlog of appeals which ultimately may not be pursued. In that sense, it is imperative that the concerned authorities take urgent action otherwise the intended objective would be frustrated. There is no scope for lethargy. It is to be tested by the Court as to whether there was any indifference and lethargy and in appropriate cases refuse to interfere. In these cases factual position is not that. Therefore, we set aside the order of the High Court in each case and direct consideration of the question of desirability to proceed in the matter before it on receipt of the report from the concerned Committee.
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Colonel His Highness Sawai Tej Singhji, Maharaja of Alwar Vs. Union of India and Another | given after that date under clause 3 of Article XI of the Matsya Covenant and that the only surviving provision und er which disputes regarding property owned by the plaintiff could be determined after the 15th of May 1949, was Article XII of the Rajasthan Covenant. It is true that the expression "new Covenanting State" as defined in clause (c) of Article I of tha t Covenant meant only any of the four States of Bikaner, Jaipur, Jaisalmer and Jodhpur, that the definition was not amended by any provision of the Amending Agreement, so that the State of Alwar could not be regarded as a "new Covenanting Sta t. " for the purpose of clause (3) of Article XII of the Rajasthan Covenant and that the clause of that Article in accordance with which disputes relating to property claimed by tho Ruler of Alwar as his private property were to be determi ned was clause (2) which provided for their decision by a person nominated by the Government of India in that behalf. The fact remains, however, that no such person was ever nominated and that the letter dated the 14th September, 1949, cannot be con strued (for reasons already stated by us) as laying down a decision of any such person. What appears to have happened is that instead of following the course indicated in clause (2) last mentioned and having the disputes referred for decision to a person nominated by the Government of India, the parties (the Government of India and the appellant) decided to adopt the method of mutual agreement to settle those disputes-a method which always remained open to them, notwithstanding the Matsya Covenant and the Rajasthan Covenant. Such mutual agreement could, by no stretch of imagination be regarded as a decision by a person nominated by the Government of India either under clause (3) of Article XI of the Matsya Covenant or clause (2) of Article XII of the Rajasthan Covenant and must be deemed to be nothing more or less than an agreement simpliciter even though it was labelled as a "decision of the States Ministry" in the inventory appended to the letter dated the 14th September, 1949.11. Another contention raised by Mr. Sharma was that even if the letter dated the 14th September, 1949 was held to evidence an agreement, it was not hit by the provisions of article 363 of the Constitution inasmuch as it was an agreement resulting from the Rajasthan Covenant which alone according to him, was the agreement covered by the article. This contention is also without substance. Article 363 of the Constitution bars the jurisdiction of all courts in any dispute arising out of any agreement which was entered into or executed before the commencement of the Constitution by any Ruler of an Indian State to which the Government of India was a party. The operation of the article is not limited to any "parent" Covenant and every agreement whether it is primary or one entered into in pursuance of the provisions of a preceding agreement would fall within the ambit of the article. Thus the fact that the agreement contained in the letter dated the 14th September 1949 had resulted from action taken under the provisions of the Rajasthan Covenant, is no answer to the plea raised on behalf of the respondents that article 363 of the Constitution is a bar to the maintainability of the two suits, although we may add, that agreement did not flow directly from the Rajasthan Covenant but was entered into by ignoring and departing from the provisions of clause (2) of Article XII thereof.12. The only other contention put f orward by Mr. Sharma was based on the contents of column 3 of Item 1 of the inventory appended to the letter dated the 14th September 1949. He drew our attention to the mention in that column of the portions of the adjoining building being occupie d by the State for administrative purposes or for Museum and Imperial Bank and also comprising the Zenana and Mardana Mahals. According to him, this meant that the entire building adjoining the City Palace was held to be the private pro perty of the plaintiff, which finally vested in the plaintiff as from the date of the letter and of which the plaintiff could not be divested by any subsequent decision of the Ministry of States. In this connection, Mr. Sharma urged that the Ministry of States had no power of reviewing a settlement once arrived at and argued that if it was claimed that such a power existed, the determination by a court of the limited question of the power of review would be barred b y the provisions of article 363 of the Constitution. This contention also is of no avail to him. As held above, the agreement dated the 14th September 1949 was not to stand by itself but was to be a part and parcel of an overall agreement embracing all outstanding matters of dispute. It follows that the terms of the agreement contained in the letter were liable to change till a final agreement was reached, and in this view of the matter no finality could be said to attach t o those terms until all the disputes became the subject-matter of an agreed settlement. The terms of the inventory attached to the letter were thus merely tentative, the process of settlement being a continuous one till all the disputes were finally resolved. And the ultimate decision of the Ministry of Home Affairs conveyed in its letter of the 24th of December 1959, not to treat the Secretariat building, Daulat Khana building and Indra Viman Station adjoining the City Palace to be t he private property of the plaintiff, was based upon a mutual agreement between the parties which was reached after discussion in March 1952, as part of an over-all agreement as is evident from the letter of the Ministry of Home Affairs dated the 6th/8th of December 1960.13. | 0[ds]9. It is no doubt true that the plaintiff had furnished the inventory of the properties held by him in accordance with Article XI of the Matsya Covenant as is stated in the opening paragraph of the letter dated the 14th of September 1949. It further cannot bethat the third column of the inventory to that letter was headed "decision of the State Ministry". These two factors, without more, might have gone a long way to support the case propounded on behalf of the plaintiff, but they are sought to be used out of context as is clear from a perusal of the entire letter from which it can be safely spelt out that the"decision" was nothing but an agreement arrived at between the Government of India and the plaintiff. It is pertinent that the letter mentions that the inventory furnished by the plaintiff was discussed with him at New Delhi on the 9th and 10th of April 1949 and then states that a copy of the final inventory of the plaintiffs private properties, which had the approval of the Government of India in the Ministry of States, was forwarded to him. Now, under clause (3) of Article XI of the Matsya Covenant as also clause (2) of Article XII of the Rajasthan Covenant no approval of the Ministry of State s was called for. In fact, what each of those clauses provided was that if any dispute arose as to whether any item of property was the private property of the Ruler concerned or of his erstwhile State, it was to be referred to such person as the Government of India might nominate, and the decision of that person was to be final and binding on all parties concerned. Now, it is not the case of the plaintiff that the Government of India nominated a person to whom the dispute was to be referred; nor is it claimed by him that such a person gave any decision. The contents of the letter, therefore, are not at all relateable to those of either of the two clauses justOn the other hand, they clearly indicate that the"decisions" of the Sates Ministry contained in the inventory appended to the letter formed really the record of the agreement arrived at between the Ministry of States and the plaintiff as a result of negotiations held on the 9th and 10th of Aprilcontention is also without substance. Article 363 of the Constitution bars the jurisdiction of all courts in any dispute arising out of any agreement which was entered into or executed before the commencement of the Constitution by any Ruler of an Indian State to which the Government of India was a party. The operation of the article is not limited to any "parent" Covenant and every agreement whether it is primary or one entered into in pursuance of the provisions of a preceding agreement would fall within the ambit of the article. Thus the fact that the agreement contained in the letter dated the 14th September 1949 had resulted from action taken under the provisions of the Rajasthan Covenant, is no answer to the plea raised on behalf of the respondents that article 363 of the Constitution is a bar to the maintainability of the two suits, although we may add, that agreement did not flow directly from the Rajasthan Covenant but was entered into by ignoring and departing from the provisions of clause (2) of Article XIIcontention also is of no avail to him. As held above, the agreement dated the 14th September 1949 was not to stand by itself but was to be a part and parcel of an overall agreement embracing all outstanding matters of dispute. It follows that the terms of the agreement contained in the letter were liable to change till a final agreement was reached, and in this view of the matter no finality could be said to attach t o those terms until all the disputes became theof an agreed settlement. The terms of the inventory attached to the letter were thus merely tentative, the process of settlement being a continuous one till all the disputes were finally resolved. And the ultimate decision of the Ministry of Home Affairs conveyed in its letter of the 24th of December 1959, not to treat the Secretariat building, Daulat Khana building and Indra Viman Station adjoining the City Palace to be t he private property of the plaintiff, was based upon a mutual agreement between the parties which was reached after discussion in March 1952, as part of anagreement as is evident from the letter of the Ministry of Home Affairs dated the 6th/8th of December 1960.13. In view of the conclusions arrived at above, we hold that the "decision" sought to be enforced by the plaintiff is an agreement hit by article 363 of the Constitution and that the High Court was right in dismissing suit No. 5 of 1963 as being not maintainable. | 0 | 4,759 | 892 | ### Instruction:
Assess the case to predict the court's ruling (favorably (1) or unfavorably (0)), and then expound on this prediction by highlighting and analyzing key textual elements from the proceeding.
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given after that date under clause 3 of Article XI of the Matsya Covenant and that the only surviving provision und er which disputes regarding property owned by the plaintiff could be determined after the 15th of May 1949, was Article XII of the Rajasthan Covenant. It is true that the expression "new Covenanting State" as defined in clause (c) of Article I of tha t Covenant meant only any of the four States of Bikaner, Jaipur, Jaisalmer and Jodhpur, that the definition was not amended by any provision of the Amending Agreement, so that the State of Alwar could not be regarded as a "new Covenanting Sta t. " for the purpose of clause (3) of Article XII of the Rajasthan Covenant and that the clause of that Article in accordance with which disputes relating to property claimed by tho Ruler of Alwar as his private property were to be determi ned was clause (2) which provided for their decision by a person nominated by the Government of India in that behalf. The fact remains, however, that no such person was ever nominated and that the letter dated the 14th September, 1949, cannot be con strued (for reasons already stated by us) as laying down a decision of any such person. What appears to have happened is that instead of following the course indicated in clause (2) last mentioned and having the disputes referred for decision to a person nominated by the Government of India, the parties (the Government of India and the appellant) decided to adopt the method of mutual agreement to settle those disputes-a method which always remained open to them, notwithstanding the Matsya Covenant and the Rajasthan Covenant. Such mutual agreement could, by no stretch of imagination be regarded as a decision by a person nominated by the Government of India either under clause (3) of Article XI of the Matsya Covenant or clause (2) of Article XII of the Rajasthan Covenant and must be deemed to be nothing more or less than an agreement simpliciter even though it was labelled as a "decision of the States Ministry" in the inventory appended to the letter dated the 14th September, 1949.11. Another contention raised by Mr. Sharma was that even if the letter dated the 14th September, 1949 was held to evidence an agreement, it was not hit by the provisions of article 363 of the Constitution inasmuch as it was an agreement resulting from the Rajasthan Covenant which alone according to him, was the agreement covered by the article. This contention is also without substance. Article 363 of the Constitution bars the jurisdiction of all courts in any dispute arising out of any agreement which was entered into or executed before the commencement of the Constitution by any Ruler of an Indian State to which the Government of India was a party. The operation of the article is not limited to any "parent" Covenant and every agreement whether it is primary or one entered into in pursuance of the provisions of a preceding agreement would fall within the ambit of the article. Thus the fact that the agreement contained in the letter dated the 14th September 1949 had resulted from action taken under the provisions of the Rajasthan Covenant, is no answer to the plea raised on behalf of the respondents that article 363 of the Constitution is a bar to the maintainability of the two suits, although we may add, that agreement did not flow directly from the Rajasthan Covenant but was entered into by ignoring and departing from the provisions of clause (2) of Article XII thereof.12. The only other contention put f orward by Mr. Sharma was based on the contents of column 3 of Item 1 of the inventory appended to the letter dated the 14th September 1949. He drew our attention to the mention in that column of the portions of the adjoining building being occupie d by the State for administrative purposes or for Museum and Imperial Bank and also comprising the Zenana and Mardana Mahals. According to him, this meant that the entire building adjoining the City Palace was held to be the private pro perty of the plaintiff, which finally vested in the plaintiff as from the date of the letter and of which the plaintiff could not be divested by any subsequent decision of the Ministry of States. In this connection, Mr. Sharma urged that the Ministry of States had no power of reviewing a settlement once arrived at and argued that if it was claimed that such a power existed, the determination by a court of the limited question of the power of review would be barred b y the provisions of article 363 of the Constitution. This contention also is of no avail to him. As held above, the agreement dated the 14th September 1949 was not to stand by itself but was to be a part and parcel of an overall agreement embracing all outstanding matters of dispute. It follows that the terms of the agreement contained in the letter were liable to change till a final agreement was reached, and in this view of the matter no finality could be said to attach t o those terms until all the disputes became the subject-matter of an agreed settlement. The terms of the inventory attached to the letter were thus merely tentative, the process of settlement being a continuous one till all the disputes were finally resolved. And the ultimate decision of the Ministry of Home Affairs conveyed in its letter of the 24th of December 1959, not to treat the Secretariat building, Daulat Khana building and Indra Viman Station adjoining the City Palace to be t he private property of the plaintiff, was based upon a mutual agreement between the parties which was reached after discussion in March 1952, as part of an over-all agreement as is evident from the letter of the Ministry of Home Affairs dated the 6th/8th of December 1960.13.
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9. It is no doubt true that the plaintiff had furnished the inventory of the properties held by him in accordance with Article XI of the Matsya Covenant as is stated in the opening paragraph of the letter dated the 14th of September 1949. It further cannot bethat the third column of the inventory to that letter was headed "decision of the State Ministry". These two factors, without more, might have gone a long way to support the case propounded on behalf of the plaintiff, but they are sought to be used out of context as is clear from a perusal of the entire letter from which it can be safely spelt out that the"decision" was nothing but an agreement arrived at between the Government of India and the plaintiff. It is pertinent that the letter mentions that the inventory furnished by the plaintiff was discussed with him at New Delhi on the 9th and 10th of April 1949 and then states that a copy of the final inventory of the plaintiffs private properties, which had the approval of the Government of India in the Ministry of States, was forwarded to him. Now, under clause (3) of Article XI of the Matsya Covenant as also clause (2) of Article XII of the Rajasthan Covenant no approval of the Ministry of State s was called for. In fact, what each of those clauses provided was that if any dispute arose as to whether any item of property was the private property of the Ruler concerned or of his erstwhile State, it was to be referred to such person as the Government of India might nominate, and the decision of that person was to be final and binding on all parties concerned. Now, it is not the case of the plaintiff that the Government of India nominated a person to whom the dispute was to be referred; nor is it claimed by him that such a person gave any decision. The contents of the letter, therefore, are not at all relateable to those of either of the two clauses justOn the other hand, they clearly indicate that the"decisions" of the Sates Ministry contained in the inventory appended to the letter formed really the record of the agreement arrived at between the Ministry of States and the plaintiff as a result of negotiations held on the 9th and 10th of Aprilcontention is also without substance. Article 363 of the Constitution bars the jurisdiction of all courts in any dispute arising out of any agreement which was entered into or executed before the commencement of the Constitution by any Ruler of an Indian State to which the Government of India was a party. The operation of the article is not limited to any "parent" Covenant and every agreement whether it is primary or one entered into in pursuance of the provisions of a preceding agreement would fall within the ambit of the article. Thus the fact that the agreement contained in the letter dated the 14th September 1949 had resulted from action taken under the provisions of the Rajasthan Covenant, is no answer to the plea raised on behalf of the respondents that article 363 of the Constitution is a bar to the maintainability of the two suits, although we may add, that agreement did not flow directly from the Rajasthan Covenant but was entered into by ignoring and departing from the provisions of clause (2) of Article XIIcontention also is of no avail to him. As held above, the agreement dated the 14th September 1949 was not to stand by itself but was to be a part and parcel of an overall agreement embracing all outstanding matters of dispute. It follows that the terms of the agreement contained in the letter were liable to change till a final agreement was reached, and in this view of the matter no finality could be said to attach t o those terms until all the disputes became theof an agreed settlement. The terms of the inventory attached to the letter were thus merely tentative, the process of settlement being a continuous one till all the disputes were finally resolved. And the ultimate decision of the Ministry of Home Affairs conveyed in its letter of the 24th of December 1959, not to treat the Secretariat building, Daulat Khana building and Indra Viman Station adjoining the City Palace to be t he private property of the plaintiff, was based upon a mutual agreement between the parties which was reached after discussion in March 1952, as part of anagreement as is evident from the letter of the Ministry of Home Affairs dated the 6th/8th of December 1960.13. In view of the conclusions arrived at above, we hold that the "decision" sought to be enforced by the plaintiff is an agreement hit by article 363 of the Constitution and that the High Court was right in dismissing suit No. 5 of 1963 as being not maintainable.
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RAMA NEGI Vs. UNION OF INDIA & ORS | take the penalty into consideration when it is imposed at a later date because of the pendency of the proceedings, although it is for conduct prior to the date the authority considers the promotion. … 20. On the same aspect, Justice Kuldip Singh, also held for a Division Bench in Jagathigowda C.N. v. Chairman, Cauvery Gramina Bank & Ors. (1996) 9 SCC 677 ,that the totality of the circumstances factor as a pivotal consideration with respect to seniority cum merit, 8. ... It is settled proposition of law that even while making promotions on the basis of seniority-cum-merit the totality of the service record of the officer concerned has to be taken into consideration. The performance appraisal forms are maintained primarily for the purpose that the same are taken into consideration when the person concerned is considered for promotion to the higher rank. ... (emphasis added) For a Division Bench in Haryana State Electronics Development Corporation Limited & Ors. Vs. Seema Sharma & Ors. (2009) 7 SCC 311, Justice A.K. Ganguly also reiterated the distinguishable features for the criterion of seniority cum merit, and the requirement to consider the entirety of the candidates service record, 8. The principle of merit-cum-seniority puts greater emphasis on merit and ability and where promotion is governed by this principle seniority plays a less significant role. However, seniority is to be given weightage when merit and ability more or less are equal among the candidates who are to be promoted. 9. On the other hand, insofar as the principle of seniority-cum-merit is concerned it gives greater importance to seniority and promotion to a senior person cannot be denied unless the person concerned is found totally unfit on merit to discharge the duties of the higher post. The totality of the service of the employee has to be considered for promotion on the basis of seniority-cum-merit (see Jagathigowda, C.N. v. Cauvery Gramina Bank [(1996) 9 SCC 677 : 1996 SCC (L&S) 1310: AIR 1996 SC 2733 ] ). (emphasis added) 21. While rejecting the appellants seniority claim in the feeder cadre by virtue of her higher salary vis-à- vis the respondent no.3, the Division Bench, unfortunately, referred to the incorrect O.M. (dated 10.9.1985), overlooking the applicable O.M. (dated 12.12.1988) of the Ministry of Personnel. In this O.M., as noted earlier, it was clearly stated that the persons in the feeder cadre drawing higher scale will rank senior to those drawing lesser pay scale. Admittedly, the pay scale drawn by the appellant as an Accountant in the feeder cadre was higher than the respondent no.3 and therefore the benefit of O.M. (dated 12.12.1988) would surely accrue to the appellant, in the determination of her inter se seniority. However, the learned Division Bench by adverting to the incorrect O.M., wrongly rejected the contention that the higher pay scale can be the basis for claiming the seniority in the feeder cadre in the circumstances referred to in the O.M. dated 12.12.1988. 22. In the present case, the Cantonment Board in their deliberations made on 11.1.2012 not only considered the appellant to be senior to the respondent no.3 but also considered her to be more deserving for promotion as the best, suitable and fit candidate, for the responsible post. The respondent no.3 was penalized pursuant to the disciplinary proceeding for dereliction of duty and misconduct and he suffered the penalty of recovery of Rs.10,000/- from his salary. Seen in this context, the appellant was more deserving. That apart, the disciplinary action was not challenged by the respondent no.3. He cannot therefore set up a better claim for promotion, to a selection category post. 23. Insofar as the contention of the respondent no.3 that the issue of selection category post was not argued before the High Court, it is necessary to bear in mind that arguments based on the Rules were advanced by all the contesting parties before the High Court. Therefore, the status of the promotion post and the criterion for promotion specified in the Rules, must in our opinion, receive due consideration. 24. As far as the issue of higher pay scale being the basis for seniority in the feeder cadre, the same is clearly provided in the O.M. dated 12.12.1988. The issue received due consideration by the Cantonment Board and was answered in favour of the appellant. But this aspect was held against both the appellant and the Board, due to an inadvertent reference to the wrong Office Memorandum dated 10.09.1985 by the High Court. Having regard to the manner in which the issue was examined and decided by the Board, we deem it appropriate to endorse the Boards declaration of seniority in favour of the appellant, based on the reasoning contained in the Boards Resolution dated 25.3.2013. 25. This Court must also be mindful of the fact that the Cantonment Board applied the criterion of seniority-cum-merit and treated the post to be of the selection category. Moreover, the unblemished service record of the appellant vis-à-vis the pending disciplinary proceedings against the respondent no.3, (eventually resulting in penalty), were taken into account. All these circumstances in our opinion, weigh in favour of the appellant Rama Negi. Her Suitability for the selection post was attributable to two factors i.e. merit of the candidate and the inter-se seniority. Despite the difficulty in encapsulating the parameters for merit, a significant marker can be found in the unblemished record of the employee. A marred service record, though not an insurmountable bar, must carry some consequences, and it could be a comparative disadvantage in promotion for a selection post. The employers preference for a person with a clean service record can be well appreciated. 26. Moreover, the higher pay in the same grade as per the applicable O.M., is a reliable indicator for determining inter-se seniority. In this Courts perception, the decision to prefer the appellant over the respondent no.3 for promotion is in tune with the applicable parameters. As such the contrary opinion by the High Court does not merit our approval. | 1[ds]17. The Rule 5-B (8) read with Annexure E of the Rules makes it clear that the post of Office Superintendent is a selection post and the criterion for promotion is seniority-cum-merit. The parameters for determining promotion based on such criterion are well established by this Court. Justice S.C. Agrawal in B.V. Sivaiah v. K. Addanki Babu (1998) 6 SCC 720, speaking for a three Judges Bench, held that,10. On the other hand, as between the two principles of seniority and merit, the criterion of seniority-cum-merit lays greater emphasis on seniority. In State of Mysore v. Syed Mahmood [AIR 1968 SC 1113 : (1968) 3 SCR 363 : (1970) 1 LLJ 370 ] while considering Rule 4(3)(b) of the Mysore State Civil Services General Recruitment Rules, 1957 which required promotion to be made by selection on the basis of seniority-cum-merit, this Court has observed that the Rule required promotion to be made by selection on the basis of seniority subject to the fitness of the candidate to discharge the duties of the post from among persons eligible for promotion. It was pointed out that where the promotion is based on seniority-cum-merit, the officer cannot claim promotion as a matter of right by virtue of his seniority alone and if he is found unfit to discharge the duties of the higher post, he may be passed over and an officer junior to him may be promoted.11. In State of Kerala v. N.M. Thomas [(1976) 2 SCC 310 : 1976 SCC (L&S) 227] A.N. Ray, C.J. has thus explained the criterion of seniority-cum- merit: (SCC p. 335, para 38)With regard to promotion the normal principles are either merit-cum-seniority or seniority-cum- merit. Seniority-cum-merit means that given the minimum necessary merit requisite for efficiency of administration, the senior though the less meritorious shall have priority.17. ... While applying the principle of seniority- cum-merit for the purpose of promotion, what is required to be considered is the inter se seniority of the employees who are eligible for consideration. Such seniority is normally determined on the basis of length of service, but as between employees appointed on the same date and having the same length of service, it is generally determined on the basis of placement in the select list for appointment. ...18. We thus arrive at the conclusion that the criterion of seniority-cum-merit in the matter of promotion postulates that given the minimum necessary merit requisite for efficiency of administration, the senior, even though less meritorious, shall have priority and a comparative assessment of merit is not required to be made. For assessing the minimum necessary merit, the competent authority can lay down the minimum standard that is required and also prescribe the mode of assessment of merit of the employee who is eligible for consideration for promotion. Such assessment can be made by assigning marks on the basis of appraisal of performance on the basis of service record and interview and prescribing the minimum marks which would entitle a person to be promoted on the basis of seniority-cum-merit.Justice Arijit Pasayat, speaking for a Division Bench in K. Samantaray v. National Insurance Co. Ltd. (2004) 9 SCC 286, noted the following distinction,7. The principles of seniority-cum-merit and merit-cum-seniority are conceptually different. For the former, greater emphasis is laid on seniority, though it is not the determinative factor, while in the latter, merit is the determinative factor.18. The appraisal of the facts before us reveals that the respondent no.3 faced a disciplinary proceeding following the chargesheet issued against him on 28.11.2011. But the High Court questioned the timing of the disciplinary action and observed that the same was issued to deny promotion to the respondent no.3. On this, the inquiry report finding (17.8.2016) is important, which indicates that the Cantonment Board suffered a pecuniary loss of Rs.3,50,000/- due to dereliction of duty by the delinquent. Significantly, the respondent no.3 accepted the charge and the disciplinary authority imposed the penalty of Rs.10,000/- recoverable from his salary.19. It was a selection post and the appellant contrastingly had an unblemished service record all throughout her career. Moreover, she was found to be senior by the Board on 11.1.2012 and for this reason was recommended for promotion, in preference to the respondent no. 3. Adverting to the role of promotion committees, Justice P.B. Sawant, speaking for a three Judges bench in Union of India & Ors. vs. K.V. Jankiraman & Ors. (1991) 4 SCC 109 has emphasized the necessity to consider the entire service record of the candidates in line for promotion,29. …In fact, while considering an employee for promotion his whole record has to be taken into consideration and if a promotion committee takes the penalties imposed upon the employee into consideration and denies him the promotion, such denial is not illegal and unjustified. If, further, the promoting authority can take into consideration the penalty or penalties awarded to an employee in the past while considering his promotion and deny him promotion on that ground, it will be irrational to hold that it cannot take the penalty into consideration when it is imposed at a later date because of the pendency of the proceedings, although it is for conduct prior to the date the authority considers the promotion. …For a Division Bench in Haryana State Electronics Development Corporation Limited & Ors. Vs. Seema Sharma & Ors. (2009) 7 SCC 311, Justice A.K. Ganguly also reiterated the distinguishable features for the criterion of seniority cum merit, and the requirement to consider the entirety of the candidates service record,8. The principle of merit-cum-seniority puts greater emphasis on merit and ability and where promotion is governed by this principle seniority plays a less significant role. However, seniority is to be given weightage when merit and ability more or less are equal among the candidates who are to be promoted.9. On the other hand, insofar as the principle of seniority-cum-merit is concerned it gives greater importance to seniority and promotion to a senior person cannot be denied unless the person concerned is found totally unfit on merit to discharge the duties of the higher post. The totality of the service of the employee has to be considered for promotion on the basis of seniority-cum-merit (see Jagathigowda, C.N. v. Cauvery Gramina Bank [(1996) 9 SCC 677 : 1996 SCC (L&S) 1310: AIR 1996 SC 2733 ] ). (emphasis added)21. While rejecting the appellants seniority claim in the feeder cadre by virtue of her higher salary vis-à- vis the respondent no.3, the Division Bench, unfortunately, referred to the incorrect O.M. (dated 10.9.1985), overlooking the applicable O.M. (dated 12.12.1988) of the Ministry of Personnel. In this O.M., as noted earlier, it was clearly stated that the persons in the feeder cadre drawing higher scale will rank senior to those drawing lesser pay scale. Admittedly, the pay scale drawn by the appellant as an Accountant in the feeder cadre was higher than the respondent no.3 and therefore the benefit of O.M. (dated 12.12.1988) would surely accrue to the appellant, in the determination of her inter se seniority. However, the learned Division Bench by adverting to the incorrect O.M., wrongly rejected the contention that the higher pay scale can be the basis for claiming the seniority in the feeder cadre in the circumstances referred to in the O.M. dated 12.12.1988.22. In the present case, the Cantonment Board in their deliberations made on 11.1.2012 not only considered the appellant to be senior to the respondent no.3 but also considered her to be more deserving for promotion as the best, suitable and fit candidate, for the responsible post. The respondent no.3 was penalized pursuant to the disciplinary proceeding for dereliction of duty and misconduct and he suffered the penalty of recovery of Rs.10,000/- from his salary. Seen in this context, the appellant was more deserving. That apart, the disciplinary action was not challenged by the respondent no.3. He cannot therefore set up a better claim for promotion, to a selection category post.23. Insofar as the contention of the respondent no.3 that the issue of selection category post was not argued before the High Court, it is necessary to bear in mind that arguments based on the Rules were advanced by all the contesting parties before the High Court. Therefore, the status of the promotion post and the criterion for promotion specified in the Rules, must in our opinion, receive due consideration.24. As far as the issue of higher pay scale being the basis for seniority in the feeder cadre, the same is clearly provided in the O.M. dated 12.12.1988. The issue received due consideration by the Cantonment Board and was answered in favour of the appellant. But this aspect was held against both the appellant and the Board, due to an inadvertent reference to the wrong Office Memorandum dated 10.09.1985 by the High Court. Having regard to the manner in which the issue was examined and decided by the Board, we deem it appropriate to endorse the Boards declaration of seniority in favour of the appellant, based on the reasoning contained in the Boards Resolution dated 25.3.2013.25. This Court must also be mindful of the fact that the Cantonment Board applied the criterion of seniority-cum-merit and treated the post to be of the selection category. Moreover, the unblemished service record of the appellant vis-à-vis the pending disciplinary proceedings against the respondent no.3, (eventually resulting in penalty), were taken into account. All these circumstances in our opinion, weigh in favour of the appellant Rama Negi. Her Suitability for the selection post was attributable to two factors i.e. merit of the candidate and the inter-se seniority. Despite the difficulty in encapsulating the parameters for merit, a significant marker can be found in the unblemished record of the employee. A marred service record, though not an insurmountable bar, must carry some consequences, and it could be a comparative disadvantage in promotion for a selection post. The employers preference for a person with a clean service record can be well appreciated.26. Moreover, the higher pay in the same grade as per the applicable O.M., is a reliable indicator for determining inter-se seniority. In this Courts perception, the decision to prefer the appellant over the respondent no.3 for promotion is in tune with the applicable parameters. As such the contrary opinion by the High Court does not merit our approval. | 1 | 4,232 | 1,930 | ### Instruction:
Judge the probable resolution of the case (approval (1) or disapproval (0)), and elaborate on this forecast by extracting and interpreting significant sentences from the proceeding.
### Input:
take the penalty into consideration when it is imposed at a later date because of the pendency of the proceedings, although it is for conduct prior to the date the authority considers the promotion. … 20. On the same aspect, Justice Kuldip Singh, also held for a Division Bench in Jagathigowda C.N. v. Chairman, Cauvery Gramina Bank & Ors. (1996) 9 SCC 677 ,that the totality of the circumstances factor as a pivotal consideration with respect to seniority cum merit, 8. ... It is settled proposition of law that even while making promotions on the basis of seniority-cum-merit the totality of the service record of the officer concerned has to be taken into consideration. The performance appraisal forms are maintained primarily for the purpose that the same are taken into consideration when the person concerned is considered for promotion to the higher rank. ... (emphasis added) For a Division Bench in Haryana State Electronics Development Corporation Limited & Ors. Vs. Seema Sharma & Ors. (2009) 7 SCC 311, Justice A.K. Ganguly also reiterated the distinguishable features for the criterion of seniority cum merit, and the requirement to consider the entirety of the candidates service record, 8. The principle of merit-cum-seniority puts greater emphasis on merit and ability and where promotion is governed by this principle seniority plays a less significant role. However, seniority is to be given weightage when merit and ability more or less are equal among the candidates who are to be promoted. 9. On the other hand, insofar as the principle of seniority-cum-merit is concerned it gives greater importance to seniority and promotion to a senior person cannot be denied unless the person concerned is found totally unfit on merit to discharge the duties of the higher post. The totality of the service of the employee has to be considered for promotion on the basis of seniority-cum-merit (see Jagathigowda, C.N. v. Cauvery Gramina Bank [(1996) 9 SCC 677 : 1996 SCC (L&S) 1310: AIR 1996 SC 2733 ] ). (emphasis added) 21. While rejecting the appellants seniority claim in the feeder cadre by virtue of her higher salary vis-à- vis the respondent no.3, the Division Bench, unfortunately, referred to the incorrect O.M. (dated 10.9.1985), overlooking the applicable O.M. (dated 12.12.1988) of the Ministry of Personnel. In this O.M., as noted earlier, it was clearly stated that the persons in the feeder cadre drawing higher scale will rank senior to those drawing lesser pay scale. Admittedly, the pay scale drawn by the appellant as an Accountant in the feeder cadre was higher than the respondent no.3 and therefore the benefit of O.M. (dated 12.12.1988) would surely accrue to the appellant, in the determination of her inter se seniority. However, the learned Division Bench by adverting to the incorrect O.M., wrongly rejected the contention that the higher pay scale can be the basis for claiming the seniority in the feeder cadre in the circumstances referred to in the O.M. dated 12.12.1988. 22. In the present case, the Cantonment Board in their deliberations made on 11.1.2012 not only considered the appellant to be senior to the respondent no.3 but also considered her to be more deserving for promotion as the best, suitable and fit candidate, for the responsible post. The respondent no.3 was penalized pursuant to the disciplinary proceeding for dereliction of duty and misconduct and he suffered the penalty of recovery of Rs.10,000/- from his salary. Seen in this context, the appellant was more deserving. That apart, the disciplinary action was not challenged by the respondent no.3. He cannot therefore set up a better claim for promotion, to a selection category post. 23. Insofar as the contention of the respondent no.3 that the issue of selection category post was not argued before the High Court, it is necessary to bear in mind that arguments based on the Rules were advanced by all the contesting parties before the High Court. Therefore, the status of the promotion post and the criterion for promotion specified in the Rules, must in our opinion, receive due consideration. 24. As far as the issue of higher pay scale being the basis for seniority in the feeder cadre, the same is clearly provided in the O.M. dated 12.12.1988. The issue received due consideration by the Cantonment Board and was answered in favour of the appellant. But this aspect was held against both the appellant and the Board, due to an inadvertent reference to the wrong Office Memorandum dated 10.09.1985 by the High Court. Having regard to the manner in which the issue was examined and decided by the Board, we deem it appropriate to endorse the Boards declaration of seniority in favour of the appellant, based on the reasoning contained in the Boards Resolution dated 25.3.2013. 25. This Court must also be mindful of the fact that the Cantonment Board applied the criterion of seniority-cum-merit and treated the post to be of the selection category. Moreover, the unblemished service record of the appellant vis-à-vis the pending disciplinary proceedings against the respondent no.3, (eventually resulting in penalty), were taken into account. All these circumstances in our opinion, weigh in favour of the appellant Rama Negi. Her Suitability for the selection post was attributable to two factors i.e. merit of the candidate and the inter-se seniority. Despite the difficulty in encapsulating the parameters for merit, a significant marker can be found in the unblemished record of the employee. A marred service record, though not an insurmountable bar, must carry some consequences, and it could be a comparative disadvantage in promotion for a selection post. The employers preference for a person with a clean service record can be well appreciated. 26. Moreover, the higher pay in the same grade as per the applicable O.M., is a reliable indicator for determining inter-se seniority. In this Courts perception, the decision to prefer the appellant over the respondent no.3 for promotion is in tune with the applicable parameters. As such the contrary opinion by the High Court does not merit our approval.
### Response:
1
### Explanation:
three Judges bench in Union of India & Ors. vs. K.V. Jankiraman & Ors. (1991) 4 SCC 109 has emphasized the necessity to consider the entire service record of the candidates in line for promotion,29. …In fact, while considering an employee for promotion his whole record has to be taken into consideration and if a promotion committee takes the penalties imposed upon the employee into consideration and denies him the promotion, such denial is not illegal and unjustified. If, further, the promoting authority can take into consideration the penalty or penalties awarded to an employee in the past while considering his promotion and deny him promotion on that ground, it will be irrational to hold that it cannot take the penalty into consideration when it is imposed at a later date because of the pendency of the proceedings, although it is for conduct prior to the date the authority considers the promotion. …For a Division Bench in Haryana State Electronics Development Corporation Limited & Ors. Vs. Seema Sharma & Ors. (2009) 7 SCC 311, Justice A.K. Ganguly also reiterated the distinguishable features for the criterion of seniority cum merit, and the requirement to consider the entirety of the candidates service record,8. The principle of merit-cum-seniority puts greater emphasis on merit and ability and where promotion is governed by this principle seniority plays a less significant role. However, seniority is to be given weightage when merit and ability more or less are equal among the candidates who are to be promoted.9. On the other hand, insofar as the principle of seniority-cum-merit is concerned it gives greater importance to seniority and promotion to a senior person cannot be denied unless the person concerned is found totally unfit on merit to discharge the duties of the higher post. The totality of the service of the employee has to be considered for promotion on the basis of seniority-cum-merit (see Jagathigowda, C.N. v. Cauvery Gramina Bank [(1996) 9 SCC 677 : 1996 SCC (L&S) 1310: AIR 1996 SC 2733 ] ). (emphasis added)21. While rejecting the appellants seniority claim in the feeder cadre by virtue of her higher salary vis-à- vis the respondent no.3, the Division Bench, unfortunately, referred to the incorrect O.M. (dated 10.9.1985), overlooking the applicable O.M. (dated 12.12.1988) of the Ministry of Personnel. In this O.M., as noted earlier, it was clearly stated that the persons in the feeder cadre drawing higher scale will rank senior to those drawing lesser pay scale. Admittedly, the pay scale drawn by the appellant as an Accountant in the feeder cadre was higher than the respondent no.3 and therefore the benefit of O.M. (dated 12.12.1988) would surely accrue to the appellant, in the determination of her inter se seniority. However, the learned Division Bench by adverting to the incorrect O.M., wrongly rejected the contention that the higher pay scale can be the basis for claiming the seniority in the feeder cadre in the circumstances referred to in the O.M. dated 12.12.1988.22. In the present case, the Cantonment Board in their deliberations made on 11.1.2012 not only considered the appellant to be senior to the respondent no.3 but also considered her to be more deserving for promotion as the best, suitable and fit candidate, for the responsible post. The respondent no.3 was penalized pursuant to the disciplinary proceeding for dereliction of duty and misconduct and he suffered the penalty of recovery of Rs.10,000/- from his salary. Seen in this context, the appellant was more deserving. That apart, the disciplinary action was not challenged by the respondent no.3. He cannot therefore set up a better claim for promotion, to a selection category post.23. Insofar as the contention of the respondent no.3 that the issue of selection category post was not argued before the High Court, it is necessary to bear in mind that arguments based on the Rules were advanced by all the contesting parties before the High Court. Therefore, the status of the promotion post and the criterion for promotion specified in the Rules, must in our opinion, receive due consideration.24. As far as the issue of higher pay scale being the basis for seniority in the feeder cadre, the same is clearly provided in the O.M. dated 12.12.1988. The issue received due consideration by the Cantonment Board and was answered in favour of the appellant. But this aspect was held against both the appellant and the Board, due to an inadvertent reference to the wrong Office Memorandum dated 10.09.1985 by the High Court. Having regard to the manner in which the issue was examined and decided by the Board, we deem it appropriate to endorse the Boards declaration of seniority in favour of the appellant, based on the reasoning contained in the Boards Resolution dated 25.3.2013.25. This Court must also be mindful of the fact that the Cantonment Board applied the criterion of seniority-cum-merit and treated the post to be of the selection category. Moreover, the unblemished service record of the appellant vis-à-vis the pending disciplinary proceedings against the respondent no.3, (eventually resulting in penalty), were taken into account. All these circumstances in our opinion, weigh in favour of the appellant Rama Negi. Her Suitability for the selection post was attributable to two factors i.e. merit of the candidate and the inter-se seniority. Despite the difficulty in encapsulating the parameters for merit, a significant marker can be found in the unblemished record of the employee. A marred service record, though not an insurmountable bar, must carry some consequences, and it could be a comparative disadvantage in promotion for a selection post. The employers preference for a person with a clean service record can be well appreciated.26. Moreover, the higher pay in the same grade as per the applicable O.M., is a reliable indicator for determining inter-se seniority. In this Courts perception, the decision to prefer the appellant over the respondent no.3 for promotion is in tune with the applicable parameters. As such the contrary opinion by the High Court does not merit our approval.
|
State of Karnataka and Another Vs. Bangalore Soft Drinks Private Limited | as the assessing and the appellate authority having forgotten about dual role of the revision petitioner, one as that of a seller of the goods and the other as that of a carrier of the goods having collected the freight charges separately from the buyer, have fallen into a serious error in including the freight charges to the sales turnover of the assessee, which is patently incorrect in view of the nature of the contract entered into between the parties and in view of the fact that the petitioner had collected the freight charges separately. In fact, the Tribunal has also found on facts that these amounts, i.e., the transportation charges were collected not in the regular invoice, but by raising a separate debit note. If this is so, then the freight charges being collected separately, they do not form part of the sale price and therefore, the question of the freight charges being included in the turnover of the assessee will not arise. Even assuming that the buyer had no option but to transport the goods only through the vehicles belonging to the revision petitioner, that makes no difference because that is a matter between the buyer and the revision petitioner in his capacity as a carrier of the goods and it is nothing to do with his capacity as a seller of the goods. No doubt, it is true that the revision petitioner has charged freight charges uniformly irrespective of the distance. For this the revision petitioner contended that it has charged uniform rate of Rs. 4 per crate with a view to maintain a uniform price of their product throughout their territory of operation and charging of such equalised price is a common trade practice. The petitioner in support of his contention placed reliance on a decision of this Court in the case of Premier Breweries Ltd. v. State of Karnataka reported in. In this decision, this Court has approved the charging of uniform rate of freight charges irrespective of distance of transportation. Therefore, the revision petitioner with a view to see that his products should be available for sale at all places at a uniform price, has charged the freight charges at uniform rate.8A. Here, we have to remember that the price of the goods are not fixed by any statute and the revision petitioner was entitled to consolidate the price irrespective of the freight charges he may have incurred. In this view of the matter, the revision petitioner in order to maintain the uniform price for his goods at all places, might have charged uniform freight charges. Be that as it may, the real test to be applied is whether the goods have passed to buyer at the factory of the assessee or at the place of the buyer. For this, the Tribunal itself has clearly found that the revision petitioner has sold Fanta and Coca-cola at the factory itself and even otherwise, the materials available on record would clearly indicate that the goods have passed to the buyer at the site of the factory and the subsequent transportation of the goods by the revision petitioner was done in his capacity as a transporter of the goods. That being so, the observations made by the Tribunal that it was only on paper and not in reality does not appear to be correct, as the Tribunal as well as the appellate and assessing authority have totally forgotten the fact that the revision petitioner has another role to play which was that of the carrier of the goods to transport the goods for and on behalf of the buyer to the place of the buyer. 9. The facts here would clearly indicate that the revision petitioner in his capacity as a seller delivered the goods at the factory site and in his another capacity as a carrier of the goods, he took delivery of the same for and on behalf of the buyer as his transport agent and he transported the same in the vehicles belonging to him to the place of the buyer for its delivery to the buyer in his capacity as a carrier and not as a seller of the goods. This is the only inference that could be drawn from the facts and circumstances of this case, and having regard to the nature of the contract entered into between the parties. Therefore, the freight charges which were collected separately by the revision petitioner in his capacity as the carrier of the goods cannot be included in the sales turnover of the revision petitioner for the purpose of computation of the sales tax. So, they are liable to be excluded from the turnover of the assessee for computing the sales tax.10. In view of our finding that transport of the goods from the factory to the place of the buyer was done or undertaken by the revision petitioner in his capacity as a transporter or a carrier agent of the buyer and the said transportation having been made for and on behalf of the buyer, it has to be construed that the octroi charges were collected and paid by him in his capacity as a transport agent of the wholesaler, on whose behalf the goods were transported. Therefore, the octroi charges collected and paid by the revision petitioner cannot also be included in the sales turnover of the revision petitioner for computing the tax. They were subsequent to the sale and were paid by the revision petitioner at the octroi gate in his capacity as a carrier of the goods.11. Therefore, for the foregoing reasons, we hold that the freight charges and the octroi charges cannot be included in the sales tax turnover of the assessee for the purpose of computing the sales tax. In this view of the matter, the judgment passed by the Tribunal as well as the appellate and the assessing authority are liable to be set aside and the revision petition filed by the petitioner is liable to be allowed. | 1[ds]10. In view of our finding that transport of the goods from the factory to the place of the buyer was done or undertaken by the revision petitioner in his capacity as a transporter or a carrier agent of the buyer and the said transportation having been made for and on behalf of the buyer, it has to be construed that the octroi charges were collected and paid by him in his capacity as a transport agent of the wholesaler, on whose behalf the goods were transported. Therefore, the octroi charges collected and paid by the revision petitioner cannot also be included in the sales turnover of the revision petitioner for computing the tax. They were subsequent to the sale and were paid by the revision petitioner at the octroi gate in his capacity as a carrier of the goods.11. Therefore, for the foregoing reasons, we hold that the freight charges and the octroi charges cannot be included in the sales tax turnover of the assessee for the purpose of computing the sales tax. In this view of the matter, the judgment passed by the Tribunal as well as the appellate and the assessing authority are liable to be set aside and the revision petition filed by the petitioner is liable to be allowed. | 1 | 2,998 | 232 | ### 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:
as the assessing and the appellate authority having forgotten about dual role of the revision petitioner, one as that of a seller of the goods and the other as that of a carrier of the goods having collected the freight charges separately from the buyer, have fallen into a serious error in including the freight charges to the sales turnover of the assessee, which is patently incorrect in view of the nature of the contract entered into between the parties and in view of the fact that the petitioner had collected the freight charges separately. In fact, the Tribunal has also found on facts that these amounts, i.e., the transportation charges were collected not in the regular invoice, but by raising a separate debit note. If this is so, then the freight charges being collected separately, they do not form part of the sale price and therefore, the question of the freight charges being included in the turnover of the assessee will not arise. Even assuming that the buyer had no option but to transport the goods only through the vehicles belonging to the revision petitioner, that makes no difference because that is a matter between the buyer and the revision petitioner in his capacity as a carrier of the goods and it is nothing to do with his capacity as a seller of the goods. No doubt, it is true that the revision petitioner has charged freight charges uniformly irrespective of the distance. For this the revision petitioner contended that it has charged uniform rate of Rs. 4 per crate with a view to maintain a uniform price of their product throughout their territory of operation and charging of such equalised price is a common trade practice. The petitioner in support of his contention placed reliance on a decision of this Court in the case of Premier Breweries Ltd. v. State of Karnataka reported in. In this decision, this Court has approved the charging of uniform rate of freight charges irrespective of distance of transportation. Therefore, the revision petitioner with a view to see that his products should be available for sale at all places at a uniform price, has charged the freight charges at uniform rate.8A. Here, we have to remember that the price of the goods are not fixed by any statute and the revision petitioner was entitled to consolidate the price irrespective of the freight charges he may have incurred. In this view of the matter, the revision petitioner in order to maintain the uniform price for his goods at all places, might have charged uniform freight charges. Be that as it may, the real test to be applied is whether the goods have passed to buyer at the factory of the assessee or at the place of the buyer. For this, the Tribunal itself has clearly found that the revision petitioner has sold Fanta and Coca-cola at the factory itself and even otherwise, the materials available on record would clearly indicate that the goods have passed to the buyer at the site of the factory and the subsequent transportation of the goods by the revision petitioner was done in his capacity as a transporter of the goods. That being so, the observations made by the Tribunal that it was only on paper and not in reality does not appear to be correct, as the Tribunal as well as the appellate and assessing authority have totally forgotten the fact that the revision petitioner has another role to play which was that of the carrier of the goods to transport the goods for and on behalf of the buyer to the place of the buyer. 9. The facts here would clearly indicate that the revision petitioner in his capacity as a seller delivered the goods at the factory site and in his another capacity as a carrier of the goods, he took delivery of the same for and on behalf of the buyer as his transport agent and he transported the same in the vehicles belonging to him to the place of the buyer for its delivery to the buyer in his capacity as a carrier and not as a seller of the goods. This is the only inference that could be drawn from the facts and circumstances of this case, and having regard to the nature of the contract entered into between the parties. Therefore, the freight charges which were collected separately by the revision petitioner in his capacity as the carrier of the goods cannot be included in the sales turnover of the revision petitioner for the purpose of computation of the sales tax. So, they are liable to be excluded from the turnover of the assessee for computing the sales tax.10. In view of our finding that transport of the goods from the factory to the place of the buyer was done or undertaken by the revision petitioner in his capacity as a transporter or a carrier agent of the buyer and the said transportation having been made for and on behalf of the buyer, it has to be construed that the octroi charges were collected and paid by him in his capacity as a transport agent of the wholesaler, on whose behalf the goods were transported. Therefore, the octroi charges collected and paid by the revision petitioner cannot also be included in the sales turnover of the revision petitioner for computing the tax. They were subsequent to the sale and were paid by the revision petitioner at the octroi gate in his capacity as a carrier of the goods.11. Therefore, for the foregoing reasons, we hold that the freight charges and the octroi charges cannot be included in the sales tax turnover of the assessee for the purpose of computing the sales tax. In this view of the matter, the judgment passed by the Tribunal as well as the appellate and the assessing authority are liable to be set aside and the revision petition filed by the petitioner is liable to be allowed.
### Response:
1
### Explanation:
10. In view of our finding that transport of the goods from the factory to the place of the buyer was done or undertaken by the revision petitioner in his capacity as a transporter or a carrier agent of the buyer and the said transportation having been made for and on behalf of the buyer, it has to be construed that the octroi charges were collected and paid by him in his capacity as a transport agent of the wholesaler, on whose behalf the goods were transported. Therefore, the octroi charges collected and paid by the revision petitioner cannot also be included in the sales turnover of the revision petitioner for computing the tax. They were subsequent to the sale and were paid by the revision petitioner at the octroi gate in his capacity as a carrier of the goods.11. Therefore, for the foregoing reasons, we hold that the freight charges and the octroi charges cannot be included in the sales tax turnover of the assessee for the purpose of computing the sales tax. In this view of the matter, the judgment passed by the Tribunal as well as the appellate and the assessing authority are liable to be set aside and the revision petition filed by the petitioner is liable to be allowed.
|
Manohar Lal Ganeriwal & Others Vs. Bhuri Bai & Others | 21, Rule 63. The only question that arises for decision in this appeal is whether the suit property is "separate property" within the meaning of Section 3(1) of the Hindu Womens Rights to Property Act, 1937 (to be hereinafter referred to as the Act). 2. The facts as found by the High Court, which are no more in dispute may now be stated. The plaintiffs obtained a decree against defendant No. 5 for possession of the suit properties. When they levied execution of the decree, Defendants 1 to 4 objected to the execution alleging that they were in possession of the suit premises in their own right and that they were not liable to be evicted. That objection was upheld by the execution court. Thereafter the plaintiffs instituted a statutory suit under Order 21, Rule 63, Code of Civil Procedure for a declaration of their title to the suit properties and for possession of the same. The suit was dismissed by the trial court and that decree was affirmed by the 1st appellate court. But the same was reversed by the High Court. 3. The suit property originally belonged to the Hindu joint family consisting of one Bhagwan Das and his son Rameshwar Lall. Rameshwar Lall died sometime in 1933 or 1934, leaving behind him his widow Jaidei, his two daughters, his father and mother. After the death of Rameshwar Lall, Bhagwan Das was the sole surviving coparcener in his family. Bhagwan Das died sometime in 1944 or 1945, leaving behind him his widow Mahadei, his daughter-in-law and two grand-daughters. Mahadei and one Satyanarayan who claimed to be the adopted son of Rameshwar Lall sold the suit property to the plaintiffs in 1952. Thereafter Jaidei and her two daughters sold the same property to the appellants, on January 16, 1960. The appellants have denied the adoption of Satyanarayan and the same has not been satisfactorily proved. But that question is irrelevant for deciding the appeal before us. The only question for decision is whether Jaidei obtained any right in the property under Section 3(1) of the Act. 4. The Act came into force in 1937. Rameshwar Lall died as seen earlier in 1933 or 1934. Section 4 of the Act makes it clear that the Act is not to operate retrospectively. Hence Jaidei cannot claim any right to the suit property through her husband who had died long before the Act came into force. But it is contended that she obtained a share in the property as one of the heirs of Bhagwan Das who died after the Act came into force. For this contention reliance is placed on Section 3(1) of the Act. Now we may read the relevant provisions of the Act. Section 2 lays down : "Notwithstanding any rule of Hindu Law or Custom to the contrary, the provisions of Section 3 shall apply where a Hindu dies intestate." 5. Section 3(1) provides : "(1) When a Hindu governed by the Dayabhag School of Hindu Law dies intestate leaving any property, and when a Hindu governed by any other school of Hindu Law or by customary law dies intestate leaving separate property, his widow, or if there is more than one widow all his widows together, shall, subject to the provisions of sub-section (3) be entitled in respect of property in respect of which he dies intestate to the same share as a son : Provided that the widow of a predeceased son shall inherit in like manner as a son if there is no son surviving of such predeceased son, and shall inherit in like manner as a sons son if there is surviving a son or sons of such predeceased son : Provided further that the same provision shall apply mutatis mutandis to the widow of a predeceased son of a predeceased son." 6. Jaidei can have a share in the property only if the property is held to have been the "separate property" of Bhagwan Das. As seen earlier Bhagwan Das became the sole surviving coparcener in the family after the death of his son Rameshwar Lall; but even then he did not become the absolute owner of the property though his rights in the property were enlarged to a large extent. It is not necessary to spell out the nature of the rights obtained by him after the death of his son Rameshwar Lall. But, suffice it to say that the joint Hindu family continued. It is now well settled that a property obtained by the sole surviving coparcener in a family does not become his "separate property" so long as there is a woman in the family who can bring into existence a new coparcener by adoption. At the time of the death of Bhagwan Das, his widow Mahadei and his daughter-in-law were alive. That being so, the joint family cannot be held to have been disrupted. The learned for the appellants very fairly conceded that if we are unable to hold that the suit property was the separate property of Bhagwan Das at the time of his death, the appeal has to fail. According to him on the death of Rameshwar Lall, the whole property became the separate property of Bhagwan Das. This contention has to be rejected without elaborate examination in view of the decision of Federal Court in Rm. Ar. Ar. Rm. Ar. Ar. Umayal Achi v. Lakshmi Achi and Others, ([1945] 7 FCR L : AIR 1945 FC 25) which decision was quoted with approval by this Court in Angurbala Mullick v. Debabrata Mullick. (1951 SCR 1125 : AIR 1951 SC 293 ). 7. The Federal Court in Umayal Achis case (supra), held that the property held by a person as a sole surviving coparcener of a joint Hindu family is not his "separate property" within the meaning of Section 3(1) of the Act. The distinction between "separate property" and joint family property would be clear if we compare the provisions contained in Section 3(1) and Section 3(2). | 0[ds]4. The Act came into force in 1937. Rameshwar Lall died as seen earlier in 1933 or 1934. Section 4 of the Act makes it clear that the Act is not to operate retrospectively. Hence Jaidei cannot claim any right to the suit property through her husband who had died long before the Act came into force6. Jaidei can have a share in the property only if the property is held to have been the "separate property" of Bhagwan Das. As seen earlier Bhagwan Das became the sole surviving coparcener in the family after the death of his son Rameshwar Lall; but even then he did not become the absolute owner of the property though his rights in the property were enlarged to a large extent. It is not necessary to spell out the nature of the rights obtained by him after the death of his son Rameshwar Lall. But, suffice it to say that the joint Hindu family continued. It is now well settled that a property obtained by the sole surviving coparcener in a family does not become his "separate property" so long as there is a woman in the family who can bring into existence a new coparcener by adoption. At the time of the death of Bhagwan Das, his widow Mahadei and hisw were alive. That being so, the joint family cannot be held to have been disrupted.The learned for the appellants very fairly conceded that if we are unable to hold that the suit property was the separate property of Bhagwan Das at the time of his death, the appeal has to fail. According to him on the death of Rameshwar Lall, the whole property became the separate property of Bhagwan Das.This contention has to be rejected without elaborate examination in view of the decision of Federal Court in Rm. Ar. Ar. Rm. Ar. Ar. Umayal Achi v. Lakshmi Achi and Others, ([1945] 7 FCR L : AIR 1945 FC 25) which decision was quoted with approval by this Court in Angurbala Mullick v. Debabrata Mullick. (1951 SCR 1125 : AIR 1951 SC 293 )7. The Federal Court in Umayal Achis case (supra), held that the property held by a person as a sole surviving coparcener of a joint Hindu family is not his "separate property" within the meaning of Section 3(1) of the Act. The distinction between "separate property" and joint family property would be clear if we compare the provisions contained in Section 3(1) and Section 3(2). | 0 | 1,170 | 475 | ### 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:
21, Rule 63. The only question that arises for decision in this appeal is whether the suit property is "separate property" within the meaning of Section 3(1) of the Hindu Womens Rights to Property Act, 1937 (to be hereinafter referred to as the Act). 2. The facts as found by the High Court, which are no more in dispute may now be stated. The plaintiffs obtained a decree against defendant No. 5 for possession of the suit properties. When they levied execution of the decree, Defendants 1 to 4 objected to the execution alleging that they were in possession of the suit premises in their own right and that they were not liable to be evicted. That objection was upheld by the execution court. Thereafter the plaintiffs instituted a statutory suit under Order 21, Rule 63, Code of Civil Procedure for a declaration of their title to the suit properties and for possession of the same. The suit was dismissed by the trial court and that decree was affirmed by the 1st appellate court. But the same was reversed by the High Court. 3. The suit property originally belonged to the Hindu joint family consisting of one Bhagwan Das and his son Rameshwar Lall. Rameshwar Lall died sometime in 1933 or 1934, leaving behind him his widow Jaidei, his two daughters, his father and mother. After the death of Rameshwar Lall, Bhagwan Das was the sole surviving coparcener in his family. Bhagwan Das died sometime in 1944 or 1945, leaving behind him his widow Mahadei, his daughter-in-law and two grand-daughters. Mahadei and one Satyanarayan who claimed to be the adopted son of Rameshwar Lall sold the suit property to the plaintiffs in 1952. Thereafter Jaidei and her two daughters sold the same property to the appellants, on January 16, 1960. The appellants have denied the adoption of Satyanarayan and the same has not been satisfactorily proved. But that question is irrelevant for deciding the appeal before us. The only question for decision is whether Jaidei obtained any right in the property under Section 3(1) of the Act. 4. The Act came into force in 1937. Rameshwar Lall died as seen earlier in 1933 or 1934. Section 4 of the Act makes it clear that the Act is not to operate retrospectively. Hence Jaidei cannot claim any right to the suit property through her husband who had died long before the Act came into force. But it is contended that she obtained a share in the property as one of the heirs of Bhagwan Das who died after the Act came into force. For this contention reliance is placed on Section 3(1) of the Act. Now we may read the relevant provisions of the Act. Section 2 lays down : "Notwithstanding any rule of Hindu Law or Custom to the contrary, the provisions of Section 3 shall apply where a Hindu dies intestate." 5. Section 3(1) provides : "(1) When a Hindu governed by the Dayabhag School of Hindu Law dies intestate leaving any property, and when a Hindu governed by any other school of Hindu Law or by customary law dies intestate leaving separate property, his widow, or if there is more than one widow all his widows together, shall, subject to the provisions of sub-section (3) be entitled in respect of property in respect of which he dies intestate to the same share as a son : Provided that the widow of a predeceased son shall inherit in like manner as a son if there is no son surviving of such predeceased son, and shall inherit in like manner as a sons son if there is surviving a son or sons of such predeceased son : Provided further that the same provision shall apply mutatis mutandis to the widow of a predeceased son of a predeceased son." 6. Jaidei can have a share in the property only if the property is held to have been the "separate property" of Bhagwan Das. As seen earlier Bhagwan Das became the sole surviving coparcener in the family after the death of his son Rameshwar Lall; but even then he did not become the absolute owner of the property though his rights in the property were enlarged to a large extent. It is not necessary to spell out the nature of the rights obtained by him after the death of his son Rameshwar Lall. But, suffice it to say that the joint Hindu family continued. It is now well settled that a property obtained by the sole surviving coparcener in a family does not become his "separate property" so long as there is a woman in the family who can bring into existence a new coparcener by adoption. At the time of the death of Bhagwan Das, his widow Mahadei and his daughter-in-law were alive. That being so, the joint family cannot be held to have been disrupted. The learned for the appellants very fairly conceded that if we are unable to hold that the suit property was the separate property of Bhagwan Das at the time of his death, the appeal has to fail. According to him on the death of Rameshwar Lall, the whole property became the separate property of Bhagwan Das. This contention has to be rejected without elaborate examination in view of the decision of Federal Court in Rm. Ar. Ar. Rm. Ar. Ar. Umayal Achi v. Lakshmi Achi and Others, ([1945] 7 FCR L : AIR 1945 FC 25) which decision was quoted with approval by this Court in Angurbala Mullick v. Debabrata Mullick. (1951 SCR 1125 : AIR 1951 SC 293 ). 7. The Federal Court in Umayal Achis case (supra), held that the property held by a person as a sole surviving coparcener of a joint Hindu family is not his "separate property" within the meaning of Section 3(1) of the Act. The distinction between "separate property" and joint family property would be clear if we compare the provisions contained in Section 3(1) and Section 3(2).
### Response:
0
### Explanation:
4. The Act came into force in 1937. Rameshwar Lall died as seen earlier in 1933 or 1934. Section 4 of the Act makes it clear that the Act is not to operate retrospectively. Hence Jaidei cannot claim any right to the suit property through her husband who had died long before the Act came into force6. Jaidei can have a share in the property only if the property is held to have been the "separate property" of Bhagwan Das. As seen earlier Bhagwan Das became the sole surviving coparcener in the family after the death of his son Rameshwar Lall; but even then he did not become the absolute owner of the property though his rights in the property were enlarged to a large extent. It is not necessary to spell out the nature of the rights obtained by him after the death of his son Rameshwar Lall. But, suffice it to say that the joint Hindu family continued. It is now well settled that a property obtained by the sole surviving coparcener in a family does not become his "separate property" so long as there is a woman in the family who can bring into existence a new coparcener by adoption. At the time of the death of Bhagwan Das, his widow Mahadei and hisw were alive. That being so, the joint family cannot be held to have been disrupted.The learned for the appellants very fairly conceded that if we are unable to hold that the suit property was the separate property of Bhagwan Das at the time of his death, the appeal has to fail. According to him on the death of Rameshwar Lall, the whole property became the separate property of Bhagwan Das.This contention has to be rejected without elaborate examination in view of the decision of Federal Court in Rm. Ar. Ar. Rm. Ar. Ar. Umayal Achi v. Lakshmi Achi and Others, ([1945] 7 FCR L : AIR 1945 FC 25) which decision was quoted with approval by this Court in Angurbala Mullick v. Debabrata Mullick. (1951 SCR 1125 : AIR 1951 SC 293 )7. The Federal Court in Umayal Achis case (supra), held that the property held by a person as a sole surviving coparcener of a joint Hindu family is not his "separate property" within the meaning of Section 3(1) of the Act. The distinction between "separate property" and joint family property would be clear if we compare the provisions contained in Section 3(1) and Section 3(2).
|
Paradip Port Trust, Paradip Vs. Their Workmen | represent their cases before the Tribunal. It is submitted that since such injustice or hardship cannot be intended by law the final word with regard to representation by legal practitioners before the Tribunal should rest with the Tribunal and this will be effectively implemented if the word "and" in section 36(4) is read as "or". This, it is said, will also achieve the object of the Act in having a fair adjudication of disputes.11. We have given anxious consideration to the above submission. It is true that "and" in a particular context and in view of the object an d purpose of a particular legislation may be read as "or" to give effect to the intent of the Legislature. However, having regard to the history of the present legislation, recognition by law of the unequal strength of the parties in adjudication proceedings before a Tribunal, intention of the law being to discourage representation by legal practitioners as such, and the need for expeditious disposal of cases, we are unable to hold that "and" in section 36(4) can be read as "or".Consent of the opposite part is not an idle alternative but a ruling factor in section 36(4). The question of hardship, pointed out by the Solicitor General, is a matter for the legislature to deal with and it is not for the courts to invoke the theory of injustice and other consequences to choose a rather strained interpretation when the language of section 36 is clear and unambiguous.12. Besides, it is also urged by the appellant that under section 30 of the Advocates Act, 1961, every advocate shall be entitled "as of right" to practise in all courts, and before only tribunal section 30(i) and (ii). This right conferred upon the advocates by a later law will be properly safeguarded by reading the word "and" as "or" in section 36(4), says counsel. We do not fail to see some difference in language in section 30(ii) from the provision in section 14(1) (b) of the Indian Bar Councils Act, 1926, relating to the right of advocates to appear before courts and tribunals. For example, under section 14(1) (b) of the Bar Councils Act, an advocate shall be entitled as of right to practise save as otherwise provided by or under any other law in any courts (other than High Court) and tribunal. There is, however, no reference to "any other law" in section 30(ii) of the Advocates Act. This need not detain us. We are informed that section 30 has not yet come into force. Even otherwise, we are not to be trammeled by section 30 of the Advocates Act for more than one reason. First, the Industrial Disputes Act is a special piece of legislation with the avowed aim of labour welfare and representation before adjudicatory authorities therein has been specifically provided for with a clear object in view. This special Act will prevail over the Advocates Act which is a general piece of legislation with regard to the subject matter of appearance of lawyers before all courts, tribunals and other authorities. The Industrial Disputes Act is concerned with representation by legal practitioners under certain conditions only before the authorities mentioned under the Act. Generalia Specialibus Non Derogant. As Maxwell puts it:"Having already given its attention to the particular subject and provided for it, the legislature is reasonably presumed not to intend to alter that special provision by a subsequent general enactment unless that intention be mainfested in explicit language ...... or there be something in the nature of the general one making it unlikely that an exception was intended as regards the special Act. In the absence of these conditions, the general statute is read as silently excluding from its operation the cases which have been provided for by the special one."(Maxwell on lnterpretati on of Statutes 11th Ed. P. 169.)13. Second, the matter is not to be viewed from the point of view of legal practitioner but from that of the employer and workmen who are the principal contestants in an industrial dispute. It is only when a party engages a legal practitioner as such that the latter is enabled to enter appearance before courts or tribunals. Here, under the Act, the restriction is upon a party as such and the occasion to consider the right of the legal practitioner may not arise.14. In the appeal before us we find that the Tribunal, after considering the materials produced before it, held that Shri T. Misra could not claim to be an officer of the corporation simply because he was a legal consultant of the Trust. The Tribunal came to this conclusion after examining the terms and conditions governing the relationship of Shri Misra with the Trust. He was neither in pay of the company nor under its control and enjoyed freedom as any other legal practitioner to accept cases from other parties. It is significant to note that one of the conditions of Shri Misras retainer is that "he will not appear in any suit or appeal against the Port until he has ascertained from the Chairman that his services on behalf of the Port will not be required." That is to say, although on a retainer and with fixed fees for appearance in eases there is no absolute ban to appear even against the Port. This condition is not at all consistent with the position of an officer of the Trust. We agree with the opinion of the Tribunal that Shri Misra cannot be held to be an officer of the Trust. A lawyer, simpliciter, cannot appear before an Industrial Tribunal without the consent of the opposite party and leave of the Tribunal merely by virtue of a power of attorney executed by a party. A lawyer can appear before the Tribunal in the capacity of an office bearer of a registered trade union or an officer of associations of employers and no consent of the other side and leave of the Tribunal will, then, be necessary.15. | 0[ds]We do not fail to see some difference in language in section 30(ii) from the provision in section 14(1) (b) ofthe Indian Bar Councils Act, 1926, relating to the right of advocates to appear before courts and tribunals. For example, under section 14(1) (b) of the Bar Councils Act, an advocate shall be entitled as of right to practise save as otherwise provided by or under any other law in any courts (other than High Court) and tribunal. There is, however, no reference to "any other law" in section 30(ii) of the Advocates Act. This need not detain us. We are informed that section 30 has not yet come into force. Even otherwise, we are not to be trammeled by section 30 of the Advocates Act for more than one reason. First, the Industrial Disputes Act is a special piece of legislation with the avowed aim of labour welfare and representation before adjudicatory authorities therein has been specifically provided for with a clear object in view. This special Act will prevail over the Advocates Act which is a general piece of legislation with regard to the subject matter of appearance of lawyers before all courts, tribunals and otherthe matter is not to be viewed from the point of view of legal practitioner but from that of the employer and workmen who are the principal contestants in an industrial dispute. It is only when a party engages a legal practitioner as such that the latter is enabled to enter appearance before courts or tribunals. Here, under the Act, the restriction is upon a party as such and the occasion to consider the right of the legal practitioner may notthe appeal before us we find that the Tribunal, after considering the materials produced before it, held that Shri T. Misra could not claim to be an officer of the corporation simply because he was a legal consultant of the Trust. The Tribunal came to this conclusion after examining the terms and conditions governing the relationship of Shri Misra with the Trust. He was neither in pay of the company nor under its control and enjoyed freedom as any other legal practitioner to accept cases from other parties. It is significant to note that one of the conditions of Shri Misras retainer is that "he will not appear in any suit or appeal against the Port until he has ascertained from the Chairman that his services on behalf of the Port will not be required." That is to say, although on a retainer and with fixed fees for appearance in eases there is no absolute ban to appear even against the Port. This condition is not at all consistent with the position of an officer of the Trust. We agree with the opinion of the Tribunal that Shri Misra cannot be held to be an officer of the Trust. A lawyer, simpliciter, cannot appear before an Industrial Tribunal without the consent of the opposite party and leave of the Tribunal merely by virtue of a power of attorney executed by a party. A lawyer can appear before the Tribunal in the capacity of an office bearer of a registered trade union or an officer of associations of employers and no consent of the other side and leave of the Tribunal will, then, be necessary. | 0 | 5,632 | 615 | ### 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:
represent their cases before the Tribunal. It is submitted that since such injustice or hardship cannot be intended by law the final word with regard to representation by legal practitioners before the Tribunal should rest with the Tribunal and this will be effectively implemented if the word "and" in section 36(4) is read as "or". This, it is said, will also achieve the object of the Act in having a fair adjudication of disputes.11. We have given anxious consideration to the above submission. It is true that "and" in a particular context and in view of the object an d purpose of a particular legislation may be read as "or" to give effect to the intent of the Legislature. However, having regard to the history of the present legislation, recognition by law of the unequal strength of the parties in adjudication proceedings before a Tribunal, intention of the law being to discourage representation by legal practitioners as such, and the need for expeditious disposal of cases, we are unable to hold that "and" in section 36(4) can be read as "or".Consent of the opposite part is not an idle alternative but a ruling factor in section 36(4). The question of hardship, pointed out by the Solicitor General, is a matter for the legislature to deal with and it is not for the courts to invoke the theory of injustice and other consequences to choose a rather strained interpretation when the language of section 36 is clear and unambiguous.12. Besides, it is also urged by the appellant that under section 30 of the Advocates Act, 1961, every advocate shall be entitled "as of right" to practise in all courts, and before only tribunal section 30(i) and (ii). This right conferred upon the advocates by a later law will be properly safeguarded by reading the word "and" as "or" in section 36(4), says counsel. We do not fail to see some difference in language in section 30(ii) from the provision in section 14(1) (b) of the Indian Bar Councils Act, 1926, relating to the right of advocates to appear before courts and tribunals. For example, under section 14(1) (b) of the Bar Councils Act, an advocate shall be entitled as of right to practise save as otherwise provided by or under any other law in any courts (other than High Court) and tribunal. There is, however, no reference to "any other law" in section 30(ii) of the Advocates Act. This need not detain us. We are informed that section 30 has not yet come into force. Even otherwise, we are not to be trammeled by section 30 of the Advocates Act for more than one reason. First, the Industrial Disputes Act is a special piece of legislation with the avowed aim of labour welfare and representation before adjudicatory authorities therein has been specifically provided for with a clear object in view. This special Act will prevail over the Advocates Act which is a general piece of legislation with regard to the subject matter of appearance of lawyers before all courts, tribunals and other authorities. The Industrial Disputes Act is concerned with representation by legal practitioners under certain conditions only before the authorities mentioned under the Act. Generalia Specialibus Non Derogant. As Maxwell puts it:"Having already given its attention to the particular subject and provided for it, the legislature is reasonably presumed not to intend to alter that special provision by a subsequent general enactment unless that intention be mainfested in explicit language ...... or there be something in the nature of the general one making it unlikely that an exception was intended as regards the special Act. In the absence of these conditions, the general statute is read as silently excluding from its operation the cases which have been provided for by the special one."(Maxwell on lnterpretati on of Statutes 11th Ed. P. 169.)13. Second, the matter is not to be viewed from the point of view of legal practitioner but from that of the employer and workmen who are the principal contestants in an industrial dispute. It is only when a party engages a legal practitioner as such that the latter is enabled to enter appearance before courts or tribunals. Here, under the Act, the restriction is upon a party as such and the occasion to consider the right of the legal practitioner may not arise.14. In the appeal before us we find that the Tribunal, after considering the materials produced before it, held that Shri T. Misra could not claim to be an officer of the corporation simply because he was a legal consultant of the Trust. The Tribunal came to this conclusion after examining the terms and conditions governing the relationship of Shri Misra with the Trust. He was neither in pay of the company nor under its control and enjoyed freedom as any other legal practitioner to accept cases from other parties. It is significant to note that one of the conditions of Shri Misras retainer is that "he will not appear in any suit or appeal against the Port until he has ascertained from the Chairman that his services on behalf of the Port will not be required." That is to say, although on a retainer and with fixed fees for appearance in eases there is no absolute ban to appear even against the Port. This condition is not at all consistent with the position of an officer of the Trust. We agree with the opinion of the Tribunal that Shri Misra cannot be held to be an officer of the Trust. A lawyer, simpliciter, cannot appear before an Industrial Tribunal without the consent of the opposite party and leave of the Tribunal merely by virtue of a power of attorney executed by a party. A lawyer can appear before the Tribunal in the capacity of an office bearer of a registered trade union or an officer of associations of employers and no consent of the other side and leave of the Tribunal will, then, be necessary.15.
### Response:
0
### Explanation:
We do not fail to see some difference in language in section 30(ii) from the provision in section 14(1) (b) ofthe Indian Bar Councils Act, 1926, relating to the right of advocates to appear before courts and tribunals. For example, under section 14(1) (b) of the Bar Councils Act, an advocate shall be entitled as of right to practise save as otherwise provided by or under any other law in any courts (other than High Court) and tribunal. There is, however, no reference to "any other law" in section 30(ii) of the Advocates Act. This need not detain us. We are informed that section 30 has not yet come into force. Even otherwise, we are not to be trammeled by section 30 of the Advocates Act for more than one reason. First, the Industrial Disputes Act is a special piece of legislation with the avowed aim of labour welfare and representation before adjudicatory authorities therein has been specifically provided for with a clear object in view. This special Act will prevail over the Advocates Act which is a general piece of legislation with regard to the subject matter of appearance of lawyers before all courts, tribunals and otherthe matter is not to be viewed from the point of view of legal practitioner but from that of the employer and workmen who are the principal contestants in an industrial dispute. It is only when a party engages a legal practitioner as such that the latter is enabled to enter appearance before courts or tribunals. Here, under the Act, the restriction is upon a party as such and the occasion to consider the right of the legal practitioner may notthe appeal before us we find that the Tribunal, after considering the materials produced before it, held that Shri T. Misra could not claim to be an officer of the corporation simply because he was a legal consultant of the Trust. The Tribunal came to this conclusion after examining the terms and conditions governing the relationship of Shri Misra with the Trust. He was neither in pay of the company nor under its control and enjoyed freedom as any other legal practitioner to accept cases from other parties. It is significant to note that one of the conditions of Shri Misras retainer is that "he will not appear in any suit or appeal against the Port until he has ascertained from the Chairman that his services on behalf of the Port will not be required." That is to say, although on a retainer and with fixed fees for appearance in eases there is no absolute ban to appear even against the Port. This condition is not at all consistent with the position of an officer of the Trust. We agree with the opinion of the Tribunal that Shri Misra cannot be held to be an officer of the Trust. A lawyer, simpliciter, cannot appear before an Industrial Tribunal without the consent of the opposite party and leave of the Tribunal merely by virtue of a power of attorney executed by a party. A lawyer can appear before the Tribunal in the capacity of an office bearer of a registered trade union or an officer of associations of employers and no consent of the other side and leave of the Tribunal will, then, be necessary.
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Income Tax Officer Vs. Dharam Narain | 1. Leave granted. By the impugned order, the High Court has quashed the notice dt. 16th Oct., 2006 issued Under Section 143(2) of the Indian (sic-Income)-tax Act, 1961 to the Respondent-Assessee by allowing the writ petition filed by the said Assessee. Aggrieved, the Revenue is in appeal before this Court.2. Admittedly, under the provisions of Section 143(2) of the I.T. Act, 1961 (as then in force) the notice has to be served on the Respondent-Assessee latest by 30th Oct., 2006. In the present case, notice was issued on 16th Oct., 2006 which was dispatched on 18th Oct., 2006 by registered post. The materials on record indicate that on two occasions the notice sent by registered post could not be served on the Respondent-Assessee as he was not available and that it was served on the Authorized Representative of the Respondent-Assessee on 19th Oct., 2006. The question, therefore, that arises in the writ petition was whether in such circumstances the requirement Under Section 143(2) of the I.T. Act, 1961 was met by the Revenue. The High Court answered the question in the negative taking the view that what is required to be satisfied by the Revenue is service of notice and not mere issuance thereof.3. It will not be necessary for us to decide the aforesaid question in the present case which is being kept open for decision in an appropriate case. We have taken the aforesaid view as the present case is capable of being resolved on its own peculiar facts.4. The non-availability of the Respondent-Assessee to receive the notice sent by registered post as many as on two occasions and service of notice on 19th Oct., 2006, on the Authorized Representative of the Respondent-Assessee whom the Respondent-Assessee now disowns, in our considered view, is sufficient to draw an inference of deemed service of notice on the Respondent-Assessee and sufficient compliance of the requirement of Section 143(2) of the I.T. Act, 1961. On the aforesaid view that we have taken we are of the opinion that the High Court was not right in coming to the impugned conclusion in the facts of the instant matter. | 1[ds]3. It will not be necessary for us to decide the aforesaid question in the present case which is being kept open for decision in an appropriate case. We have taken the aforesaid view as the present case is capable of being resolved on its own peculiar facts4. The non-availability of the Respondent-Assessee to receive the notice sent by registered post as many as on two occasions and service of notice on 19th Oct., 2006, on the Authorized Representative of the Respondent-Assessee whom the Respondent-Assessee now disowns, in our considered view, is sufficient to draw an inference of deemed service of notice on the Respondent-Assessee and sufficient compliance of the requirement of Section 143(2) of the I.T. Act, 1961. On the aforesaid view that we have taken we are of the opinion that the High Court was not right in coming to the impugned conclusion in the facts of the instant matter. | 1 | 408 | 170 | ### Instruction:
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1. Leave granted. By the impugned order, the High Court has quashed the notice dt. 16th Oct., 2006 issued Under Section 143(2) of the Indian (sic-Income)-tax Act, 1961 to the Respondent-Assessee by allowing the writ petition filed by the said Assessee. Aggrieved, the Revenue is in appeal before this Court.2. Admittedly, under the provisions of Section 143(2) of the I.T. Act, 1961 (as then in force) the notice has to be served on the Respondent-Assessee latest by 30th Oct., 2006. In the present case, notice was issued on 16th Oct., 2006 which was dispatched on 18th Oct., 2006 by registered post. The materials on record indicate that on two occasions the notice sent by registered post could not be served on the Respondent-Assessee as he was not available and that it was served on the Authorized Representative of the Respondent-Assessee on 19th Oct., 2006. The question, therefore, that arises in the writ petition was whether in such circumstances the requirement Under Section 143(2) of the I.T. Act, 1961 was met by the Revenue. The High Court answered the question in the negative taking the view that what is required to be satisfied by the Revenue is service of notice and not mere issuance thereof.3. It will not be necessary for us to decide the aforesaid question in the present case which is being kept open for decision in an appropriate case. We have taken the aforesaid view as the present case is capable of being resolved on its own peculiar facts.4. The non-availability of the Respondent-Assessee to receive the notice sent by registered post as many as on two occasions and service of notice on 19th Oct., 2006, on the Authorized Representative of the Respondent-Assessee whom the Respondent-Assessee now disowns, in our considered view, is sufficient to draw an inference of deemed service of notice on the Respondent-Assessee and sufficient compliance of the requirement of Section 143(2) of the I.T. Act, 1961. On the aforesaid view that we have taken we are of the opinion that the High Court was not right in coming to the impugned conclusion in the facts of the instant matter.
### Response:
1
### Explanation:
3. It will not be necessary for us to decide the aforesaid question in the present case which is being kept open for decision in an appropriate case. We have taken the aforesaid view as the present case is capable of being resolved on its own peculiar facts4. The non-availability of the Respondent-Assessee to receive the notice sent by registered post as many as on two occasions and service of notice on 19th Oct., 2006, on the Authorized Representative of the Respondent-Assessee whom the Respondent-Assessee now disowns, in our considered view, is sufficient to draw an inference of deemed service of notice on the Respondent-Assessee and sufficient compliance of the requirement of Section 143(2) of the I.T. Act, 1961. On the aforesaid view that we have taken we are of the opinion that the High Court was not right in coming to the impugned conclusion in the facts of the instant matter.
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Sri Navneetheswaraswami Devasthanam Vs. State of Madras | Mathew, J.1. The appellant, Sri Navneetheswaraswami Devasthanam in Tanjore District, Tamil Nadu is a religious trust of a public nature. It filed a writ petition praying for issue of a writ in the nature of certiorari quashing the notification made by the State of Madras in G. O. Ms. 2561-Revenue dated 1-9-1965 published in the Gazette dated 8-9-1965 notifying that the village of Sellur belonging to the appellant came under the provisions of the Madras Inam Estates (Abolition and Conversion into Ryotwari) Act (Act 26 of 1963). The writ petition was originally heard along with a batch of other writ petitions raising similar question. But during the course of the argument of the petitions, as a special contention was sought to be raised by the appellant, the writ petition was separated from the batch and disposed of separately. The special contention raised by the appellant in a supplementary affidavit was that the appellant was in personal cultivation of the lands in question and as Act 26 of 1963 made no provision for compensation in accordance with the second proviso to Article 31-A (1), the notification was bad for that reason alone. The High Court dismissed the writ petition and this appeal, by certificate, is against that order.2. There is no dispute that the appellant was the sole proprietor of the inam village in question and the inam lands were under the direct possession of the appellant. On 12-4-1962 the President gave assent to the Madras Public Trusts (Regulation of Administration of Agricultural Lands) Act (Madras Act .57 of 1961) and that was published in the Gazette on 21-4-19623. By two notifications dated 21-12-l963 and 29-3-1965, the State Government, in the exercise of its power under Section 52 of the Madras Act 57 of 1961, exempted the entire extent of the land from the operation of Section 6 of that Act which provides that where on the date of the commencement of that Act, any public trust personally cultivating land in excess of twenty standard acres and continuing to so cultivate that land on such date as may be specified in the notification issued by the Government in, that behalf, the trustee of the public trust shall, within such period as may be prescribed, from the date specified in such notification, lease out the lands in such excess to a co-operative farming society or the other persons specified therein. The effect of the two notifications was that the appellant was not obliged to lease out any part of the lands covered by the notifications and could personally cultivate the same.4. The contention of the appellant was that since the lands were exempted from the purview of Section 6 of the Madras Act 57 of 1961 by the notifications made under Section 52, the appellant was in personal cultivation and, under the second proviso to Article 31-A (1), unless provision is made for payment of compensation at a rate which shall not be less than the market value of the land, the law relating to the acquisition, namely, the provisions of Act 26 of 1963 cannot be valid.5. The second proviso to Article 31-A (1) states as follows :"Provided further that where any law makes any provision for the acquisition by the State of any estate and where any land comprised therein is held by a person under his personal cultivation, it shall not be lawful for the State to acquire any portion of such land as is within the ceiling limit applicable to him under any law for the time being in force or any building or structure standing thereon or appurtenant thereto, unless the law relating to the acquisition of such land, building, or structure, provides for payment of compensation at a rate which shall not be less than the market value thereof."6. Therefore, the question is whether there was any law in force which prescribed the ceiling limit applicable to the appellant. Section 2 of the Madras Land Reforms (Fixation of Ceiling on Land) Act (Act 58 of 1961) provides :"Subject to the provisions of Sec. B. nothing: contained in this Act shall apply to lands held by religious trusts of a public nature."7. It would follow that the provision of that Act fixing the ceiling on ownership of land was not applicable to the appellant. It was only if the ceiling provision of that Act was applicable to the appellant that the second proviso to Article 31-A (1) would be attracted. So, even if the appellant was in personal cultivation of the land, the second proviso to Article 31-A (1) can have no application.8. Counsel for the appellant submitted that since the law relating to ceiling did not fix any limit to the ownership of land by the appellant, the extent of the land owned by it itself provided the ceiling on its ownership and therefore the provisions of second proviso to Art. 31-A (1) will apply. We are unable to agree. The proviso is clear that unless the law fixing the ceiling limit on the ownership of land is applicable to the appellant, the appellant will not be entitled to the benefit of the proviso.9. We think the High Court was right in its conclusion and | 0[ds]7. It would follow that the provision of that Act fixing the ceiling on ownership of land was not applicable to the appellant. It was only if the ceiling provision of that Act was applicable to the appellant that the second proviso to Article(1) would be attracted. So, even if the appellant was in personal cultivation of the land, the second proviso to Article(1) can have noare unable to agree. The proviso is clear that unless the law fixing the ceiling limit on the ownership of land is applicable to the appellant, the appellant will not be entitled to the benefit of the proviso.9. We think the High Court was right in its conclusion | 0 | 959 | 132 | ### Instruction:
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Mathew, J.1. The appellant, Sri Navneetheswaraswami Devasthanam in Tanjore District, Tamil Nadu is a religious trust of a public nature. It filed a writ petition praying for issue of a writ in the nature of certiorari quashing the notification made by the State of Madras in G. O. Ms. 2561-Revenue dated 1-9-1965 published in the Gazette dated 8-9-1965 notifying that the village of Sellur belonging to the appellant came under the provisions of the Madras Inam Estates (Abolition and Conversion into Ryotwari) Act (Act 26 of 1963). The writ petition was originally heard along with a batch of other writ petitions raising similar question. But during the course of the argument of the petitions, as a special contention was sought to be raised by the appellant, the writ petition was separated from the batch and disposed of separately. The special contention raised by the appellant in a supplementary affidavit was that the appellant was in personal cultivation of the lands in question and as Act 26 of 1963 made no provision for compensation in accordance with the second proviso to Article 31-A (1), the notification was bad for that reason alone. The High Court dismissed the writ petition and this appeal, by certificate, is against that order.2. There is no dispute that the appellant was the sole proprietor of the inam village in question and the inam lands were under the direct possession of the appellant. On 12-4-1962 the President gave assent to the Madras Public Trusts (Regulation of Administration of Agricultural Lands) Act (Madras Act .57 of 1961) and that was published in the Gazette on 21-4-19623. By two notifications dated 21-12-l963 and 29-3-1965, the State Government, in the exercise of its power under Section 52 of the Madras Act 57 of 1961, exempted the entire extent of the land from the operation of Section 6 of that Act which provides that where on the date of the commencement of that Act, any public trust personally cultivating land in excess of twenty standard acres and continuing to so cultivate that land on such date as may be specified in the notification issued by the Government in, that behalf, the trustee of the public trust shall, within such period as may be prescribed, from the date specified in such notification, lease out the lands in such excess to a co-operative farming society or the other persons specified therein. The effect of the two notifications was that the appellant was not obliged to lease out any part of the lands covered by the notifications and could personally cultivate the same.4. The contention of the appellant was that since the lands were exempted from the purview of Section 6 of the Madras Act 57 of 1961 by the notifications made under Section 52, the appellant was in personal cultivation and, under the second proviso to Article 31-A (1), unless provision is made for payment of compensation at a rate which shall not be less than the market value of the land, the law relating to the acquisition, namely, the provisions of Act 26 of 1963 cannot be valid.5. The second proviso to Article 31-A (1) states as follows :"Provided further that where any law makes any provision for the acquisition by the State of any estate and where any land comprised therein is held by a person under his personal cultivation, it shall not be lawful for the State to acquire any portion of such land as is within the ceiling limit applicable to him under any law for the time being in force or any building or structure standing thereon or appurtenant thereto, unless the law relating to the acquisition of such land, building, or structure, provides for payment of compensation at a rate which shall not be less than the market value thereof."6. Therefore, the question is whether there was any law in force which prescribed the ceiling limit applicable to the appellant. Section 2 of the Madras Land Reforms (Fixation of Ceiling on Land) Act (Act 58 of 1961) provides :"Subject to the provisions of Sec. B. nothing: contained in this Act shall apply to lands held by religious trusts of a public nature."7. It would follow that the provision of that Act fixing the ceiling on ownership of land was not applicable to the appellant. It was only if the ceiling provision of that Act was applicable to the appellant that the second proviso to Article 31-A (1) would be attracted. So, even if the appellant was in personal cultivation of the land, the second proviso to Article 31-A (1) can have no application.8. Counsel for the appellant submitted that since the law relating to ceiling did not fix any limit to the ownership of land by the appellant, the extent of the land owned by it itself provided the ceiling on its ownership and therefore the provisions of second proviso to Art. 31-A (1) will apply. We are unable to agree. The proviso is clear that unless the law fixing the ceiling limit on the ownership of land is applicable to the appellant, the appellant will not be entitled to the benefit of the proviso.9. We think the High Court was right in its conclusion and
### Response:
0
### Explanation:
7. It would follow that the provision of that Act fixing the ceiling on ownership of land was not applicable to the appellant. It was only if the ceiling provision of that Act was applicable to the appellant that the second proviso to Article(1) would be attracted. So, even if the appellant was in personal cultivation of the land, the second proviso to Article(1) can have noare unable to agree. The proviso is clear that unless the law fixing the ceiling limit on the ownership of land is applicable to the appellant, the appellant will not be entitled to the benefit of the proviso.9. We think the High Court was right in its conclusion
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Hindustan Ciba Geigy Vs. Union of India & Others | goods or service is since qua non for initiation of a proceeding thereunder. 2. One H.D. Murzello made a complaint before the Director General of Investigation and Registration alleging unfair trade practice against the appellant herein as regards an advertisement issued by them which appeared in "The Times of India" dated 16th September, 1986 to the following effect; "Aerocols family background:Aerocols credibility as a wonder wood adhesive stems from 2 facts -* An addition to the Araldite and Aerolite family, it is a product from Hindustan Ciba Geigy";* Already a market leader in UK, it is known for living up to its promise". 3. On the said complaint, the Director General was directed to make a preliminary enquiry. Upon such inquiry, a report was submitted on 15th April, 1987. On the basis of the recommendations made in the said investigation report, a Notice of Enquiry was issued by the Commission on 30th July, 1987 against the appellant herein, the relevant portion thereof is as under: "The respondent abovementioned is engaged in selling adhesive under the trade name Aerocol. It had issued an advertisement that appeared in Times of India dated 16.9.1986, making claim that the product is manufactured by it. It has come to the notice of the Commission that the said product is manufactured by M/s Kiran Industries. The respondent by misrepresenting to the public that the product is manufactured by it while it is manufactured by some other company has caused loss and injury to the consumers and thereby indulged in the unfair trade practice falling within the purview of Section 36A(1)(v) of the Act.The respondent has also claim that its product is the market leader in United Kingdom. It has come to the notice of the Commission that the claim made by the respondent has not been duly substantiated by it. The respondent, by making such tall claim, as has caused loss and injury to the consumer and indulged in the unfair trade practice falling within the meaning of Section 36A(1)(i) of the Act". 4. Pursuant to or in furtherance of the aforementioned Notice of Enquiry, the appellant filed their reply not only controverting the allegations raised therein but also raised preliminary objection as regards maintainability thereof, whereupon the Commission, framed the following issues:- "1) Is the enquiry not legally maintainable?2) Did the respondent indulge in any unfair trade practice as alleged in the N.I.E. and PIR?3) In case Issue No. 2 is decided in the affirmative, is the unfair trade practice prejudicial to the public interest or to the interest of any consumer or consumers generality?4) Relief". 5. The Commission accepted the arguments raised on behalf of the counsel for the Director General and held that the words "thereby causes loss or injury to the consumer" would not mean actual loss or injury. The Commission in aid of its aforementioned finding relied upon the decision of larger Bench in Colgate Palmolive (India) Ltd. vs. M.R.T.P. Commission & Ors. in U.T.P.E. No. 41 of 1984 decided on 19th June, 1991. Section 36A of the Act, as it stood then, reads as under:- "36A. Definition of unfair trade practice - in this Part unless the contest otherwise requires, "unfair trade practice" means a trade practice which, for the purpose of promoting the sale, use or supply of any goods or for the provision of any services, adopts one or more of the following practices and thereby causes loss or injury to the consumers of such goods or services, whether by eliminating or restricting competition or otherwise, namely:-............ ............ .................. ............ .............. ......" 6. A bare perusal of the aforementioned provision would clearly go to show that an unfair trade practice would mean a trade practice which for the purpose of promoting the sale, use or supply of any goods or for the provision of any services, adopts one or more of the practices specified therein adopted and as a result thereof loss or injury has been caused to the consumers of such goods or services, either by eliminating or restricting competition or otherwise. It would furthermore clearly go to show that the two conditions precedent mentioned therein are required to be read conjunctively and not disjunctively.7. Thus, the aforementioned provision in our considered opinion, leaves no manner of doubt that an inquiry can be initiated against the notice not only when it adopts or one or more practices specified therein but also thereby it must cause loss or injury to the consumers.8. Furthermore from a perusal of the notice dated 30.7.1987 itself it would appear that definite allegations were made therein that by reason of the impugned action on the part of the Appellant, the consumers suffered loss or injury.9. The Commission, therefore, in our opinion, committed a manifest error in holding that the actual loss or injury need not be caused to the consumers. This aspect of the matter has been considered by this Court in H.M.M. Ltd. vs. Director General, Menopolies and Restrictive Trade Practices Commission (1998) 6 SCC 485 ), wherein it was held: "For holding a trade practice to be an unfair trade practice, therefore, it must be found that it causes loss or injury to the consumer. Insofar as prizes are concerned there has to be the intention of not providing them as offered or creating the impression that they are being given or are being offered free of charge when in fact they are fully or party covered by the amount charged in the transaction as a whole. The conduct of a lottery for the purpose of promoting the sale, use or supply of a product is an unfair trade practice. It is difficult to see clear sustainable findings on the these aspects in the judgment under appeal". 10. Be it noted that the decision of the larger Bench of the Commission in Colgate Palmolive (India) Ltd., whereupon the Commission relied upon has been reversed by this Court in Civil Appeal Nos. 891 of 1993 etc. by a judgment delivered this date. | 1[ds]6. A bare perusal of the aforementioned provision would clearly go to show that an unfair trade practice would mean a trade practice which for the purpose of promoting the sale, use or supply of any goods or for the provision of any services, adopts one or more of the practices specified therein adopted and as a result thereof loss or injury has been caused to the consumers of such goods or services, either by eliminating or restricting competition or otherwise. It would furthermore clearly go to show that the two conditions precedent mentioned therein are required to be read conjunctively and not disjunctively.7. Thus, the aforementioned provision in our considered opinion, leaves no manner of doubt that an inquiry can be initiated against the notice not only when it adopts or one or more practices specified therein but also thereby it must cause loss or injury to the consumers.8. Furthermore from a perusal of the notice dated 30.7.1987 itself it would appear that definite allegations were made therein that by reason of the impugned action on the part of the Appellant, the consumers suffered loss or injury.9. The Commission, therefore, in our opinion, committed a manifest error in holding that the actual loss or injury need not be caused to the consumers. | 1 | 1,199 | 232 | ### Instruction:
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goods or service is since qua non for initiation of a proceeding thereunder. 2. One H.D. Murzello made a complaint before the Director General of Investigation and Registration alleging unfair trade practice against the appellant herein as regards an advertisement issued by them which appeared in "The Times of India" dated 16th September, 1986 to the following effect; "Aerocols family background:Aerocols credibility as a wonder wood adhesive stems from 2 facts -* An addition to the Araldite and Aerolite family, it is a product from Hindustan Ciba Geigy";* Already a market leader in UK, it is known for living up to its promise". 3. On the said complaint, the Director General was directed to make a preliminary enquiry. Upon such inquiry, a report was submitted on 15th April, 1987. On the basis of the recommendations made in the said investigation report, a Notice of Enquiry was issued by the Commission on 30th July, 1987 against the appellant herein, the relevant portion thereof is as under: "The respondent abovementioned is engaged in selling adhesive under the trade name Aerocol. It had issued an advertisement that appeared in Times of India dated 16.9.1986, making claim that the product is manufactured by it. It has come to the notice of the Commission that the said product is manufactured by M/s Kiran Industries. The respondent by misrepresenting to the public that the product is manufactured by it while it is manufactured by some other company has caused loss and injury to the consumers and thereby indulged in the unfair trade practice falling within the purview of Section 36A(1)(v) of the Act.The respondent has also claim that its product is the market leader in United Kingdom. It has come to the notice of the Commission that the claim made by the respondent has not been duly substantiated by it. The respondent, by making such tall claim, as has caused loss and injury to the consumer and indulged in the unfair trade practice falling within the meaning of Section 36A(1)(i) of the Act". 4. Pursuant to or in furtherance of the aforementioned Notice of Enquiry, the appellant filed their reply not only controverting the allegations raised therein but also raised preliminary objection as regards maintainability thereof, whereupon the Commission, framed the following issues:- "1) Is the enquiry not legally maintainable?2) Did the respondent indulge in any unfair trade practice as alleged in the N.I.E. and PIR?3) In case Issue No. 2 is decided in the affirmative, is the unfair trade practice prejudicial to the public interest or to the interest of any consumer or consumers generality?4) Relief". 5. The Commission accepted the arguments raised on behalf of the counsel for the Director General and held that the words "thereby causes loss or injury to the consumer" would not mean actual loss or injury. The Commission in aid of its aforementioned finding relied upon the decision of larger Bench in Colgate Palmolive (India) Ltd. vs. M.R.T.P. Commission & Ors. in U.T.P.E. No. 41 of 1984 decided on 19th June, 1991. Section 36A of the Act, as it stood then, reads as under:- "36A. Definition of unfair trade practice - in this Part unless the contest otherwise requires, "unfair trade practice" means a trade practice which, for the purpose of promoting the sale, use or supply of any goods or for the provision of any services, adopts one or more of the following practices and thereby causes loss or injury to the consumers of such goods or services, whether by eliminating or restricting competition or otherwise, namely:-............ ............ .................. ............ .............. ......" 6. A bare perusal of the aforementioned provision would clearly go to show that an unfair trade practice would mean a trade practice which for the purpose of promoting the sale, use or supply of any goods or for the provision of any services, adopts one or more of the practices specified therein adopted and as a result thereof loss or injury has been caused to the consumers of such goods or services, either by eliminating or restricting competition or otherwise. It would furthermore clearly go to show that the two conditions precedent mentioned therein are required to be read conjunctively and not disjunctively.7. Thus, the aforementioned provision in our considered opinion, leaves no manner of doubt that an inquiry can be initiated against the notice not only when it adopts or one or more practices specified therein but also thereby it must cause loss or injury to the consumers.8. Furthermore from a perusal of the notice dated 30.7.1987 itself it would appear that definite allegations were made therein that by reason of the impugned action on the part of the Appellant, the consumers suffered loss or injury.9. The Commission, therefore, in our opinion, committed a manifest error in holding that the actual loss or injury need not be caused to the consumers. This aspect of the matter has been considered by this Court in H.M.M. Ltd. vs. Director General, Menopolies and Restrictive Trade Practices Commission (1998) 6 SCC 485 ), wherein it was held: "For holding a trade practice to be an unfair trade practice, therefore, it must be found that it causes loss or injury to the consumer. Insofar as prizes are concerned there has to be the intention of not providing them as offered or creating the impression that they are being given or are being offered free of charge when in fact they are fully or party covered by the amount charged in the transaction as a whole. The conduct of a lottery for the purpose of promoting the sale, use or supply of a product is an unfair trade practice. It is difficult to see clear sustainable findings on the these aspects in the judgment under appeal". 10. Be it noted that the decision of the larger Bench of the Commission in Colgate Palmolive (India) Ltd., whereupon the Commission relied upon has been reversed by this Court in Civil Appeal Nos. 891 of 1993 etc. by a judgment delivered this date.
### Response:
1
### Explanation:
6. A bare perusal of the aforementioned provision would clearly go to show that an unfair trade practice would mean a trade practice which for the purpose of promoting the sale, use or supply of any goods or for the provision of any services, adopts one or more of the practices specified therein adopted and as a result thereof loss or injury has been caused to the consumers of such goods or services, either by eliminating or restricting competition or otherwise. It would furthermore clearly go to show that the two conditions precedent mentioned therein are required to be read conjunctively and not disjunctively.7. Thus, the aforementioned provision in our considered opinion, leaves no manner of doubt that an inquiry can be initiated against the notice not only when it adopts or one or more practices specified therein but also thereby it must cause loss or injury to the consumers.8. Furthermore from a perusal of the notice dated 30.7.1987 itself it would appear that definite allegations were made therein that by reason of the impugned action on the part of the Appellant, the consumers suffered loss or injury.9. The Commission, therefore, in our opinion, committed a manifest error in holding that the actual loss or injury need not be caused to the consumers.
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M/S. B. HIMMATLAL AGRAWAL PARTNER Vs. COMPETITION COMMISSION OF INDIA and Others | without further reference to the Bench. In view of the order aforesaid dated 4 th December, 2017, both the IA No.84/2017 and Competition Appeal (AT) No. 24/2017 stands disposed off for non-compliance of the Appellate Tribunal.?5. A pure legal submission which is advanced by the learned counsel for the appellant is that even if the appellant could not comply with orders dated December 4, 2017 vide which conditional stay was granted directing the appellant to deposit 10% of the penalty amount, the maximum effect thereof was to vacate the stay granted and the Appellate Tribunal was not legally justified in dismissing the appeal itself. This submission of the appellant commends acceptance, having due force and substance in law.6. From the facts narrated above, it is apparent that order of the CCI was challenged by filing appeal under Section 53B of the Act. Along with this appeal, the appellant had also filed application for stay of the operation of the order of the CCI during the pendency of the appeal. Appeal was admitted insofar as stay is concerned, which was granted subject to the condition that the appellant deposits 10% of the amount of penalty imposed by the CCI. It needs to be understood, in this context, that the condition of deposit was attached to the order of stay. In case of non- compliance of the said condition, the consequence would be that stay has ceased to operate as the condition for stay is not fulfilled. However, non-compliance of the conditional order of stay would have no bearing insofar as the main appeal is concerned. Right to appeal is statutorily provided under Section 53B of the Act, which reads as under:?53B. Appeal to Appellate Tribunal. —(1) The Central Government or the State Government or a local authority or enterprise or any person, aggrieved by any direction, decision or order referred to in clause (a) of section 53A may prefer an appeal to the Appellate Tribunal.(2) Every appeal under sub-section (1) shall be filed within a period of sixty days from the date on which a copy of the direction or decision or order made by the Commission is received by the Central Government or the State Government or a local authority or enterprise or any person referred to in that sub-section and it shall be in such form and be accompanied by such fee as may be prescribed: Provided that the Appellate Tribunal may entertain an appeal after the expiry of the said period of sixty days if it is satisfied that there was sufficient cause for not filing it within that period.(3) On receipt of an appeal under sub-section (1), the Appellate Tribunal may, after giving the parties to the appeal, an opportunity of being heard, pass such orders thereon as it thinks fit, confirming, modifying or setting aside the direction, decision or order appealed against.(4) The Appellate Tribunal shall send a copy of every order made by it to the Commission and the parties to the appeal.(5) The appeal filed before the Appellate Tribunal under sub-section (1) shall be dealt with by it as expeditiously as possible and endeavour shall be made by it to dispose of the appeal within six months from the date of receipt of the appeal.?7. The aforesaid provision, thus, confers a right upon any of the aggrieved parties mentioned therein to prefer an appeal to the Appellate Tribunal. This statutory provision does not impose any condition of pre-deposit for entertaining the appeal. Therefore, right to file the appeal and have the said appeal decided on merits, if it is filed within the period of limitation, is conferred by the statute and that cannot be taken away by imposing the condition of deposit of an amount leading to dismissal of the main appeal itself if the said condition is not satisfied. Position would have been different if the provision of appeal itself contained a condition of pre-deposit of certain amount. That is not so. Sub- section (3) of Section 53B specifically cast a duty upon the Appellate Tribunal to pass order on appeal, as it thinks fit i.e. either confirming, modifying or setting aside the direction, decision or order appealed against. It is to be done after giving an opportunity of hearing to the parties to the appeal. It, thus, clearly implies that appeal has to be decided on merits. The Appellate Tribunal, which is the creature of a statute, has to act within the domain prescribed by the law/statutory provision. This provision nowhere stipulates that the Appellate Tribunal can direct the appellant to deposit a certain amount as a condition precedent for hearing the appeal. In fact, that was not even done in the instant case. It is stated at the cost of repetition that the condition of deposit of 10% of the penalty was imposed insofar as stay of penalty order passed by the CCI is concerned. Therefore, at the most, stay could have been vacated. The Appellate Tribunal, thus, had no jurisdiction to dismiss the appeal itself.8. We may mention that the learned counsel appearing for the CCI had referred to the judgment of this Court in the case of Ultra Tech Cement Ltd. v. Competition Commission of India & Ors. ( Civil Appeal No. 4766 - 4767 of 2013 decided on 12 June, 2013). Said judgment has no application to the facts of this case. That was a case where the appellant had challenged the jurisdiction of the Appellate Tribunal to pass conditional order i.e. deposit of 10% of the penalty as a condition for grant of stay. It was argued that the Appellate Tribunal did not have any power to impose such a condition for grant of stay. This challenge was rejected by the Court holding that Appellate Tribunal could pass a conditional stay order. No such issue, that has arisen in the instant appeal, was raised therein, namely, whether the Tribunal could dismiss the appeal itself if the condition attached to the grant of stay is not complied with. | 1[ds]5. A pure legal submission which is advanced by the learned counsel for the appellant is that even if the appellant could not comply with orders dated December 4, 2017 vide which conditional stay was granted directing the appellant to deposit 10% of the penalty amount, the maximum effect thereof was to vacate the stay granted and the Appellate Tribunal was not legally justified in dismissing the appeal itself.This submission of the appellant commends acceptance, having due force and substance in law.The aforesaid provision, thus, confers a right upon any of the aggrieved parties mentioned therein to prefer an appeal to the Appellate Tribunal. This statutory provision does not impose any condition offor entertaining the appeal. Therefore, right to file the appeal and have the said appeal decided on merits, if it is filed within the period of limitation, is conferred by the statute and that cannot be taken away by imposing the condition of deposit of an amount leading to dismissal of the main appeal itself if the said condition is not satisfied. Position would have been different if the provision of appeal itself contained a condition ofof certain amount. That is not so. Subsection (3) of Section 53B specifically cast a duty upon the Appellate Tribunal to pass order on appeal, as it thinks fit i.e. either confirming, modifying or setting aside the direction, decision or order appealed against. It is to be done after giving an opportunity of hearing to the parties to the appeal. It, thus, clearly implies that appeal has to be decided on merits. The Appellate Tribunal, which is the creature of a statute, has to act within the domain prescribed by the law/statutory provision. This provision nowhere stipulates that the Appellate Tribunal can direct the appellant to deposit a certain amount as a condition precedent for hearing the appeal. In fact, that was not even done in the instant case. It is stated at the cost of repetition that the condition of deposit of 10% of the penalty was imposed insofar as stay of penalty order passed by the CCI is concerned. Therefore, at the most, stay could have been vacated. The Appellate Tribunal, thus, had no jurisdiction to dismiss the appeal itself.8. We may mention that the learned counsel appearing for the CCI had referred to the judgment of this Court in the case of Ultra Tech Cement Ltd. v. Competition Commission of India & Ors.. Said judgment has no application to the facts of this case. That was a case where the appellant had challenged the jurisdiction of the Appellate Tribunal to pass conditional order i.e. deposit of 10% of the penalty as a condition for grant of stay. It was argued that the Appellate Tribunal did not have any power to impose such a condition for grant of stay. This challenge was rejected by the Court holding that Appellate Tribunal could pass a conditional stay order. No such issue, that has arisen in the instant appeal, was raised therein, namely, whether the Tribunal could dismiss the appeal itself if the condition attached to the grant of stay is not complied with. | 1 | 1,989 | 578 | ### Instruction:
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without further reference to the Bench. In view of the order aforesaid dated 4 th December, 2017, both the IA No.84/2017 and Competition Appeal (AT) No. 24/2017 stands disposed off for non-compliance of the Appellate Tribunal.?5. A pure legal submission which is advanced by the learned counsel for the appellant is that even if the appellant could not comply with orders dated December 4, 2017 vide which conditional stay was granted directing the appellant to deposit 10% of the penalty amount, the maximum effect thereof was to vacate the stay granted and the Appellate Tribunal was not legally justified in dismissing the appeal itself. This submission of the appellant commends acceptance, having due force and substance in law.6. From the facts narrated above, it is apparent that order of the CCI was challenged by filing appeal under Section 53B of the Act. Along with this appeal, the appellant had also filed application for stay of the operation of the order of the CCI during the pendency of the appeal. Appeal was admitted insofar as stay is concerned, which was granted subject to the condition that the appellant deposits 10% of the amount of penalty imposed by the CCI. It needs to be understood, in this context, that the condition of deposit was attached to the order of stay. In case of non- compliance of the said condition, the consequence would be that stay has ceased to operate as the condition for stay is not fulfilled. However, non-compliance of the conditional order of stay would have no bearing insofar as the main appeal is concerned. Right to appeal is statutorily provided under Section 53B of the Act, which reads as under:?53B. Appeal to Appellate Tribunal. —(1) The Central Government or the State Government or a local authority or enterprise or any person, aggrieved by any direction, decision or order referred to in clause (a) of section 53A may prefer an appeal to the Appellate Tribunal.(2) Every appeal under sub-section (1) shall be filed within a period of sixty days from the date on which a copy of the direction or decision or order made by the Commission is received by the Central Government or the State Government or a local authority or enterprise or any person referred to in that sub-section and it shall be in such form and be accompanied by such fee as may be prescribed: Provided that the Appellate Tribunal may entertain an appeal after the expiry of the said period of sixty days if it is satisfied that there was sufficient cause for not filing it within that period.(3) On receipt of an appeal under sub-section (1), the Appellate Tribunal may, after giving the parties to the appeal, an opportunity of being heard, pass such orders thereon as it thinks fit, confirming, modifying or setting aside the direction, decision or order appealed against.(4) The Appellate Tribunal shall send a copy of every order made by it to the Commission and the parties to the appeal.(5) The appeal filed before the Appellate Tribunal under sub-section (1) shall be dealt with by it as expeditiously as possible and endeavour shall be made by it to dispose of the appeal within six months from the date of receipt of the appeal.?7. The aforesaid provision, thus, confers a right upon any of the aggrieved parties mentioned therein to prefer an appeal to the Appellate Tribunal. This statutory provision does not impose any condition of pre-deposit for entertaining the appeal. Therefore, right to file the appeal and have the said appeal decided on merits, if it is filed within the period of limitation, is conferred by the statute and that cannot be taken away by imposing the condition of deposit of an amount leading to dismissal of the main appeal itself if the said condition is not satisfied. Position would have been different if the provision of appeal itself contained a condition of pre-deposit of certain amount. That is not so. Sub- section (3) of Section 53B specifically cast a duty upon the Appellate Tribunal to pass order on appeal, as it thinks fit i.e. either confirming, modifying or setting aside the direction, decision or order appealed against. It is to be done after giving an opportunity of hearing to the parties to the appeal. It, thus, clearly implies that appeal has to be decided on merits. The Appellate Tribunal, which is the creature of a statute, has to act within the domain prescribed by the law/statutory provision. This provision nowhere stipulates that the Appellate Tribunal can direct the appellant to deposit a certain amount as a condition precedent for hearing the appeal. In fact, that was not even done in the instant case. It is stated at the cost of repetition that the condition of deposit of 10% of the penalty was imposed insofar as stay of penalty order passed by the CCI is concerned. Therefore, at the most, stay could have been vacated. The Appellate Tribunal, thus, had no jurisdiction to dismiss the appeal itself.8. We may mention that the learned counsel appearing for the CCI had referred to the judgment of this Court in the case of Ultra Tech Cement Ltd. v. Competition Commission of India & Ors. ( Civil Appeal No. 4766 - 4767 of 2013 decided on 12 June, 2013). Said judgment has no application to the facts of this case. That was a case where the appellant had challenged the jurisdiction of the Appellate Tribunal to pass conditional order i.e. deposit of 10% of the penalty as a condition for grant of stay. It was argued that the Appellate Tribunal did not have any power to impose such a condition for grant of stay. This challenge was rejected by the Court holding that Appellate Tribunal could pass a conditional stay order. No such issue, that has arisen in the instant appeal, was raised therein, namely, whether the Tribunal could dismiss the appeal itself if the condition attached to the grant of stay is not complied with.
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5. A pure legal submission which is advanced by the learned counsel for the appellant is that even if the appellant could not comply with orders dated December 4, 2017 vide which conditional stay was granted directing the appellant to deposit 10% of the penalty amount, the maximum effect thereof was to vacate the stay granted and the Appellate Tribunal was not legally justified in dismissing the appeal itself.This submission of the appellant commends acceptance, having due force and substance in law.The aforesaid provision, thus, confers a right upon any of the aggrieved parties mentioned therein to prefer an appeal to the Appellate Tribunal. This statutory provision does not impose any condition offor entertaining the appeal. Therefore, right to file the appeal and have the said appeal decided on merits, if it is filed within the period of limitation, is conferred by the statute and that cannot be taken away by imposing the condition of deposit of an amount leading to dismissal of the main appeal itself if the said condition is not satisfied. Position would have been different if the provision of appeal itself contained a condition ofof certain amount. That is not so. Subsection (3) of Section 53B specifically cast a duty upon the Appellate Tribunal to pass order on appeal, as it thinks fit i.e. either confirming, modifying or setting aside the direction, decision or order appealed against. It is to be done after giving an opportunity of hearing to the parties to the appeal. It, thus, clearly implies that appeal has to be decided on merits. The Appellate Tribunal, which is the creature of a statute, has to act within the domain prescribed by the law/statutory provision. This provision nowhere stipulates that the Appellate Tribunal can direct the appellant to deposit a certain amount as a condition precedent for hearing the appeal. In fact, that was not even done in the instant case. It is stated at the cost of repetition that the condition of deposit of 10% of the penalty was imposed insofar as stay of penalty order passed by the CCI is concerned. Therefore, at the most, stay could have been vacated. The Appellate Tribunal, thus, had no jurisdiction to dismiss the appeal itself.8. We may mention that the learned counsel appearing for the CCI had referred to the judgment of this Court in the case of Ultra Tech Cement Ltd. v. Competition Commission of India & Ors.. Said judgment has no application to the facts of this case. That was a case where the appellant had challenged the jurisdiction of the Appellate Tribunal to pass conditional order i.e. deposit of 10% of the penalty as a condition for grant of stay. It was argued that the Appellate Tribunal did not have any power to impose such a condition for grant of stay. This challenge was rejected by the Court holding that Appellate Tribunal could pass a conditional stay order. No such issue, that has arisen in the instant appeal, was raised therein, namely, whether the Tribunal could dismiss the appeal itself if the condition attached to the grant of stay is not complied with.
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Gulf Goans Hotels Co. Ltd. Vs. Union Of India | made by the President or the Governor, as the case may be [Articles 77(2) and 166(2)]. In other words, unless an order is expressed in the name of the President or the Governor and is authenticated in the manner prescribed by the rules, the same cannot be treated as an order on behalf of the Government.” [Para 23]“A noting recorded in the file is merely a noting simpliciter and nothing more. It merely represents expression of opinion by the particular individual. By no stretch of imagination, such noting can be treated as a decision of the Government. Even if the competent authority records its opinion in the file on the merits of the matter under consideration, the same cannot be termed as a decision of the Government unless it is sanctified and acted upon by issuing an order in accordance with Articles 77(1) and (2) or Articles 166(1) and (2). The noting in the file or even a decision gets culminated into an order affecting right of the parties only when it is expressed in the name of the President or the Governor, as the case may be, [pic]and authenticated in the manner provided in Article 77(2) or Article 166(2). A noting or even a decision recorded in the file can always be reviewed/reversed/overruled or overturned and the court cannot take cognizance of the earlier noting or decision for exercise of the power of judicial review.” [Para 24] 18. It is also essential that what is claimed to be a law must be notified or made public in order to bind the citizen. In Harla vs. State of Rajasthan [[AIR 1951 SC 467 ]] while dealing with the vires of the Jaipur Opium Act, which was enacted by a resolution passed by the Council of Ministers, though never published in the Gazette, this Court had observed :- “Natural justice requires that before a law can become operative it must be promulgated or published. It must be broadcast in some recognisable way so that all men may know what it is, or, at the very least, there must be some special role or regulation or customary channel by or through which such knowledge can be acquired with the exercise of due and reasonable diligence. The thought that a decision reached in the secret recesses of a chamber to which the public have no access and to which even their accredited representatives have no access and of which they can normally know nothing, can nevertheless affect their lives, liberty and property by the mere passing of a Resolution without anything more is abhorrent to civilised man.” [Para 10] 19. The Court in Harla vs. State of Rajasthan (supra) noticed the decision in Johnson vs. Sargant & Sons [[(1918) 1 KB 101]] and particularly the following:- “The principle underlying this question has been judicially considered in England. For example, on a somewhat lower plane, it was held in Johnson v. Sargant, (1918) 1 K.B. 101: 87 L.J. K.B. 122 that an order of the Food Controller under the Beans, Peas and Pulse (Requisition) Order 1917, does not become operative until it is made known to the public, and the differences between an Order of that kind and an Act of the British Parliament is stressed. The difference is obvious. Acts of the British Parliament are publicly enacted. The debates are open to the public and the acts are passed by the accredited representatives of the people who in theory can be trusted to see that their constituents know what has been done. They also receive wide publicity in papers and, now, over the wireless. Not so Royal Proclamations and Orders of a Food Controller and so forth. There must therefore be promulgation and publication in their cases. The mode of publication can vary; what is a good method in one country may not necessarily be the best in another. But reasonable publication of some sort there must be.” (Para 11) 20. It will not be necessary to notice the long line of decisions reiterating the aforesaid view. So far as the mode of publication is concerned, it has been consistently held by this Court that such mode must be as prescribed by the statute. In the event the statute does not contain any prescription and even under the subordinate legislation there is silence in the matter, the legislation will take effect only when it is published through the customarily recognized official channel, namely, the official gazette (B.K. Srivastava vs. State of Karnataka) [(1987) 1 SCC 658] . Admittedly, the ‘guidelines’ were not gazetted.21. If the guidelines relied upon by Union of India in the present case fail to satisfy the essential and vital parameters/requirements of law as the trend of the above discussion would go to show, the same cannot be enforced to the prejudice of the appellants as has been done in the present case. For the same reason, the issue raised with regard to the authority of the Union to enforce the guidelines on the coming into force of the provisions of the Environment Protection Act so as to bring into effect the impugned consequences, adverse to the appellants, will not require any consideration.22. An argument had been offered by Shri Parikh, learned counsel appearing for the respondent, Goa Foundation, that while dealing with issues concerning ecology and environment, a strict view of environmental degradation, which Shri Parikh would contend has occurred in the present case, should be adopted having regard to the rights of a large number of citizens to enjoy a pristine and pollution free environment by virtue of Article 21 of the Constitution. We cannot appreciate the above view. Violation of Article 21 on account of alleged environmental violation cannot be subjectively and individually determined when parameters of permissible/impermissible conduct are required to be legislatively or statutorily determined under Sections 3 and 6 of the Environment Protection Act, 1986 which has been so done by bringing into force the Coastal Regulation Zone (CRZ) Notification w.e.f. 19th February, 1991. | 1[ds]In the present case, the exercise of executive power is traceable to Entry 13 and 14 of List I of the Seventh Schedule to the Constitution. The power to give effect to the guidelines and to penalize violators thereof may not have been available at the time when the guidelines became effective. However, with the enactment of the Environment Protection Act, 1986 (hereinafter referred to as ‘thewith effect from 19th November, 1986, sections 3 and 5 empowered the Central Government to pass necessary orders and issue directions which are penal in nature. It is in the exercise of the said power under the Act read with the guidelines referred to above that the orders impugned by the appellants have been passed. Though the Coastal Regulation Zone (CRZ) Notification under the Act was issued on 19th February, 1991 and admittedly is prospective in nature, till such time that the said notification came into force it is the guidelines which held the field being administrative instructions having the effect of law under Article 73 of the Constitution.It may, therefore, be understood that a Govt. policy may acquire theif it conforms to a certain form possessed by other laws in force and encapsulates a mandate and discloses a specific purpose. It is from the aforesaid prescription that the guidelines relied upon by the Union of India in this case, will have to be examined to determine whether the same satisfies the minimum elements of law. The said guidelines are –1. Directives to the State Governments in letter dated 27th November, 1981 of the then Prime Minister;2. Notification dated 22nd July, 1982 of the Governor setting up the Ecological Development Council for Goa, inter alia, for scrutiny of beach construction within 500 meters of HTL;3. Environmental Guidelines for Development of Beaches of July 1983;4. Order dated 11th June, 1986 of Under Secretary, Ministry of Tourism, also addressed to Chief Secretary, Govt. of Goa, constituting anCommittee for considering tourist projects within 500 meters.14. The genesis of thedecision to restrict construction activity within 500 meters of the HTL can be traced to the Stockholm Conference. It isparticipation in the conference that led to the introduction of Articles 48A and 51A(g) in the Constitution and the enactment of several legislations like the Air Act 1981,Forest Conservation Act, 1980, Environment Protection Act, 1986 etc. all of which seek to protect, preserve and safeguard the environment. It may be possible to view the aforesaid guidelines as, aimed at implementation of Articles 21 and 48A of the Constitution and, therefore, outlining a visible purpose. The search for a clear, unambiguous and unequivocal command to regulate the conduct of the citizens in the said guidelines must also be equally fruitful. However, we are unable to find in the said guidelines any expressed or clearly defined dicta. In fact, having read and considered the guidelines, we are left with a reasonable doubt as to whether what has been spelt out therein are not mere suggestions or opinions expressed in the process of a continuing exploration to identify the correct parameters that would effectuate the purpose i.e. safeguarding and protecting the environment (sea beaches) from human exploitation and degradation. The above is particularly significant in view of the fact that the Stockholm Declaration in its core resolutions, merely enunciate very broad propositions and commitments including those concerning the sea beaches as distinguished from specific parameters that could have application, without variation or exception, to all the signatories to the declaration. The Stockholm Conference having nowhere expressed any internationally approved parameters of acceptable distance from the HTL, incorporation of any such feature of international values in the Municipal Laws of the country cannot arise even on the principle enunciated in Gramophone Company of India (supra). The position is best highlighted by noticing in a little detail the objectives sought to be achieved in the Stockholm Conference and the core principles adopted therein so far as they are relevant to the issues inthe present case, the said burden has not been discharged in any manner whatsoever. The decision in Air India Cabin Crew Association vs. Yeshaswinee Merchant [(2003) 6 SCC 277 – para 72], taking a somewhat different view can, perhaps, be explained by the fact that in the said case the impugned directions contained in the Government letter (not expressed in the name of the President) was in exercise of the statutory power under Section 34 of the Air Corporations Act, 1953. In the present case, the impugned guidelines have not been issued under any existing statute.16. Clause (2) of Article 77 also provides for the authentication of orders and instruments in a manner as may be prescribed by the Rules. In this regard, vide S.O. 2297 dated 3rd November, 1958 published in the Gazette of India, the President has issued the Authentication (Orders and Other Instruments) Rules, 1958. The said Rules have been superseded subsequently in 2002. Admittedly, the provisions of the said Rules of 1958 had not been followed in the present case insofar as the promulgation of the guidelines is concerned.17. In the absence of due authentication and promulgation of the guidelines, the contents thereof cannot be treated as an order of the Government and would really represent an expression of opinion. In law, the said guidelines and its binding effect would be no more than what was expressed by this Court in State of Uttaranchal vs. S.K. Vaish [(2011) 8 SCC 670] in the following paragraph of the reportis settled law that all executive actions of the Government of India and the Government of a State are required to be taken in the name of the President or the Governor of the State concerned, as the case may be [Articles 77(1) and 166(1)]. Orders and other instruments made and executed in the name of the President or the Governor of a State, as the case may be, are required to be authenticated in the manner specified in the rules made by the President or the Governor, as the case may be [Articles 77(2) and 166(2)]. In other words, unless an order is expressed in the name of the President or the Governor and is authenticated in the manner prescribed by the rules, the same cannot be treated as an order on behalf of thenoting recorded in the file is merely a noting simpliciter and nothing more. It merely represents expression of opinion by the particular individual. By no stretch of imagination, such noting can be treated as a decision of the Government. Even if the competent authority records its opinion in the file on the merits of the matter under consideration, the same cannot be termed as a decision of the Government unless it is sanctified and acted upon by issuing an order in accordance with Articles 77(1) and (2) or Articles 166(1) and (2). The noting in the file or even a decision gets culminated into an order affecting right of the parties only when it is expressed in the name of the President or the Governor, as the case may be, [pic]and authenticated in the manner provided in Article 77(2) or Article 166(2). A noting or even a decision recorded in the file can always be reviewed/reversed/overruled or overturned and the court cannot take cognizance of the earlier noting or decision for exercise of the power of judicial8. It is also essential that what is claimed to be a law must be notified or made public in order to bind the citizen. In Harla vs. State of Rajasthan [[AIR 1951 SC 467 ]] while dealing with the vires of the Jaipur Opium Act, which was enacted by a resolution passed by the Council of Ministers, though never published in the Gazette, this Court had observedjustice requires that before a law can become operative it must be promulgated or published. It must be broadcast in some recognisable way so that all men may know what it is, or, at the very least, there must be some special role or regulation or customary channel by or through which such knowledge can be acquired with the exercise of due and reasonable diligence. The thought that a decision reached in the secret recesses of a chamber to which the public have no access and to which even their accredited representatives have no access and of which they can normally know nothing, can nevertheless affect their lives, liberty and property by the mere passing of a Resolution without anything more is abhorrent to civilised9. The Court in Harla vs. State of Rajasthan (supra) noticed the decision in Johnson vs. Sargant & Sons [[(1918) 1 KB 101]] and particularly theprinciple underlying this question has been judicially considered in England. For example, on a somewhat lower plane, it was held in Johnson v. Sargant, (1918) 1 K.B. 101: 87 L.J. K.B. 122 that an order of the Food Controller under the Beans, Peas and Pulse (Requisition) Order 1917, does not become operative until it is made known to the public, and the differences between an Order of that kind and an Act of the British Parliament is stressed. The difference is obvious. Acts of the British Parliament are publicly enacted. The debates are open to the public and the acts are passed by the accredited representatives of the people who in theory can be trusted to see that their constituents know what has been done. They also receive wide publicity in papers and, now, over the wireless. Not so Royal Proclamations and Orders of a Food Controller and so forth. There must therefore be promulgation and publication in their cases. The mode of publication can vary; what is a good method in one country may not necessarily be the best in another. But reasonable publication of some sort there must0. It will not be necessary to notice the long line of decisions reiterating the aforesaid view. So far as the mode of publication is concerned, it has been consistently held by this Court that such mode must be as prescribed by the statute. In the event the statute does not contain any prescription and even under the subordinate legislation there is silence in the matter, the legislation will take effect only when it is published through the customarily recognized official channel, namely, the official gazette (B.K. Srivastava vs. State of Karnataka) [(1987) 1 SCC 658] . Admittedly, thewere not gazetted.21. If the guidelines relied upon by Union of India in the present case fail to satisfy the essential and vital parameters/requirements of law as the trend of the above discussion would go to show, the same cannot be enforced to the prejudice of the appellants as has been done in the present case. For the same reason, the issue raised with regard to the authority of the Union to enforce the guidelines on the coming into force of the provisions of the Environment Protection Act so as to bring into effect the impugned consequences, adverse to the appellants, will not require anycannot appreciate the above view. Violation of Article 21 on account of alleged environmental violation cannot be subjectively and individually determined when parameters of permissible/impermissible conduct are required to be legislatively or statutorily determined under Sections 3 and 6 of the Environment Protection Act, 1986 which has been so done by bringing into force the Coastal Regulation Zone (CRZ) Notification w.e.f. 19th February, 1991. | 1 | 5,942 | 2,144 | ### Instruction:
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made by the President or the Governor, as the case may be [Articles 77(2) and 166(2)]. In other words, unless an order is expressed in the name of the President or the Governor and is authenticated in the manner prescribed by the rules, the same cannot be treated as an order on behalf of the Government.” [Para 23]“A noting recorded in the file is merely a noting simpliciter and nothing more. It merely represents expression of opinion by the particular individual. By no stretch of imagination, such noting can be treated as a decision of the Government. Even if the competent authority records its opinion in the file on the merits of the matter under consideration, the same cannot be termed as a decision of the Government unless it is sanctified and acted upon by issuing an order in accordance with Articles 77(1) and (2) or Articles 166(1) and (2). The noting in the file or even a decision gets culminated into an order affecting right of the parties only when it is expressed in the name of the President or the Governor, as the case may be, [pic]and authenticated in the manner provided in Article 77(2) or Article 166(2). A noting or even a decision recorded in the file can always be reviewed/reversed/overruled or overturned and the court cannot take cognizance of the earlier noting or decision for exercise of the power of judicial review.” [Para 24] 18. It is also essential that what is claimed to be a law must be notified or made public in order to bind the citizen. In Harla vs. State of Rajasthan [[AIR 1951 SC 467 ]] while dealing with the vires of the Jaipur Opium Act, which was enacted by a resolution passed by the Council of Ministers, though never published in the Gazette, this Court had observed :- “Natural justice requires that before a law can become operative it must be promulgated or published. It must be broadcast in some recognisable way so that all men may know what it is, or, at the very least, there must be some special role or regulation or customary channel by or through which such knowledge can be acquired with the exercise of due and reasonable diligence. The thought that a decision reached in the secret recesses of a chamber to which the public have no access and to which even their accredited representatives have no access and of which they can normally know nothing, can nevertheless affect their lives, liberty and property by the mere passing of a Resolution without anything more is abhorrent to civilised man.” [Para 10] 19. The Court in Harla vs. State of Rajasthan (supra) noticed the decision in Johnson vs. Sargant & Sons [[(1918) 1 KB 101]] and particularly the following:- “The principle underlying this question has been judicially considered in England. For example, on a somewhat lower plane, it was held in Johnson v. Sargant, (1918) 1 K.B. 101: 87 L.J. K.B. 122 that an order of the Food Controller under the Beans, Peas and Pulse (Requisition) Order 1917, does not become operative until it is made known to the public, and the differences between an Order of that kind and an Act of the British Parliament is stressed. The difference is obvious. Acts of the British Parliament are publicly enacted. The debates are open to the public and the acts are passed by the accredited representatives of the people who in theory can be trusted to see that their constituents know what has been done. They also receive wide publicity in papers and, now, over the wireless. Not so Royal Proclamations and Orders of a Food Controller and so forth. There must therefore be promulgation and publication in their cases. The mode of publication can vary; what is a good method in one country may not necessarily be the best in another. But reasonable publication of some sort there must be.” (Para 11) 20. It will not be necessary to notice the long line of decisions reiterating the aforesaid view. So far as the mode of publication is concerned, it has been consistently held by this Court that such mode must be as prescribed by the statute. In the event the statute does not contain any prescription and even under the subordinate legislation there is silence in the matter, the legislation will take effect only when it is published through the customarily recognized official channel, namely, the official gazette (B.K. Srivastava vs. State of Karnataka) [(1987) 1 SCC 658] . Admittedly, the ‘guidelines’ were not gazetted.21. If the guidelines relied upon by Union of India in the present case fail to satisfy the essential and vital parameters/requirements of law as the trend of the above discussion would go to show, the same cannot be enforced to the prejudice of the appellants as has been done in the present case. For the same reason, the issue raised with regard to the authority of the Union to enforce the guidelines on the coming into force of the provisions of the Environment Protection Act so as to bring into effect the impugned consequences, adverse to the appellants, will not require any consideration.22. An argument had been offered by Shri Parikh, learned counsel appearing for the respondent, Goa Foundation, that while dealing with issues concerning ecology and environment, a strict view of environmental degradation, which Shri Parikh would contend has occurred in the present case, should be adopted having regard to the rights of a large number of citizens to enjoy a pristine and pollution free environment by virtue of Article 21 of the Constitution. We cannot appreciate the above view. Violation of Article 21 on account of alleged environmental violation cannot be subjectively and individually determined when parameters of permissible/impermissible conduct are required to be legislatively or statutorily determined under Sections 3 and 6 of the Environment Protection Act, 1986 which has been so done by bringing into force the Coastal Regulation Zone (CRZ) Notification w.e.f. 19th February, 1991.
### Response:
1
### Explanation:
Court in State of Uttaranchal vs. S.K. Vaish [(2011) 8 SCC 670] in the following paragraph of the reportis settled law that all executive actions of the Government of India and the Government of a State are required to be taken in the name of the President or the Governor of the State concerned, as the case may be [Articles 77(1) and 166(1)]. Orders and other instruments made and executed in the name of the President or the Governor of a State, as the case may be, are required to be authenticated in the manner specified in the rules made by the President or the Governor, as the case may be [Articles 77(2) and 166(2)]. In other words, unless an order is expressed in the name of the President or the Governor and is authenticated in the manner prescribed by the rules, the same cannot be treated as an order on behalf of thenoting recorded in the file is merely a noting simpliciter and nothing more. It merely represents expression of opinion by the particular individual. By no stretch of imagination, such noting can be treated as a decision of the Government. Even if the competent authority records its opinion in the file on the merits of the matter under consideration, the same cannot be termed as a decision of the Government unless it is sanctified and acted upon by issuing an order in accordance with Articles 77(1) and (2) or Articles 166(1) and (2). The noting in the file or even a decision gets culminated into an order affecting right of the parties only when it is expressed in the name of the President or the Governor, as the case may be, [pic]and authenticated in the manner provided in Article 77(2) or Article 166(2). A noting or even a decision recorded in the file can always be reviewed/reversed/overruled or overturned and the court cannot take cognizance of the earlier noting or decision for exercise of the power of judicial8. It is also essential that what is claimed to be a law must be notified or made public in order to bind the citizen. In Harla vs. State of Rajasthan [[AIR 1951 SC 467 ]] while dealing with the vires of the Jaipur Opium Act, which was enacted by a resolution passed by the Council of Ministers, though never published in the Gazette, this Court had observedjustice requires that before a law can become operative it must be promulgated or published. It must be broadcast in some recognisable way so that all men may know what it is, or, at the very least, there must be some special role or regulation or customary channel by or through which such knowledge can be acquired with the exercise of due and reasonable diligence. The thought that a decision reached in the secret recesses of a chamber to which the public have no access and to which even their accredited representatives have no access and of which they can normally know nothing, can nevertheless affect their lives, liberty and property by the mere passing of a Resolution without anything more is abhorrent to civilised9. The Court in Harla vs. State of Rajasthan (supra) noticed the decision in Johnson vs. Sargant & Sons [[(1918) 1 KB 101]] and particularly theprinciple underlying this question has been judicially considered in England. For example, on a somewhat lower plane, it was held in Johnson v. Sargant, (1918) 1 K.B. 101: 87 L.J. K.B. 122 that an order of the Food Controller under the Beans, Peas and Pulse (Requisition) Order 1917, does not become operative until it is made known to the public, and the differences between an Order of that kind and an Act of the British Parliament is stressed. The difference is obvious. Acts of the British Parliament are publicly enacted. The debates are open to the public and the acts are passed by the accredited representatives of the people who in theory can be trusted to see that their constituents know what has been done. They also receive wide publicity in papers and, now, over the wireless. Not so Royal Proclamations and Orders of a Food Controller and so forth. There must therefore be promulgation and publication in their cases. The mode of publication can vary; what is a good method in one country may not necessarily be the best in another. But reasonable publication of some sort there must0. It will not be necessary to notice the long line of decisions reiterating the aforesaid view. So far as the mode of publication is concerned, it has been consistently held by this Court that such mode must be as prescribed by the statute. In the event the statute does not contain any prescription and even under the subordinate legislation there is silence in the matter, the legislation will take effect only when it is published through the customarily recognized official channel, namely, the official gazette (B.K. Srivastava vs. State of Karnataka) [(1987) 1 SCC 658] . Admittedly, thewere not gazetted.21. If the guidelines relied upon by Union of India in the present case fail to satisfy the essential and vital parameters/requirements of law as the trend of the above discussion would go to show, the same cannot be enforced to the prejudice of the appellants as has been done in the present case. For the same reason, the issue raised with regard to the authority of the Union to enforce the guidelines on the coming into force of the provisions of the Environment Protection Act so as to bring into effect the impugned consequences, adverse to the appellants, will not require anycannot appreciate the above view. Violation of Article 21 on account of alleged environmental violation cannot be subjectively and individually determined when parameters of permissible/impermissible conduct are required to be legislatively or statutorily determined under Sections 3 and 6 of the Environment Protection Act, 1986 which has been so done by bringing into force the Coastal Regulation Zone (CRZ) Notification w.e.f. 19th February, 1991.
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Dalhousie Investment Trust Company Limited Vs. Commissioner of Income Tax (Central), Calcutta | accepted on 16th October, 1952, about five months after the sale of the shares. There is no evidence to show that, as a result of this sale, the control in the McLeod and Co. group of companies passed to the Bajoria group, though M/s. C. L. Bajoria and Baijnath Jalan did subsequently join the Directorate of McLeod and Co. Ltd. On these facts, it is not possible to hold that the Tribunal was incorrect in recording its conclusion that the sale of these shares by the assessee was not the result of control of the McLeod and Co Ltd. passing from the hands of Kanoria group to the Bajoria group. In fact, the Kanoria group was holding a majority of 21,046 shares out of 40,000 shares in McLeod and Co. Ltd. even at the time when these shares were sold on 27th May, 1952. The assessee thus having failed to prove the object of the sale of these shares, the inference that the shares were sold with the sole object of earning profit is justified.5. This conclusion is further strengthened by the conduct of the assessee as found by the Tribunal in subsequent years. In the year ended 31st March, 1955, the assessee again purchased a large number of shares of McLeod and Co. Ltd. These purchases were made between 23rd August, l954 and 29th September, 1954. The first purchases were made at a rate of Rs. 150/- per share, and the purchases were continued even in the month of September when the rate rose to nearly Rs. 250/- per share. This purchase of shares of McLeod and Co. Ltd. in the account year 1954-55, when there was a rising market and when the control was no longer with the Kanoria group and having already passed to the Bajoria group, clearly shows that the Tribunal was not wrong in inferring that the purchases of shares of McLeod and Co. Ltd., were not for the purpose of keeping controlling interest in that Company or for investment, but that the shares were being purchased and sold for earning profit, so that the transactions were an adventure in the nature of trade in these shares of McLeod and Co. Ltd.6. In this connection, Mr. A. K. Sen, learned counsel for the appellant, drew our attention to the following view expressed in the remand order :-"We are unable to answer the question referred because the mere fact that an investment company periodically varies its investments does not necessarily mean that the profits resulting from such variation is taxable under the Income-tax Act. Variation of its investments must amount to dealing in investments before such profits can be taxed as income under the Income-tax Act."Reliance was also placed on the observations of this Court in Bengal and Assam Investors Ltd. v. Commissioner of Income-tax, West Bengal, 1966-59 ITR 547 : (AIR 1966 SC 1514 ) which were quoted in the remand order and are as follows :-"It seems to us that, on principle, before dividends on shares can be assessed under Section 10, the assessee, be it an individual or a company or any other entity, must carry on business in respect of shares; that is to say, the assessee must deal in those shares. It is evident that if an individual person invests in shares for the purpose of earning dividend, he is not carrying on a business. The only way he can come under Section 10 is by converting the shares into stock-in-trade, i. e., by carrying on the business of dealing in stocks and shares as did the assessee in Commissioner of Income tax v. Bai Shirinbai K. Kooka, 1962-46 ITR 86 , (AIR 1963 SC 477 )."It was urged that, in this case, the Tribunal has recorded no finding at all that the shares in McLeod and Co. Ltd. which were sold by the assessee were converted by it into stock-in-trade, nor has it been held that the variation of its investments by the assessee amounted to dealings in investments. The facts that we found above show that, so far as the shares of McLeod and Co. Ltd. and the allied companies which were sold by the assessee and the income from which has been taxed as revenue income are concerned, the assessee, in fact, dealt with them as stock-in-trade. It is true that in the account books they were never shown as such, but we have indicated how the evidence and the material in this case lead to the conclusion that the shares were in fact purchased even initially not as investments, but for the purpose of sale at profit and that they were actually sold with the purpose of earning profit, so that the transactions amounted to an adventure in the nature of trade.7. Learned counsel also referred to the decision of this Court in Ram Narain Sons (Pr.) Ltd. v. Commissioner of Income-tax Bombay, 1961-41 ITR 534 : (AIR 1961 SC 1141 ) to urge that the principal consideration in determining whether income from sale of shares is revenue income or capital gain is to find out what was the purpose of purchase of those shares, and, if the purpose was investment, the fact that, in varying the investment, the sale of those shares resulted in a profit will not make that profit revenue income. The principle is perfectly correct, but is not applicable to the case before us on the finding mentioned by us above that even the initial purchase of these shares by the assessee was not for the purpose of investment for earning income from dividends, but was with a view to earn profit by re-sale of those shares.8. In these circumstances, we hold that the High Court was right in arriving at the conclusion that, on the facts and circumstances of the present case, the income derived by the assessee from the sale of its shares and securities in the relevant previous years was revenue receipt and as such taxable under the Income-tax Act. | 0[ds]4. It appears to us that the facts and circumstances in this case can lead to no other conclusion,except that these shares were purchased and sold by the assessee with the motive of earning a profit by such purchases and sales and not with the object of investing its capital in these shares in order to derive income from that investment. It is true that the principal business of the assessee was to invest capital and to derive income from dividends on shares and interest on other investments; but, at the same-time, the object contained in the Memorandum of Association of the assessee Company clearly showed that one of the objects was also to deal in shares, stocks, debentures, etc., by acquiring, holding, selling and transferring them. In the years prior to the assessment year, the case put forward by the assessee that the various acquisitions and sales of shares were in the nature of investments was accepted by the Department, but such a decision given in the earlier years is not binding in the proceedings for assessment during subsequent years. The particular shares now in question, it appears, were purchased between 31st March, 1948 and 3lst March, 1952. The earliest purchases in March, 1948 were at an average price of Rs. 267-13-0 per share. In the next two years ended 3lst March, 1949 and 31st March, 1950 the average purchase price was Rs. 201-8-0 and Rs. 182-10-0, and the last purchase in the year ended 3lst March, 1952 was at the rate of Rs. 128-14-0. On 1st April, 1952, the assessees total holding of shares in McLeod and Co. Ltd. was 6,977 at a total cost of Rs. 14,29,587-4-0 out of the total holding of shares, including shares in other companies, of the value of Rs. 17,58,741-4-0. Thus, on that date, the holdings in McLeod and Co. Ltd., formed the major part of the share holdings of the assessee. It is significant that the shares were purchased during a period when their market price was continuously falling. The earliest purchases in the year ended 31st March, 1948 were at an average price of Rs. 267-13-0, while in the last of these three years ended 31st March, 1952, the average price was Rs. 128-14-0. The largest block of 4,757 shares was purchased in the year ended 31st March, 1950, when the average price was Rs. 182-10-0. The assessment order of the Income-tax Officer also shows that the shares were not only purchased in a rapidly falling market, but in order to make these purchases, the assessee had taken loans amounting to about Rs. 8 lacs at interest varying from 31/2 per cent to 5 per cent. The dividend beings declared was at a very low rate, so that the return on this investment after taking into account the interest paid and super-tax to be paid, came to a very small percentage being less than 1 per cent. This circumstance that the shares were purchased at a time when their prices were falling and the return on investment was not at all substantial while loans had been taken to purchase these shares strongly points to a conclusion that the shares could not have been purchased as an investment to earn income from dividends and that the purchases of these shares were with the object of selling them subsequently at a profit.The shares were, in fact, sold at considerable profit subsequently and that is how the question of charging that profit to tax as revenue receipt has arisen. The explanation sought to be given by the assessee that the shares were, in fact, being held as investment and were sold simply because the control of McLeod and Co. Ltd., went out of the hands of the Directors of the assessee has not been proved, according to the supplementary statement of the case submitted by the Tribunal. In fact, the Tribunal was not satisfied that even the purchasers, viz. the Bajoria group on buying these shares from the assessee acquired a controlling interest in McLeod and Co. Ltd. or in the companies managed by that Co. The object of the sale as given by the assessee has, therefore, remained unproved, whereas the fact that the purchases of the shares were made at a time when they were not expected to give a good return as investment and were actually sold at a very good profit leads to the reverse inference that the purchases and sales of these shares were an adventure in the nature of trade.Even the sequence of events does not bear out the contention of the assessee. Sri C. L. Kanoria first resigned on 17th March, 1952 and he sold his shares while his resignation was still pending for approval by the Government. The sale took place on 27th May, 1952, at a time when the resignation not having received the approval of the Government, the control of McLeod and Co. Ltd. group of companies was still with the Kanoria group. The resignation was accepted on 16th October, 1952, about five months after the sale of the shares. There is no evidence to show that, as a result of this sale, the control in the McLeod and Co. group of companies passed to the Bajoria group, though M/s. C. L. Bajoria and Baijnath Jalan did subsequently join the Directorate of McLeod and Co. Ltd. On these facts, it is not possible to hold that the Tribunal was incorrect in recording its conclusion that the sale of these shares by the assessee was not the result of control of the McLeod and Co Ltd. passing from the hands of Kanoria group to the Bajoria group. In fact, the Kanoria group was holding a majority of 21,046 shares out of 40,000 shares in McLeod and Co. Ltd. even at the time when these shares were sold on 27th May, 1952. The assessee thus having failed to prove the object of the sale of these shares, the inference that the shares were sold with the sole object of earning profit is justified.5. This conclusion is further strengthened by the conduct of the assessee as found by the Tribunal in subsequent years. In the year ended 31st March, 1955, the assessee again purchased a large number of shares of McLeod and Co. Ltd. These purchases were made between 23rd August, l954 and 29th September, 1954. The first purchases were made at a rate of Rs. 150/- per share, and the purchases were continued even in the month of September when the rate rose to nearly Rs. 250/- per share. This purchase of shares of McLeod and Co. Ltd. in the account year 1954-55, when there was a rising market and when the control was no longer with the Kanoria group and having already passed to the Bajoria group, clearly shows that the Tribunal was not wrong in inferring that the purchases of shares of McLeod and Co. Ltd., were not for the purpose of keeping controlling interest in that Company or for investment, but that the shares were being purchased and sold for earning profit, so that the transactions were an adventure in the nature of trade in these shares of McLeod and Co.facts that we found above show that, so far as the shares of McLeod and Co. Ltd. and the allied companies which were sold by the assessee and the income from which has been taxed as revenue income are concerned, the assessee, in fact, dealt with them as stock-in-trade. It is true that in the account books they were never shown as such, but we have indicated how the evidence and the material in this case lead to the conclusion that the shares were in fact purchased even initially not as investments, but for the purpose of sale at profit and that they were actually sold with the purpose of earning profit, so that the transactions amounted to an adventure in the nature ofprinciple is perfectly correct, but is not applicable to the case before us on the finding mentioned by us above that even the initial purchase of these shares by the assessee was not for the purpose of investment for earning income from dividends, but was with a view to earn profit by re-sale of those shares.8. In these circumstances, we hold that the High Court was right in arriving at the conclusion that, on the facts and circumstances of the present case, the income derived by the assessee from the sale of its shares and securities in the relevant previous years was revenue receipt and as such taxable under the Income-tax Act. | 0 | 2,993 | 1,567 | ### 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:
accepted on 16th October, 1952, about five months after the sale of the shares. There is no evidence to show that, as a result of this sale, the control in the McLeod and Co. group of companies passed to the Bajoria group, though M/s. C. L. Bajoria and Baijnath Jalan did subsequently join the Directorate of McLeod and Co. Ltd. On these facts, it is not possible to hold that the Tribunal was incorrect in recording its conclusion that the sale of these shares by the assessee was not the result of control of the McLeod and Co Ltd. passing from the hands of Kanoria group to the Bajoria group. In fact, the Kanoria group was holding a majority of 21,046 shares out of 40,000 shares in McLeod and Co. Ltd. even at the time when these shares were sold on 27th May, 1952. The assessee thus having failed to prove the object of the sale of these shares, the inference that the shares were sold with the sole object of earning profit is justified.5. This conclusion is further strengthened by the conduct of the assessee as found by the Tribunal in subsequent years. In the year ended 31st March, 1955, the assessee again purchased a large number of shares of McLeod and Co. Ltd. These purchases were made between 23rd August, l954 and 29th September, 1954. The first purchases were made at a rate of Rs. 150/- per share, and the purchases were continued even in the month of September when the rate rose to nearly Rs. 250/- per share. This purchase of shares of McLeod and Co. Ltd. in the account year 1954-55, when there was a rising market and when the control was no longer with the Kanoria group and having already passed to the Bajoria group, clearly shows that the Tribunal was not wrong in inferring that the purchases of shares of McLeod and Co. Ltd., were not for the purpose of keeping controlling interest in that Company or for investment, but that the shares were being purchased and sold for earning profit, so that the transactions were an adventure in the nature of trade in these shares of McLeod and Co. Ltd.6. In this connection, Mr. A. K. Sen, learned counsel for the appellant, drew our attention to the following view expressed in the remand order :-"We are unable to answer the question referred because the mere fact that an investment company periodically varies its investments does not necessarily mean that the profits resulting from such variation is taxable under the Income-tax Act. Variation of its investments must amount to dealing in investments before such profits can be taxed as income under the Income-tax Act."Reliance was also placed on the observations of this Court in Bengal and Assam Investors Ltd. v. Commissioner of Income-tax, West Bengal, 1966-59 ITR 547 : (AIR 1966 SC 1514 ) which were quoted in the remand order and are as follows :-"It seems to us that, on principle, before dividends on shares can be assessed under Section 10, the assessee, be it an individual or a company or any other entity, must carry on business in respect of shares; that is to say, the assessee must deal in those shares. It is evident that if an individual person invests in shares for the purpose of earning dividend, he is not carrying on a business. The only way he can come under Section 10 is by converting the shares into stock-in-trade, i. e., by carrying on the business of dealing in stocks and shares as did the assessee in Commissioner of Income tax v. Bai Shirinbai K. Kooka, 1962-46 ITR 86 , (AIR 1963 SC 477 )."It was urged that, in this case, the Tribunal has recorded no finding at all that the shares in McLeod and Co. Ltd. which were sold by the assessee were converted by it into stock-in-trade, nor has it been held that the variation of its investments by the assessee amounted to dealings in investments. The facts that we found above show that, so far as the shares of McLeod and Co. Ltd. and the allied companies which were sold by the assessee and the income from which has been taxed as revenue income are concerned, the assessee, in fact, dealt with them as stock-in-trade. It is true that in the account books they were never shown as such, but we have indicated how the evidence and the material in this case lead to the conclusion that the shares were in fact purchased even initially not as investments, but for the purpose of sale at profit and that they were actually sold with the purpose of earning profit, so that the transactions amounted to an adventure in the nature of trade.7. Learned counsel also referred to the decision of this Court in Ram Narain Sons (Pr.) Ltd. v. Commissioner of Income-tax Bombay, 1961-41 ITR 534 : (AIR 1961 SC 1141 ) to urge that the principal consideration in determining whether income from sale of shares is revenue income or capital gain is to find out what was the purpose of purchase of those shares, and, if the purpose was investment, the fact that, in varying the investment, the sale of those shares resulted in a profit will not make that profit revenue income. The principle is perfectly correct, but is not applicable to the case before us on the finding mentioned by us above that even the initial purchase of these shares by the assessee was not for the purpose of investment for earning income from dividends, but was with a view to earn profit by re-sale of those shares.8. In these circumstances, we hold that the High Court was right in arriving at the conclusion that, on the facts and circumstances of the present case, the income derived by the assessee from the sale of its shares and securities in the relevant previous years was revenue receipt and as such taxable under the Income-tax Act.
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### Explanation:
8 lacs at interest varying from 31/2 per cent to 5 per cent. The dividend beings declared was at a very low rate, so that the return on this investment after taking into account the interest paid and super-tax to be paid, came to a very small percentage being less than 1 per cent. This circumstance that the shares were purchased at a time when their prices were falling and the return on investment was not at all substantial while loans had been taken to purchase these shares strongly points to a conclusion that the shares could not have been purchased as an investment to earn income from dividends and that the purchases of these shares were with the object of selling them subsequently at a profit.The shares were, in fact, sold at considerable profit subsequently and that is how the question of charging that profit to tax as revenue receipt has arisen. The explanation sought to be given by the assessee that the shares were, in fact, being held as investment and were sold simply because the control of McLeod and Co. Ltd., went out of the hands of the Directors of the assessee has not been proved, according to the supplementary statement of the case submitted by the Tribunal. In fact, the Tribunal was not satisfied that even the purchasers, viz. the Bajoria group on buying these shares from the assessee acquired a controlling interest in McLeod and Co. Ltd. or in the companies managed by that Co. The object of the sale as given by the assessee has, therefore, remained unproved, whereas the fact that the purchases of the shares were made at a time when they were not expected to give a good return as investment and were actually sold at a very good profit leads to the reverse inference that the purchases and sales of these shares were an adventure in the nature of trade.Even the sequence of events does not bear out the contention of the assessee. Sri C. L. Kanoria first resigned on 17th March, 1952 and he sold his shares while his resignation was still pending for approval by the Government. The sale took place on 27th May, 1952, at a time when the resignation not having received the approval of the Government, the control of McLeod and Co. Ltd. group of companies was still with the Kanoria group. The resignation was accepted on 16th October, 1952, about five months after the sale of the shares. There is no evidence to show that, as a result of this sale, the control in the McLeod and Co. group of companies passed to the Bajoria group, though M/s. C. L. Bajoria and Baijnath Jalan did subsequently join the Directorate of McLeod and Co. Ltd. On these facts, it is not possible to hold that the Tribunal was incorrect in recording its conclusion that the sale of these shares by the assessee was not the result of control of the McLeod and Co Ltd. passing from the hands of Kanoria group to the Bajoria group. In fact, the Kanoria group was holding a majority of 21,046 shares out of 40,000 shares in McLeod and Co. Ltd. even at the time when these shares were sold on 27th May, 1952. The assessee thus having failed to prove the object of the sale of these shares, the inference that the shares were sold with the sole object of earning profit is justified.5. This conclusion is further strengthened by the conduct of the assessee as found by the Tribunal in subsequent years. In the year ended 31st March, 1955, the assessee again purchased a large number of shares of McLeod and Co. Ltd. These purchases were made between 23rd August, l954 and 29th September, 1954. The first purchases were made at a rate of Rs. 150/- per share, and the purchases were continued even in the month of September when the rate rose to nearly Rs. 250/- per share. This purchase of shares of McLeod and Co. Ltd. in the account year 1954-55, when there was a rising market and when the control was no longer with the Kanoria group and having already passed to the Bajoria group, clearly shows that the Tribunal was not wrong in inferring that the purchases of shares of McLeod and Co. Ltd., were not for the purpose of keeping controlling interest in that Company or for investment, but that the shares were being purchased and sold for earning profit, so that the transactions were an adventure in the nature of trade in these shares of McLeod and Co.facts that we found above show that, so far as the shares of McLeod and Co. Ltd. and the allied companies which were sold by the assessee and the income from which has been taxed as revenue income are concerned, the assessee, in fact, dealt with them as stock-in-trade. It is true that in the account books they were never shown as such, but we have indicated how the evidence and the material in this case lead to the conclusion that the shares were in fact purchased even initially not as investments, but for the purpose of sale at profit and that they were actually sold with the purpose of earning profit, so that the transactions amounted to an adventure in the nature ofprinciple is perfectly correct, but is not applicable to the case before us on the finding mentioned by us above that even the initial purchase of these shares by the assessee was not for the purpose of investment for earning income from dividends, but was with a view to earn profit by re-sale of those shares.8. In these circumstances, we hold that the High Court was right in arriving at the conclusion that, on the facts and circumstances of the present case, the income derived by the assessee from the sale of its shares and securities in the relevant previous years was revenue receipt and as such taxable under the Income-tax Act.
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ADJUDICATING OFFICER SECURITIES AND EXCHANGE BOARD OF INDIA Vs. BHAVESH PABARI | Shree Radhe Vs. The Adjudicating Officer, SEBI)C.A. No. 9799 of 2014 (Hemant Sheth Vs. The Adjudicating Officer, SEBI) 15. These appeals arise from a common order dated 10 th September, 2013 passed by the Securities Appellate Tribunal, Mumbai, ( “Appellate Tribunal” for short), on appeals preferred by Mr. Bhavesh Pabari, M/s Shree Radhe, and Mr. Hemant Sheth impugning three separate orders all dated 30 th December, 2011 passed by the Adjudicating Officer under Section 15¬I of the SEBI Act.16. Impugned order passed by the Appellate Tribunal confirms penalty of Rs.20,00,000 (Rupees twenty lakhs only) each as imposed on the appellants by the Adjudicating Officer under Section 15-HA of the Act for violation of Regulation Nos.4(2)(a), (b) and (g) of the SEBI (Prohibition of Fraudulent and Unfair Trade Practices relating to Securities Market) Regulations, 2003 ( “PFUTP Regulations” for short). 17. Factual findings, as observed by the Adjudicating Officer and accepted by the Appellate Tribunal as un¬ controvertible, are mentioned below: (i) Bhavesh Pabari in his name and as sole proprietor of M/s. Shree Radhe, Hemant Sheth and one Neeraj Sanghvi had indulged in synchronized/structured and reversed trade in the scrips of M/s. Gulshan Polyols Ltd. (erstwhile Gulshan Sugar and Chemicals Ltd.) ( “GPL” for short) from 10 th April, 2006 to 8 th September, 2006.(ii) Connection/complicity between Bhavesh Pabari/M/s. Shree Radhe, Hemant Sheth and one Neeraj Sanghvi was established and was not disputed. Hemant Sheth and Bhavesh Pabari/M/s. Shree Radhe had a common introducer in the “Know Your Customer” documentation.(iii) Scrips of GPL opened at Rs.44.75 on 12 th January, 2006, touched a peak high of Rs.103.40 on 30 th August, 2006 and closed at Rs. 31.70 on 29 th December, 2006. The share price of the scrips during the period 1 st December, 2005 to 11 January, 2006 was in the range of Rs.31.50 to Rs. 49.90 with an average daily volume of 8,255 shares.(iv) The three appellants along with Neeraj Sanghvi, during the period 10th April, 2006 to 8 th September, 2006 had traded with each other in 18,48,081 shares of the GPL which had accounted for around 16.29% of the total traded volume in this period.(v) About 45% of the total shares, i.e., 8,34,453 shares were executed via structured orders, i.e., buy and sell orders which were placed within a gap of one minute. Out of this, trade in 5,97,835 shares (32% of the total shares traded) were through synchronized orders as the rate and quantity of the buy and sell order were identical.(vi) On 64 trading dates between 10 th April, 2006 to 8 th September, 2006, a reverse trading pattern was espied in 15,18,204 shares, which had accounted for 13.38% of the total market value and was more than 20% of the market volume in the aforesaid period.(vii) On 24 days between the period from 10 April, 2006 to 8 th September, 2006, the quantity traded in the GPL scrips between the connected persons was more than 50% of the market volume.(viii) On 1 st August, 2006, the connected transactions were 83.79% of the market volume.(ix) Bhavesh Pabari had indulged in self trade in 60,203 GPL shares (5.1% of the total traded quantity from 18 th April, 2006 to 25 th August, 2006).(x) Bhavesh Pabari had executed reversal trades with M/s. Shree Radhe and Hemant Sheth for 7,73,810 shares during the period 18 th April, 2006 to 25 th August, 2006 which was 66% of the total traded quantity.(xi) Bhavesh Pabari had entered into 96 buy trades in 1,22,324 shares which were found to be synchronized by price and time and 69 buy trades in 1,43,170 shares synchronized by price, time and quantity with his sole proprietorship M/s. Shree Radhe in the period 18 th April, 2006 to 25 th August, 2006.(xii) Bhavesh Pabari had entered into 282 sell trades in 2,16,578 shares which were synchronized by price and time, and 32 sell trades for 43,626 shares which was found to be synchronized by price, time and quantity with M/s Shree Radhe during the period 18 th April, 2006 to 25th August, 2006.(xiii) Bhavesh Pabari had entered into 28 buy trades for 55,915 shares synchronized by price and time and 21 buy trades for 39,350 shares synchronized by price, time and quantity with Hemant Sheth in the period 18 th April, 2006 to 25 th August, 2006.(xiv) Bhavesh Pabari had entered into 22 sell trades for 41,500 shares which were found to be synchronized by price and time and 16 sell trades for 40,422 shares which were synchronized by price, time and quantity with Hemant Sheth in the period 18 th April, 2006 to 25 th August, 2006.(xv) Similarly, there were 13 buy and sell trades with Neeraj Sanghvi. 18. The sole contention of the learned counsels appearing on behalf of Bhavesh Pabari and M/s Shree Radhe is that penalties of Rs.20,00,000 (Rupees twenty lakhs only) each should not have been separately imposed on Bhavesh Pabari and M/s Shree Radhe, of which he was the sole proprietor.19. This contention superficially seems attractive, but on an in-depth reflection should be rejected as Bhavesh Pabari had indulged in trading in its personal name and as also the sole proprietor of M/s. Shree Radhe. This is clear from inter se transactions and transactions with connected persons. Thus, Bhavesh Pabari had transacted in two different capacities, i.e., in his personal name and as sole proprietor of M/s. Shree Radhe. It is in this background that total penalty of Rs.40 lakhs (Rupees forty lakhs only) under Section 15-HA of the SEBI Act had been imposed for violation of Regulations 4(2)(a), (b) and (g) of the PFUTP Regulations as the transactions were in two different names, though belonging to the same individual. 20. Accordingly, C.A. No.9798/2014 preferred by M/s Shree Radhe and C.A. No.9797/2014 preferred by Bhavesh Pabari hold no merit and are dismissed affirming the order passed by the Appellate Tribunal and confirming the penalty of Rs.20,00,000/- (Rupees twenty lakhs only) each imposed under Section 15¬HA of the Act. C.A. | 0[ds]6. Insofar as the second question is concerned, if the penalty provisions are to be understood as not admitting of any exception or discretion and the penalty as prescribed in Section 15¬A to Section 15-HA of the SEBI Act is to be mandatorily imposed in case of default/failure, Section 15¬J of the SEBI Act would stand obliterated and eclipsed. Hence, the question referred. Sections 15¬A(a) to 15¬HA have to be read along with Section 15-J in a manner to avoid any inconsistency or repugnancy. We must avoid conflict and head¬on-clash and construe the said provisions harmoniously. Provision of one section cannot be used to nullify and obtrude another unless it is impossible to reconcile the two provisions. The explanation to Section 15¬ J of the SEBI Act added by Act No.7 of 2017, quoted above, has clarified and vested in the Adjudicating Officer a discretion under Section 15-J on the quantum of penalty to be imposed while adjudicating defaults under Sections 15¬A to 15-HA. Explanation to Section 15¬J was introduced/added in 2017 for the removal of doubts created as a result of pronouncement in M/s. Roofit Industries Ltd. case (supra). We are in agreement with the reasoning given in reference order dated 14 th March, 2016 that M/s Roofit Industries Ltd. had erroneously and wrongly held that Section 15-J would not be applicable after Section 15¬ A(a) was amended with effect from 29 th October, 2002 till 7 th September, 2014 when Section 15¬A(a) of the SEBI Act was again amended. It is beyond any doubt that the second referred question stands fully answered by clarification through the medium of enacting the Explanation to Section 15-J vide Act No.7 to 2017, which also states that the Adjudicating Officer shall always have deemed to have exercised and applied the provision. We, therefore, deem it appropriate to hold that the provisions of Section 15¬J were never eclipsed and had continued to apply in terms thereof to the defaults under Section 15-A(a) of the SEBI Act.7. Reference Order in Siddharth Chaturvedi & Ors. (supra) on the said aspect has observed that Section 15¬A(a) could apply even to technical defaults of small amounts and, therefore, prescription of minimum mandatory penalty of Rs.1 lakh per day subject to maximum of Rs.1 crore, would make the Section completely disproportionate and arbitrary so as to invade and violate fundamental rights. Insertion of the Explanation would reflect that the legislative intent, in spite of the use of the expressionin Section 15-A(a) as it existed during the period 29 th October 2002 till 7 th September 2014, was not to curtail the discretion of the Adjudicating Officer by prescribing a minimum mandatory penalty of not less than Rs. 1 lakh per day till compliance was made, notwithstanding the fact that the default was technical, no loss was caused to the investor(s) and no disproportionate gain or unfair advantage was made. The legislative intent is also clear as Section 15A(a) was amended by the Amendment Act No.27 of 2014 to state that the penalty could extend to Rs. 1 lakh for each day during which the failure continues subject to a maximum penalty of Rs. 1 crore. This amendment in 2014 was not retrospective and therefore, clarificatory and removal of doubt Explanation to Section 15¬J was added by the Act No. 7 of 2017. Normally the expressionwould connote absence of discretion by prescribing the minimum mandatory penalty, but in the context of Section 15A(a) as it was between 29 th October,2002 till 7 th September, 2014, read along with Explanation to Section 15-J added by Act No.7 of 2017, we would hold the legislative intent was not to prescribe minimum mandatory penalty of Rs.1 lakh per day during which the default and failure had continued. We would prefer read and interpret Section 15¬A(a) as it was between 25 th October, 2002 and 7 th September, 2014 in line with the Amendment Act 27 of 2014 as giving discretion to the Adjudicating Officer to impose minimum penalty of Rs.1 lakh subject to maximum penalty of Rs.1 crore, keeping in view the period of default as well as aggravating and mitigating circumstances including those specified in Section 15¬J of the SEBI Act.8. This will require us to consider the first question referred. Having dealt with the submissions advanced by the rival parties, (both parties have actually canvassed for a wider and more expansive interpretation of Section 15¬J), we are inclined to take the view that the provisions of clauses (a), (b) and (c) of Section 15-J are illustrative in nature and have to be taken into account whenever such circumstances exist. But this is not to say that there can be no other circumstance(s) beyond those enumerated in clauses (a), (b) and (c) of Section 15-J that the Adjudicating Officer is precluded in law from considering while deciding on the quantum of penalty to be imposed.9. A narrow view would be in direct conflict with the provisions of Section 15-I(2) of the SEBI Act which vests jurisdiction in the Adjudicating Officer, who is empowered on completion of the inquiry to imposepenalty as he thinks fit in accordance with the provisions of any of those sections.10. The above apart, the circumstances enumerated in clauses (a), (b) and (c) of Section 15-J of the SEBI Act may have no relevance and may never arise in case of contraventions contemplated by certain provisions of the SEBI Act, for instance Section 15-A, 15¬B or 15¬C of the SEBI Act. Failure to furnish information, return, etc.; failure to enter into agreement with clients; and failure to redressgrievances cannot give rise to the circumstances set out in clauses (a), (b) and (c) of Section 15¬J.11. Therefore, to understand the conditions stipulated in clauses (a), (b) and (c) of Section 15-J to be exhaustive and admitting of no exception or vesting any discretion in the Adjudicating Officer would be virtually to admit/concede that in adjudications involving penalties under Sections 15¬ A, 15¬B and 15¬C, Section 15-J will have no application. Such a result could not have been intended by the legislature. We, therefore, hold and take the view that conditions stipulated in clauses (a), (b) and (c) of Section 15¬ J are not exhaustive and in the given facts of a case, there can be circumstances beyond those enumerated by clauses (a), (b) and (c) of Section 15-J which can be taken note of by the Adjudicating Officer while determining the quantum of penalty.12. At this stage, we must also deal with and reject the argument raised by some of the private appellants that the conditions stipulated in clauses (a) to (c) of Section 15¬J are mandatory conditions which must be read into Sections 15¬ A to 15-HA in the sense that unless the conditions specified in clauses (a) to (c) are satisfied, penalty cannot be imposed by the Adjudicating Officer under the substantive provisions of Sections 15¬A to 15-HA of the SEBI Act. The argument is too far¬fetched to be accepted. Section 15¬J of the SEBI Act enumerates by way of illustration(s) the factors which the Adjudicating Officer should take into consideration for determining the quantum of penalty imposable. The imposition of penalty depends upon satisfaction of the substantive provisions as contained in Sections 15¬A to Section 15¬HA of the SEBI Act.13. There is a distinction between a continuing offence and a repeat offence. The continuing offence is a one which is of a continuous nature as distinguished from one which is committed once and for all. The termas explained and elucidated by giving several illustrations in State of Bihar vs. Deokaran Nenshi & Ors.(1972) 2 SCC 890 . In case of continuing offence, the liability continues until the rule or its requirement is obeyed or complied with. On every occasion when disobedience or non-compliance occurs and reoccurs, there is an offence committed. Continuing offence constitutes a fresh offence every time or occasion it occurs. In Union of India & Anr. Vs. Tarsem Singh (2008) 8 SCC 648 , continuing offence or default in service law was explained as a single wrongful act which causes a continuing injury. A recurring or successive wrong, on the other hand, are those which occur periodically with each wrong giving rise to a distinct and separate cause of action. We have made reference to this legal position in view of clause (c) of Section 15¬J of the SEBI Act which refers to repetitive nature of default and not a continuing default. The wordas used therein would refer to a recurring or successive default. This factum has to be taken into consideration while deciding upon the quantum of penalty. This dictum, however, does not mean that factum of continuing default is not a relevant factor, as we have held that clauses (a) to (c) in Section 15¬J of the SEBI Act are merely illustrative and are not the only grounds/factors which can be taken into consideration while determining the quantum of penalty.14. We now proceed to consider each of the case as, in our considered view, such exercise would be appropriate to finally terminate/decide the appeals under consideration.19. This contention superficially seems attractive, but on an in-depth reflection should be rejected as Bhavesh Pabari had indulged in trading in its personal name and as also the sole proprietor of M/s. Shree Radhe. This is clear from inter se transactions and transactions with connected persons. Thus, Bhavesh Pabari had transacted in two different capacities, i.e., in his personal name and as sole proprietor of M/s. Shree Radhe. It is in this background that total penalty of Rs.40 lakhs (Rupees forty lakhs only) under Section 15-HA of the SEBI Act had been imposed for violation of Regulations 4(2)(a), (b) and (g) of the PFUTP Regulations as the transactions were in two different names, though belonging to the samepenalty imposed by the Adjudicating Authority took into consideration the mitigating factors and cannot be said to be excessively harsh or unreasonable.Submission of the SEBI that the impugned order did not record any reason for deleting the said penalty, in spite of observing that the explanation given by Bhavesh Pabari did not inspire confidence, would be a just and fair criticism and a good challenge. We clearly have reservations on the ground stated or rather lack of reasoning given by the Appellate Tribunal, especially in the light of the language of Sections 15¬A(a) and Section 15-J of the Act. However, during the hearing, the learned counsel appearing for Bhavesh Pabari had drawn our attention to his reply dated 28 th September, 2009 stating that Bhaveshgrandmother had expired and, therefore, he had requested for time to make an appearance. It was stated at the Bar that grandmother of Bhavesh Pabari had expired on 19 th September, 2009, and this aspect was highlighted and made known to the authorities. Furthermore, Bhavesh Pabari/ M/s. Shree Radhe had submitted part information vide letter dated 2 nd November, 2009. These aspects and explanations have not been considered by the Appellate Tribunal.24. Adjudicating Officer, while imposing penalty had referred to the letter dated 6 th May, 2009 by which Bhavesh Pabari and M/s. Shree Radhe were required to furnish information of details regarding trading in the GPL scrips, connection/relation with the GPL, its promoters/directors, connection/relation between Hemant Sheth, etc. but the said notice was not complied with. Thereafter, reminders dated 21 st July, 2009 and 14 th August, 2009 were issued, but again of no avail. This was followed by summons dated 4 th September, 2009, 23 rd September 2009, 20 th October, 2009 and 5 th November, 2009.In view of the factual background and the reasoning given by the Appellate Tribunal, we do not find any good ground and reason to interfere with the quantum of penalty confirmed by the impugned order passed by the Appellate Tribunal.This court, in the exercise of its jurisdiction under Section 15-Z of the SEBI Act, cannot go into the proportionality and quantum of the penalty imposed, unless the same is distinctly disproportionate to the nature of the violation which makes it offensive, tyrannous or intolerable. Penalty by the very nature of the provision is penal. We can interfere only where the quantum is wholly arbitrary and harsh which no reasonable man would award. In the instant case, the factual findings are not denied and, thus, we are not inclined to intermeddle with the quantum of penalty. The penalty imposed is just, fair and reasonable and, thus, upheld.36. The appellants have also contended that in the absence of any prescribed limitation period, SEBI should have issued show cause notice within a reasonable time and there being a delay of about 8 years in issuance of show cause notice in 2014, the proceedings should have been dropped. This contention was not raised before the Adjudicating Officer in the written submissions or the reply furnished. It is not clear whether this contention was argued before the Appellate Tribunal. There are judgments which hold that when the period of limitation is not prescribed, such power must be exercised within a reasonable time. What would be reasonable time, would depend upon the facts and circumstances of the case, nature of the default/statute, prejudice caused, whether the third¬party rights had been created etc. The show cause notice in the present case had specifically referred to the respective dates of default and the date of compliance, which was made between 30 th August, 2011 to 29 th November, 2011 (delay was between 927 days to 1897 days). Only upon compliance being made that the defaults had come to notice. In the aforesaid background, and so noticing the quantum of fine/penalty imposed, we do not find good ground and reason to interfere.The appellant does not controvert the transactions/trades. The case of the appellant is that the trades were executed within a normal price range and did not lead to an artificial price movement. Reliance was placed oncircular dated 14 th September, 1999 that cross deals executed between two clients of the same broker can be conducted through the screen mechanism of the stock exchange. Submission was that the synchronized trade was not a result of any illicit scheme. However, Appellate Tribunal had rejected the contentions as the transactions/trades made by the appellants were between family members restricted to two scrips of WTIL and ADPL spread over a period of 6 days and had referred to the factual matrix of the case.43. Reference to the Securities and Exchange Board of India vs. Rakhi Trading (P) Ltd. (2018) 13 SCC 753 ( paragraph 40) which refers to an earlier decision in the Securities and Exchange Board of India vs. Kishore R. Ajmera(2016) 6 SCC 368 is misconceived, for the said decisions do not hold that a broker cannot be proceeded against for violation of Regulation 7 of the SEBI (Stock Brokers and Sub-Brokers) Regulations, 1992 (for short) for violation of Clause A(2) of the Code of Conduct for Stock Brokers. The decisions hold that a broker would not be liable merely because he had facilitated the transactions, in the absence of any material to suggest negligence and connivance on the part of the broker. Thus, the matter would be different as observed in the concurring judgment of Banumathi, J. in Rakhi Trading Pvt. Ltd. (Supra), where there was evidence to show involvement and meeting of minds of the share broker with the client to indulge in egregious and foul transactions, in which circumstances the stock broker would be held liable. While proximity of time in an isolated case may not be conclusive, but huge volume of trading between same set/group of brokers can in a given case reasonably point to some kind of a fraudulent and manipulative exercise with prior meeting of minds. Further, there is a difference between synchronized trading involving bulk quantities and negotiated trades as a result of consensual bargaining involving synchronization of buy and sell orders resulting in matching thereof as per permissible parameters which are programmed accordingly. Test of preponderance of probability applies for the adjudication and determination of civil liability for violation of the SEBI Act or the provisions of the Regulations framed thereunder (see para 65 to 69 in Rakhi Trading Pvt. Ltd.). Keeping the aforesaid parameters in mind, the adjudicating authority had imposed penalty of Rs.3,00,000/- (Rupees three lakhs only) under Section 15¬ HB of the SEBI Act, which has been upheld by the Appellate Tribunal being commensurate with the violation.The appellant did not dispute the factual findings of having indulged in synchronized trade, circular trade and reversal trade in the scrips of M/s. Gangotri Textiles Ltd. They pleaded leniency claiming that they had no mala fide intention and their annual turnover for several years was around Rs.5,00,000/- (Rupees five lakhs only). Lastly, their contribution towards Last Traded Price (LTP) variation was nominal. The contentions have to be rejected as the appellant was a part of the larger game plan along with other entities who had indulged in synchronized, circular and reversal trading leading to a total cumulative positive and negative LTP contribution of Rs.999.25 and Rs.1007.25 respectively. It is to be further noted that the penalty imposable under 15-HA of the SEBI Act could be upto Rs.25,00,00,000/¬ (Rupees twenty¬five crores only) or three times the amount of profit made out of such practices whichever was higher. Thus, the penalty of Rs.60,00,000/¬ (Rupees sixty lakhs only) was not unreasonable and excessive. Similarly, penalty of Rs.15,00,000/¬ (Rupees fifteen lakhs only) for failing to adhere to the standards required to be maintained by the stock brokers which could be as high as Rs.1,00,00,000/- (Rupees one crore only) was not excessive, unreasonable or harsh. Penalty was also imposed on others who had participated in the nefarious plan. Findings are correct and unchallengeable. We do not find any good ground and reason to interfere with the quantum of penalty.The appellants were required to furnish particulars about the plans/schemes offered to the public, funds mobilized, Memorandum of Association, details of Directors, etc. in order to examine the matter under Section 11¬AA of the SEBI Act and the SEBI (Collective Investment Schemes), Regulations, 1999 (or short). For this purpose, various letters dated 22 nd November, 2012, 11 th January, 2013, 7 th November, 2013 and 20 th February, 2014 were written by SEBI to the two appellant Directors, two other Directors and M/s Skylark Land Developers & Infrastructure India Pvt. Ltd. for furnishing of information /documents/reports. Since there was an inordinate delay, default and failure in furnishing information and responding to these letters, fresh summons were issued on 30 th July, 2014 under Section 11¬C(3) of the SEBI Act requiring them to furnish the details to which again there was no response. Consequently, second summons dated 12 th September, 2014 were issued for furnishing information by 22 nd September, 2014, to which yet again there was no response. Thereafter, show cause notice on 30 th June, 2015 was issued to which a part reply was given by the appellants on 23 rd September, 2015. An email dated 30 th November, 2015 was also sent by SEBI asking them to reply before 10 th December, 2015, with an opportunity to appear on 15 th December, 2015. This was also communicated by forwarding the notice through Speed Post AD, which was returned undelivered in case of Durga Prasad. Thus, several opportunities were given to ensure compliance by the appellants. Afterwards, on 15 th December, 2015 Subodh Kumar Gupta, authorized representative of the appellants and others had appeared and sought adjournment for 22 nd December, 2015, on which date a reply was filed. Subsequently, an additional reply dated 30 th December, 2015 was furnished. Appellants in the aforesaid replies had stated that their offices were sealed and, therefore, the required details and information could not be furnished. Further, SEBI had not provided them necessary documents including the copy of complaint, affidavit, evidence against them and the investigation report.49. We would now refer to the background of the case and why notices/summons were issued. The aforesaid notices and summons were issued pursuant to orders passed by the High Court of Madhya Pradesh in the year 2010 in Public Interest Litigation against various companies including M/s Skylark Land Developer and Infrastructure India Pvt. Ltd. for cheating thousands of investors in fraudulent schemes by promising high returns. Pursuant to orders passed by the High Court, different authorities including SEBI were given liberty to take appropriate action in accordance with law. Central Bureau of Investigation was also directed to conduct investigation. Therefore, SEBI had issued notice to the aforesaid company, the two appellants and two other Directors to provide information of documents for alleged violation of Section 11¬C of the SEBI Act.50. During the course of hearing by SEBI, most details as provided by the appellants were general in nature. We would observe that in case there was no violation pertaining to mobilization of funds from the public under various schemes/arrangements, this could have been so stated in clear and categoric terms. Moreover, the contention that the offices were sealed which rendered them incapable to furnish information has been rejected for two good reasons. First, this stand is belated and held to be an afterthought when it could have been raised at the first instance when the reply dated 5 th December, 2012 was furnished, given that the records were seized by the police on 5 th May, 2011. Second, assertion was contradicted by their own conduct when during the proceedings they had submitted a few documents, which were incomplete and not as desired. They did not make any distinction as to the documents within their possession and as to those with the police. Appellate Tribunal had in these circumstances affirmed the finding that there was a lack of good faith and failure in complying with the aforesaid notices/letters/summons/emails. Adjudicating Officer had, therefore, rightly recorded that non-compliance of summons had hampered the further course of investigation. The failure was without any justification. Agreeing with the said findings, the Appellate Tribunal has observed that details were withheld with a view to delay the investigation being conducted by SEBI to the detriment of investors from whom funds were collected by the appellants in contravention of CIS Regulations. | 0 | 4,221 | 4,190 | ### 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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Shree Radhe Vs. The Adjudicating Officer, SEBI)C.A. No. 9799 of 2014 (Hemant Sheth Vs. The Adjudicating Officer, SEBI) 15. These appeals arise from a common order dated 10 th September, 2013 passed by the Securities Appellate Tribunal, Mumbai, ( “Appellate Tribunal” for short), on appeals preferred by Mr. Bhavesh Pabari, M/s Shree Radhe, and Mr. Hemant Sheth impugning three separate orders all dated 30 th December, 2011 passed by the Adjudicating Officer under Section 15¬I of the SEBI Act.16. Impugned order passed by the Appellate Tribunal confirms penalty of Rs.20,00,000 (Rupees twenty lakhs only) each as imposed on the appellants by the Adjudicating Officer under Section 15-HA of the Act for violation of Regulation Nos.4(2)(a), (b) and (g) of the SEBI (Prohibition of Fraudulent and Unfair Trade Practices relating to Securities Market) Regulations, 2003 ( “PFUTP Regulations” for short). 17. Factual findings, as observed by the Adjudicating Officer and accepted by the Appellate Tribunal as un¬ controvertible, are mentioned below: (i) Bhavesh Pabari in his name and as sole proprietor of M/s. Shree Radhe, Hemant Sheth and one Neeraj Sanghvi had indulged in synchronized/structured and reversed trade in the scrips of M/s. Gulshan Polyols Ltd. (erstwhile Gulshan Sugar and Chemicals Ltd.) ( “GPL” for short) from 10 th April, 2006 to 8 th September, 2006.(ii) Connection/complicity between Bhavesh Pabari/M/s. Shree Radhe, Hemant Sheth and one Neeraj Sanghvi was established and was not disputed. Hemant Sheth and Bhavesh Pabari/M/s. Shree Radhe had a common introducer in the “Know Your Customer” documentation.(iii) Scrips of GPL opened at Rs.44.75 on 12 th January, 2006, touched a peak high of Rs.103.40 on 30 th August, 2006 and closed at Rs. 31.70 on 29 th December, 2006. The share price of the scrips during the period 1 st December, 2005 to 11 January, 2006 was in the range of Rs.31.50 to Rs. 49.90 with an average daily volume of 8,255 shares.(iv) The three appellants along with Neeraj Sanghvi, during the period 10th April, 2006 to 8 th September, 2006 had traded with each other in 18,48,081 shares of the GPL which had accounted for around 16.29% of the total traded volume in this period.(v) About 45% of the total shares, i.e., 8,34,453 shares were executed via structured orders, i.e., buy and sell orders which were placed within a gap of one minute. Out of this, trade in 5,97,835 shares (32% of the total shares traded) were through synchronized orders as the rate and quantity of the buy and sell order were identical.(vi) On 64 trading dates between 10 th April, 2006 to 8 th September, 2006, a reverse trading pattern was espied in 15,18,204 shares, which had accounted for 13.38% of the total market value and was more than 20% of the market volume in the aforesaid period.(vii) On 24 days between the period from 10 April, 2006 to 8 th September, 2006, the quantity traded in the GPL scrips between the connected persons was more than 50% of the market volume.(viii) On 1 st August, 2006, the connected transactions were 83.79% of the market volume.(ix) Bhavesh Pabari had indulged in self trade in 60,203 GPL shares (5.1% of the total traded quantity from 18 th April, 2006 to 25 th August, 2006).(x) Bhavesh Pabari had executed reversal trades with M/s. Shree Radhe and Hemant Sheth for 7,73,810 shares during the period 18 th April, 2006 to 25 th August, 2006 which was 66% of the total traded quantity.(xi) Bhavesh Pabari had entered into 96 buy trades in 1,22,324 shares which were found to be synchronized by price and time and 69 buy trades in 1,43,170 shares synchronized by price, time and quantity with his sole proprietorship M/s. Shree Radhe in the period 18 th April, 2006 to 25 th August, 2006.(xii) Bhavesh Pabari had entered into 282 sell trades in 2,16,578 shares which were synchronized by price and time, and 32 sell trades for 43,626 shares which was found to be synchronized by price, time and quantity with M/s Shree Radhe during the period 18 th April, 2006 to 25th August, 2006.(xiii) Bhavesh Pabari had entered into 28 buy trades for 55,915 shares synchronized by price and time and 21 buy trades for 39,350 shares synchronized by price, time and quantity with Hemant Sheth in the period 18 th April, 2006 to 25 th August, 2006.(xiv) Bhavesh Pabari had entered into 22 sell trades for 41,500 shares which were found to be synchronized by price and time and 16 sell trades for 40,422 shares which were synchronized by price, time and quantity with Hemant Sheth in the period 18 th April, 2006 to 25 th August, 2006.(xv) Similarly, there were 13 buy and sell trades with Neeraj Sanghvi. 18. The sole contention of the learned counsels appearing on behalf of Bhavesh Pabari and M/s Shree Radhe is that penalties of Rs.20,00,000 (Rupees twenty lakhs only) each should not have been separately imposed on Bhavesh Pabari and M/s Shree Radhe, of which he was the sole proprietor.19. This contention superficially seems attractive, but on an in-depth reflection should be rejected as Bhavesh Pabari had indulged in trading in its personal name and as also the sole proprietor of M/s. Shree Radhe. This is clear from inter se transactions and transactions with connected persons. Thus, Bhavesh Pabari had transacted in two different capacities, i.e., in his personal name and as sole proprietor of M/s. Shree Radhe. It is in this background that total penalty of Rs.40 lakhs (Rupees forty lakhs only) under Section 15-HA of the SEBI Act had been imposed for violation of Regulations 4(2)(a), (b) and (g) of the PFUTP Regulations as the transactions were in two different names, though belonging to the same individual. 20. Accordingly, C.A. No.9798/2014 preferred by M/s Shree Radhe and C.A. No.9797/2014 preferred by Bhavesh Pabari hold no merit and are dismissed affirming the order passed by the Appellate Tribunal and confirming the penalty of Rs.20,00,000/- (Rupees twenty lakhs only) each imposed under Section 15¬HA of the Act. C.A.
### Response:
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### Explanation:
Keeping the aforesaid parameters in mind, the adjudicating authority had imposed penalty of Rs.3,00,000/- (Rupees three lakhs only) under Section 15¬ HB of the SEBI Act, which has been upheld by the Appellate Tribunal being commensurate with the violation.The appellant did not dispute the factual findings of having indulged in synchronized trade, circular trade and reversal trade in the scrips of M/s. Gangotri Textiles Ltd. They pleaded leniency claiming that they had no mala fide intention and their annual turnover for several years was around Rs.5,00,000/- (Rupees five lakhs only). Lastly, their contribution towards Last Traded Price (LTP) variation was nominal. The contentions have to be rejected as the appellant was a part of the larger game plan along with other entities who had indulged in synchronized, circular and reversal trading leading to a total cumulative positive and negative LTP contribution of Rs.999.25 and Rs.1007.25 respectively. It is to be further noted that the penalty imposable under 15-HA of the SEBI Act could be upto Rs.25,00,00,000/¬ (Rupees twenty¬five crores only) or three times the amount of profit made out of such practices whichever was higher. Thus, the penalty of Rs.60,00,000/¬ (Rupees sixty lakhs only) was not unreasonable and excessive. Similarly, penalty of Rs.15,00,000/¬ (Rupees fifteen lakhs only) for failing to adhere to the standards required to be maintained by the stock brokers which could be as high as Rs.1,00,00,000/- (Rupees one crore only) was not excessive, unreasonable or harsh. Penalty was also imposed on others who had participated in the nefarious plan. Findings are correct and unchallengeable. We do not find any good ground and reason to interfere with the quantum of penalty.The appellants were required to furnish particulars about the plans/schemes offered to the public, funds mobilized, Memorandum of Association, details of Directors, etc. in order to examine the matter under Section 11¬AA of the SEBI Act and the SEBI (Collective Investment Schemes), Regulations, 1999 (or short). For this purpose, various letters dated 22 nd November, 2012, 11 th January, 2013, 7 th November, 2013 and 20 th February, 2014 were written by SEBI to the two appellant Directors, two other Directors and M/s Skylark Land Developers & Infrastructure India Pvt. Ltd. for furnishing of information /documents/reports. Since there was an inordinate delay, default and failure in furnishing information and responding to these letters, fresh summons were issued on 30 th July, 2014 under Section 11¬C(3) of the SEBI Act requiring them to furnish the details to which again there was no response. Consequently, second summons dated 12 th September, 2014 were issued for furnishing information by 22 nd September, 2014, to which yet again there was no response. Thereafter, show cause notice on 30 th June, 2015 was issued to which a part reply was given by the appellants on 23 rd September, 2015. An email dated 30 th November, 2015 was also sent by SEBI asking them to reply before 10 th December, 2015, with an opportunity to appear on 15 th December, 2015. This was also communicated by forwarding the notice through Speed Post AD, which was returned undelivered in case of Durga Prasad. Thus, several opportunities were given to ensure compliance by the appellants. Afterwards, on 15 th December, 2015 Subodh Kumar Gupta, authorized representative of the appellants and others had appeared and sought adjournment for 22 nd December, 2015, on which date a reply was filed. Subsequently, an additional reply dated 30 th December, 2015 was furnished. Appellants in the aforesaid replies had stated that their offices were sealed and, therefore, the required details and information could not be furnished. Further, SEBI had not provided them necessary documents including the copy of complaint, affidavit, evidence against them and the investigation report.49. We would now refer to the background of the case and why notices/summons were issued. The aforesaid notices and summons were issued pursuant to orders passed by the High Court of Madhya Pradesh in the year 2010 in Public Interest Litigation against various companies including M/s Skylark Land Developer and Infrastructure India Pvt. Ltd. for cheating thousands of investors in fraudulent schemes by promising high returns. Pursuant to orders passed by the High Court, different authorities including SEBI were given liberty to take appropriate action in accordance with law. Central Bureau of Investigation was also directed to conduct investigation. Therefore, SEBI had issued notice to the aforesaid company, the two appellants and two other Directors to provide information of documents for alleged violation of Section 11¬C of the SEBI Act.50. During the course of hearing by SEBI, most details as provided by the appellants were general in nature. We would observe that in case there was no violation pertaining to mobilization of funds from the public under various schemes/arrangements, this could have been so stated in clear and categoric terms. Moreover, the contention that the offices were sealed which rendered them incapable to furnish information has been rejected for two good reasons. First, this stand is belated and held to be an afterthought when it could have been raised at the first instance when the reply dated 5 th December, 2012 was furnished, given that the records were seized by the police on 5 th May, 2011. Second, assertion was contradicted by their own conduct when during the proceedings they had submitted a few documents, which were incomplete and not as desired. They did not make any distinction as to the documents within their possession and as to those with the police. Appellate Tribunal had in these circumstances affirmed the finding that there was a lack of good faith and failure in complying with the aforesaid notices/letters/summons/emails. Adjudicating Officer had, therefore, rightly recorded that non-compliance of summons had hampered the further course of investigation. The failure was without any justification. Agreeing with the said findings, the Appellate Tribunal has observed that details were withheld with a view to delay the investigation being conducted by SEBI to the detriment of investors from whom funds were collected by the appellants in contravention of CIS Regulations.
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Commissioner Of Income-Tax, Bangalore Vs. Shah Mohandas Sadhuram | the adult partner and the minor and to all intents and purposes, the minor was a full partner, even though under the partnership law he could only be admitted to the benefit of the partnership and not as a partner."9. Does this deed then make the minors full partners or does it only confer benefits of partnership on them? Is any clause of the deed void? Before we discuss these questions it is necessary to consider what are the incidents and true nature of benefits of partnership and what is a guardian of a minor competent to do on behalf of a minor to secure the full benefits of partnership to a minor. First it is clear from sub-s. (2) of S. 30 of the Partnership Act that a minor cannot be made liable for losses. Secondly S. 30, sub-section (4) enables a minor to sever his connection with the firm and if he does so, the amount of his share has to be determined by evaluation made, as far as possible, in accordance with the rules contained in S. 48, which section visualises capital having been contributed by partners. There is no difficulty in holding that this severance may be effected on behalf of a minor by his guardian. Therefore, sub-section (4) contemplates that capital may have been contributed on behalf of a minor and that a guardian may on behalf of a minor sever his connection with the firm. If the guardian is entitled to sever the minors connection with the firm, he must also be held to be entitled to refuse to accept the benefits of partnership or agree to accept the benefits of partnership for a further period on terms which are in accordance with law. Sub-section (5) proceeds on the basis that the minor may or may not know that he has been admitted to the benefits of partnership. This sub-section enables him to elect, on attaining majority, either to remain a partner or not to become a partner in the firm. Thus it contemplates that a guardian may have accepted the benefits of a partnership on behalf of a minor without his knowledge. If a guardian can accept benefits of partnership on behalf of a minor he must have the power to scrutinise the terms on which such benefits are received by the minor. He must also have the power to accept the conditions on which the benefits of partnership are being conferred. It appears to us that the guardian can do all that is necessary to effectuate the conferment and receipt of the benefits of partnership.10. It follows from the above discussion that as along as a partnership deed does not make a minor full partner a partnership deed cannot be regarded as invalid on the ground that a guardian has purported to contract on behalf of a minor if the contract is for the purposes mentioned above.11. Let us then examine the partnership deed in the light of these principles. It need hardly be stated that the partnership deed must be construed reasonably. The recital set out above expressly states that it is the major members who had decided to constitute the partnership and admit the minors to the benefits of the said partnership. The rest of the clauses must be construed in the light of this recital. Clause 4 only states the business to be carried on and the name of the business. It seems to us that the expression it has been agreed between us has reference to the agreement mentioned in the recital. Regarding clause 7, which deals with capital contribution it is urged that a guardian is not entitled to agree to contribute capital. We are unable to agree. If it is one of the terms on which benefits of partnership are being conferred either the guardian must refuse to accept the benefits or he must accept this term. In some cases such an agreement by a guardian may be avoided by the minor, if it was not entered into for his benefit, but the agreement will remain valid as long as it is not avoided by the minor.12. Regarding clause 10, Mr. Karkhanis submits that this embodies a clear agreement enabling the minor to continue the said partnership even thereafter under these terms or on terms to be determined then, and therefore this clause is void.We can find no defect in this clause. The duration of a partnership has to be fixed between the major members, and the guardian on behalf of a minor may agree to accept the benefits of the partnership only if the duration is to the benefit of the minor. Clause 10 enables the guardian to accept the benefits of partnership under these terms or under such other terms as may be determined. If the terms determined in future are similar, no objection can be taken; if on the other hand the terms determined later are in contravention of law, the partnership deed will be held to be bad. Clause 11 has reference to the manner of keeping accounts and a guardian is entitled to assent to the mode of keeping accounts.13. In our opinion, the partnership deed, reasonably construed, only confers, benefits of partnership on the two minors and does not make them full partners. The guardian has agreed to certain clauses in order to effectuate the decision of the major members to confer the benefits of the said partnership to the minors. Accordingly we hold that the Income Tax authorities should not have declined to register the firm. We may mention that the supplementary deed dated April 1, 1953, has not been included in the statement of the case, but it is common ground that nothing turns on any of the clauses in the supplementary deed.14. Accordingly, agreeing with the High Court, we hold that the firm is entitled to be registered under S. 26-A of the Income Tax Act, and the answer to the question referred is in the affirmative. | 0[ds]10. It follows from the above discussion that as along as a partnership deed does not make a minor full partner a partnership deed cannot be regarded as invalid on the ground that a guardian has purported to contract on behalf of a minor if the contract is for the purposes mentioned above.11. Let us then examine the partnership deed in the light of these principles. It need hardly be stated that the partnership deed must be construed reasonably. The recital set out above expressly states that it is the major members who had decided to constitute the partnership and admit the minors to the benefits of the said partnership. The rest of the clauses must be construed in the light of this recital. Clause 4 only states the business to be carried on and the name of the business. It seems to us that the expression it has been agreed between us has reference to the agreement mentioned in the recital. Regarding clause 7, which deals with capital contribution it is urged that a guardian is not entitled to agree to contribute capital. We are unable to agree. If it is one of the terms on which benefits of partnership are being conferred either the guardian must refuse to accept the benefits or he must accept this term. In some cases such an agreement by a guardian may be avoided by the minor, if it was not entered into for his benefit, but the agreement will remain valid as long as it is not avoided by the minor.12. Regarding clause 10, Mr. Karkhanis submits that this embodies a clear agreement enabling the minor to continue the said partnership even thereafter under these terms or on terms to be determined then, and therefore this clause is void.We can find no defect in this clause. The duration of a partnership has to be fixed between the major members, and the guardian on behalf of a minor may agree to accept the benefits of the partnership only if the duration is to the benefit of the minor. Clause 10 enables the guardian to accept the benefits of partnership under these terms or under such other terms as may be determined. If the terms determined in future are similar, no objection can be taken; if on the other hand the terms determined later are in contravention of law, the partnership deed will be held to be bad. Clause 11 has reference to the manner of keeping accounts and a guardian is entitled to assent to the mode of keeping accounts.13. In our opinion, the partnership deed, reasonably construed, only confers, benefits of partnership on the two minors and does not make them full partners. The guardian has agreed to certain clauses in order to effectuate the decision of the major members to confer the benefits of the said partnership to the minors. Accordingly we hold that the Income Tax authorities should not have declined to register the firm. We may mention that the supplementary deed dated April 1, 1953, has not been included in the statement of the case, but it is common ground that nothing turns on any of the clauses in the supplementary deed.14. Accordingly, agreeing with the High Court, we hold that the firm is entitled to be registered under S. 26-A of the Income Tax Act, and the answer to the question referred is in the affirmative. | 0 | 2,701 | 614 | ### Instruction:
Estimate the outcome of the case (positive (1) or negative (0) for the appellant) and then give a reasoned explanation by examining important sentences within the case documentation.
### Input:
the adult partner and the minor and to all intents and purposes, the minor was a full partner, even though under the partnership law he could only be admitted to the benefit of the partnership and not as a partner."9. Does this deed then make the minors full partners or does it only confer benefits of partnership on them? Is any clause of the deed void? Before we discuss these questions it is necessary to consider what are the incidents and true nature of benefits of partnership and what is a guardian of a minor competent to do on behalf of a minor to secure the full benefits of partnership to a minor. First it is clear from sub-s. (2) of S. 30 of the Partnership Act that a minor cannot be made liable for losses. Secondly S. 30, sub-section (4) enables a minor to sever his connection with the firm and if he does so, the amount of his share has to be determined by evaluation made, as far as possible, in accordance with the rules contained in S. 48, which section visualises capital having been contributed by partners. There is no difficulty in holding that this severance may be effected on behalf of a minor by his guardian. Therefore, sub-section (4) contemplates that capital may have been contributed on behalf of a minor and that a guardian may on behalf of a minor sever his connection with the firm. If the guardian is entitled to sever the minors connection with the firm, he must also be held to be entitled to refuse to accept the benefits of partnership or agree to accept the benefits of partnership for a further period on terms which are in accordance with law. Sub-section (5) proceeds on the basis that the minor may or may not know that he has been admitted to the benefits of partnership. This sub-section enables him to elect, on attaining majority, either to remain a partner or not to become a partner in the firm. Thus it contemplates that a guardian may have accepted the benefits of a partnership on behalf of a minor without his knowledge. If a guardian can accept benefits of partnership on behalf of a minor he must have the power to scrutinise the terms on which such benefits are received by the minor. He must also have the power to accept the conditions on which the benefits of partnership are being conferred. It appears to us that the guardian can do all that is necessary to effectuate the conferment and receipt of the benefits of partnership.10. It follows from the above discussion that as along as a partnership deed does not make a minor full partner a partnership deed cannot be regarded as invalid on the ground that a guardian has purported to contract on behalf of a minor if the contract is for the purposes mentioned above.11. Let us then examine the partnership deed in the light of these principles. It need hardly be stated that the partnership deed must be construed reasonably. The recital set out above expressly states that it is the major members who had decided to constitute the partnership and admit the minors to the benefits of the said partnership. The rest of the clauses must be construed in the light of this recital. Clause 4 only states the business to be carried on and the name of the business. It seems to us that the expression it has been agreed between us has reference to the agreement mentioned in the recital. Regarding clause 7, which deals with capital contribution it is urged that a guardian is not entitled to agree to contribute capital. We are unable to agree. If it is one of the terms on which benefits of partnership are being conferred either the guardian must refuse to accept the benefits or he must accept this term. In some cases such an agreement by a guardian may be avoided by the minor, if it was not entered into for his benefit, but the agreement will remain valid as long as it is not avoided by the minor.12. Regarding clause 10, Mr. Karkhanis submits that this embodies a clear agreement enabling the minor to continue the said partnership even thereafter under these terms or on terms to be determined then, and therefore this clause is void.We can find no defect in this clause. The duration of a partnership has to be fixed between the major members, and the guardian on behalf of a minor may agree to accept the benefits of the partnership only if the duration is to the benefit of the minor. Clause 10 enables the guardian to accept the benefits of partnership under these terms or under such other terms as may be determined. If the terms determined in future are similar, no objection can be taken; if on the other hand the terms determined later are in contravention of law, the partnership deed will be held to be bad. Clause 11 has reference to the manner of keeping accounts and a guardian is entitled to assent to the mode of keeping accounts.13. In our opinion, the partnership deed, reasonably construed, only confers, benefits of partnership on the two minors and does not make them full partners. The guardian has agreed to certain clauses in order to effectuate the decision of the major members to confer the benefits of the said partnership to the minors. Accordingly we hold that the Income Tax authorities should not have declined to register the firm. We may mention that the supplementary deed dated April 1, 1953, has not been included in the statement of the case, but it is common ground that nothing turns on any of the clauses in the supplementary deed.14. Accordingly, agreeing with the High Court, we hold that the firm is entitled to be registered under S. 26-A of the Income Tax Act, and the answer to the question referred is in the affirmative.
### Response:
0
### Explanation:
10. It follows from the above discussion that as along as a partnership deed does not make a minor full partner a partnership deed cannot be regarded as invalid on the ground that a guardian has purported to contract on behalf of a minor if the contract is for the purposes mentioned above.11. Let us then examine the partnership deed in the light of these principles. It need hardly be stated that the partnership deed must be construed reasonably. The recital set out above expressly states that it is the major members who had decided to constitute the partnership and admit the minors to the benefits of the said partnership. The rest of the clauses must be construed in the light of this recital. Clause 4 only states the business to be carried on and the name of the business. It seems to us that the expression it has been agreed between us has reference to the agreement mentioned in the recital. Regarding clause 7, which deals with capital contribution it is urged that a guardian is not entitled to agree to contribute capital. We are unable to agree. If it is one of the terms on which benefits of partnership are being conferred either the guardian must refuse to accept the benefits or he must accept this term. In some cases such an agreement by a guardian may be avoided by the minor, if it was not entered into for his benefit, but the agreement will remain valid as long as it is not avoided by the minor.12. Regarding clause 10, Mr. Karkhanis submits that this embodies a clear agreement enabling the minor to continue the said partnership even thereafter under these terms or on terms to be determined then, and therefore this clause is void.We can find no defect in this clause. The duration of a partnership has to be fixed between the major members, and the guardian on behalf of a minor may agree to accept the benefits of the partnership only if the duration is to the benefit of the minor. Clause 10 enables the guardian to accept the benefits of partnership under these terms or under such other terms as may be determined. If the terms determined in future are similar, no objection can be taken; if on the other hand the terms determined later are in contravention of law, the partnership deed will be held to be bad. Clause 11 has reference to the manner of keeping accounts and a guardian is entitled to assent to the mode of keeping accounts.13. In our opinion, the partnership deed, reasonably construed, only confers, benefits of partnership on the two minors and does not make them full partners. The guardian has agreed to certain clauses in order to effectuate the decision of the major members to confer the benefits of the said partnership to the minors. Accordingly we hold that the Income Tax authorities should not have declined to register the firm. We may mention that the supplementary deed dated April 1, 1953, has not been included in the statement of the case, but it is common ground that nothing turns on any of the clauses in the supplementary deed.14. Accordingly, agreeing with the High Court, we hold that the firm is entitled to be registered under S. 26-A of the Income Tax Act, and the answer to the question referred is in the affirmative.
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Shubh Shanti Services Ltd Vs. Manjula S. Agarwalla | the flat at Blue Heaven Cooperative Society is given to them. Admittedly the flat at Sonmarg belongs to the Company. Shri S.C. Aggarwalla, husband of Respondent No.1 and father of Respondent No.2 was the ex employee of the Company. He expired when he was in the employment of the company and respondents 1 and 2 were residing in the flat after the demise of Shri Aggarwalla as his heirs. Thus it is for Respondents 1 and 2 to show the authority of Shri Goenka to bind the company on the basis of the oral assurance given to them by him to retain the possession of the flat. The High Court has not referred to any evidence to that effect led by the respondents, nor there is any finding that the Board of Directors have authorized the Chairman Shri Goenka to give such an assurance for and on behalf of the company. On 28th of December 1993 a letter was sent by appellant requesting Respondent No.1 to vacate the premises and handover peaceful possession of the premises within 45 days of the receipt of the letter. The contents of the letter are that Shri S.C. Agarwalla was occupying the premises as a facility granted to him by the company until he was in the employment of the company. On account of the demise of Shri Agarwalla, the company deferred the request for vacation of the said premises; that more than a year has lapsed since the demise of Shri Agarwalla, it is essential for the company to take possession of the same. The correspondence placed on record by parties also does not indicate that the Chairman of the Company Mr. Goenka gave an assurance on the basis that he has been authorized to do so by the Board of Directors. 15. In the absence of any authority to the Chairman by the Board of Directors to act for and on behalf of the company, the assurance given by him to the respondents would not bind the company, nor it will create a binding agreement between the parties, namely, Respondents 1 and 2 and the company to permit the respondents to remain in possession even after the death of Shri Agarwalla, of the flat in Sonmarg. Apart from this, the Board of Directors itself could exercise the powers in accordance with the memorandum of association or the articles of the company. Any power exercised beyond the memorandum or the articles of the company would not bind the company. Any assurance given by the Board of Directors either should be authorised object of the company by the memorandum of association or the articles of the company or its purpose should be reasonably ancillary or incidental to carrying on the companies business. Evidence produced on record indicates that agreement was entered into between the company and husband of the respondent No. 1 regarding Blue Heaven flat. Late Shri Agarwalla was old employee of the company since 1971. He expired on 2.11.1992 and assurance was given by the chairman to widow of ex employee with whom he had long standing relation, when he went to see her to console her on 4.11.92, barely two days after the death of Shri Agarwalla. Such evidence in our opinion irresistibly point, predominant, if not, the only consideration operating in the mind of chairman was to console the widow and to permit her to live in the flat for some time. The assurance given to respondents 1 and 2 by the chairman of the company has more at a gratuitous and compassionate flavour and less to do with the interest of the company in mind. Moreover, it is difficult to comprehend how the chairman could promise on behalf of the Company that the respondents will be permitted to remain in flat till delivery of flat of Blue Heavan, when he himself was not sure of the time the company would get the possession of the Blue Heaven flat.16. That apart, the act of the Chairman cannot be construed to be one done incidental to the business of the Company or as a matter of necessity. After the death of Shri Agarwalla on 2.11.1992, the respondents 1 and 2 remained in possession of the companys Sonmarg flat. Admittedly they were not in employment of the company nor company has authorized them to remain in possession of the same particularly after notice dated 9.11.1994 to vacate the premises and handover the possession to the company. The possession of the companys flat by the Respondents, after the service of notice to vacate the premises by the company, is wrongful withholding of the property of the company. The respondents by having wrongfully withheld the possession of the companys flat and not delivering the property to the company, have committed an offence. The interim order of the High Court dated 16.11.1998 in the civil suit filed by the appellant-Company does not wipe out the offence committed already for which criminal complaint was filed. Subsequent to that order, the possession may not be wrongful, but on the date of complaint and till the date of that order, the Respondents did wrongfully withhold that property, attracting the offence under Section 630(1). Having regard to the factual position of the case, we think that imposition of fine of Rupees One thousand each would be a proper punishment for wrongful withholding the Sonmarg flat. Accordingly, respondents 1 and 2 are sentenced to pay fine of Rupees one thousand each. We would like to make it clear that so long as order of the High Court dated 16.11.1998 in Civil Suit No.2391 of 1997 - M/s. Herdillia Chemicals Ltd. versus Smt. Manjula Agarwala and others, appointing the Court Receiver and delivering him symbolic possession, and actual possession as agent of Receiver to Respondent No.1 stands, no direction can be given under Section 630(2) for delivery of actual possession of Sonmarg flat to appellant. It is of course open to the petitioner to approach the Civil Court for suitable orders. | 1[ds]In our opinion the decision of the High Court that Section 630 of the Companies Act being penal in nature, the proceeding thereunder cannot be construed to be a proceeding taken in due process of law, cannot beof civil suit for possession by the Company does not deprive the Company of the right to institute prosecution under the Companies Act and incidentally get an order for delivery of possession. It is stated that the civil suit was filed by way of abundant caution as well as to obtain reliefs which cannot cannot be granted by a Criminal Court trying an offence under Section 630. The next important question is whether the possession of respondents of the property belonging to the company, namely, the Sonmarg flat, after the death of Shri S.C. Agarwalla, is unlawful and unauthorized and therefore wrongful. Both the Courts, namely, the Court of Magistrate and the High Court on appreciation of the material placed before them have clearly held that after the death of Shri Agarwalla, on the basis of assurance given by the Chairman of the Board of Directors of theShri Goenka to Respondent No.1 the said flat is being occupied by theShri Agarwalla was old employee of the company since 1971. He expired on 2.11.1992 and assurance was given by the chairman to widow of ex employee with whom he had long standing relation, when he went to see her to console her on 4.11.92, barely two days after the death of Shri Agarwalla. Such evidence in our opinion irresistibly point, predominant, if not, the only consideration operating in the mind of chairman was to console the widow and to permit her to live in the flat for some time. The assurance given to respondents 1 and 2 by the chairman of the company has more at a gratuitous and compassionate flavour and less to do with the interest of the company in mind. Moreover, it is difficult to comprehend how the chairman could promise on behalf of the Company that the respondents will be permitted to remain in flat till delivery of flat of Blue Heavan, when he himself was not sure of the time the company would get the possession of the Blue Heaven flat.16. That apart, the act of the Chairman cannot be construed to be one done incidental to the business of the Company or as a matter of necessity. After the death of Shri Agarwalla on 2.11.1992, the respondents 1 and 2 remained in possession of the companys Sonmarg flat. Admittedly they were not in employment of the company nor company has authorized them to remain in possession of the same particularly after notice dated 9.11.1994 to vacate the premises and handover the possession to the company. The possession of the companys flat by the Respondents, after the service of notice to vacate the premises by the company, is wrongful withholding of the property of the company. The respondents by having wrongfully withheld the possession of the companys flat and not delivering the property to the company, have committed an offence. The interim order of the High Court dated 16.11.1998 in the civil suit filed by thedoes not wipe out the offence committed already for which criminal complaint was filed. Subsequent to that order, the possession may not be wrongful, but on the date of complaint and till the date of that order, the Respondents did wrongfully withhold that property, attracting the offence under Section 630(1). Having regard to the factual position of the case, we think that imposition of fine of Rupees One thousand each would be a proper punishment for wrongful withholding the Sonmarg flat. Accordingly, respondents 1 and 2 are sentenced to pay fine of Rupees one thousand each. We would like to make it clear that so long as order of the High Court dated 16.11.1998 in Civil Suit No.2391 of 1997M/s. Herdillia Chemicals Ltd. versus Smt. Manjula Agarwala and others, appointing the Court Receiver and delivering him symbolic possession, and actual possession as agent of Receiver to Respondent No.1 stands, no direction can be given under Section 630(2) for delivery of actual possession of Sonmarg flat to appellant. It is of course open to the petitioner to approach the Civil Court for suitable orders. | 1 | 6,136 | 775 | ### 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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the flat at Blue Heaven Cooperative Society is given to them. Admittedly the flat at Sonmarg belongs to the Company. Shri S.C. Aggarwalla, husband of Respondent No.1 and father of Respondent No.2 was the ex employee of the Company. He expired when he was in the employment of the company and respondents 1 and 2 were residing in the flat after the demise of Shri Aggarwalla as his heirs. Thus it is for Respondents 1 and 2 to show the authority of Shri Goenka to bind the company on the basis of the oral assurance given to them by him to retain the possession of the flat. The High Court has not referred to any evidence to that effect led by the respondents, nor there is any finding that the Board of Directors have authorized the Chairman Shri Goenka to give such an assurance for and on behalf of the company. On 28th of December 1993 a letter was sent by appellant requesting Respondent No.1 to vacate the premises and handover peaceful possession of the premises within 45 days of the receipt of the letter. The contents of the letter are that Shri S.C. Agarwalla was occupying the premises as a facility granted to him by the company until he was in the employment of the company. On account of the demise of Shri Agarwalla, the company deferred the request for vacation of the said premises; that more than a year has lapsed since the demise of Shri Agarwalla, it is essential for the company to take possession of the same. The correspondence placed on record by parties also does not indicate that the Chairman of the Company Mr. Goenka gave an assurance on the basis that he has been authorized to do so by the Board of Directors. 15. In the absence of any authority to the Chairman by the Board of Directors to act for and on behalf of the company, the assurance given by him to the respondents would not bind the company, nor it will create a binding agreement between the parties, namely, Respondents 1 and 2 and the company to permit the respondents to remain in possession even after the death of Shri Agarwalla, of the flat in Sonmarg. Apart from this, the Board of Directors itself could exercise the powers in accordance with the memorandum of association or the articles of the company. Any power exercised beyond the memorandum or the articles of the company would not bind the company. Any assurance given by the Board of Directors either should be authorised object of the company by the memorandum of association or the articles of the company or its purpose should be reasonably ancillary or incidental to carrying on the companies business. Evidence produced on record indicates that agreement was entered into between the company and husband of the respondent No. 1 regarding Blue Heaven flat. Late Shri Agarwalla was old employee of the company since 1971. He expired on 2.11.1992 and assurance was given by the chairman to widow of ex employee with whom he had long standing relation, when he went to see her to console her on 4.11.92, barely two days after the death of Shri Agarwalla. Such evidence in our opinion irresistibly point, predominant, if not, the only consideration operating in the mind of chairman was to console the widow and to permit her to live in the flat for some time. The assurance given to respondents 1 and 2 by the chairman of the company has more at a gratuitous and compassionate flavour and less to do with the interest of the company in mind. Moreover, it is difficult to comprehend how the chairman could promise on behalf of the Company that the respondents will be permitted to remain in flat till delivery of flat of Blue Heavan, when he himself was not sure of the time the company would get the possession of the Blue Heaven flat.16. That apart, the act of the Chairman cannot be construed to be one done incidental to the business of the Company or as a matter of necessity. After the death of Shri Agarwalla on 2.11.1992, the respondents 1 and 2 remained in possession of the companys Sonmarg flat. Admittedly they were not in employment of the company nor company has authorized them to remain in possession of the same particularly after notice dated 9.11.1994 to vacate the premises and handover the possession to the company. The possession of the companys flat by the Respondents, after the service of notice to vacate the premises by the company, is wrongful withholding of the property of the company. The respondents by having wrongfully withheld the possession of the companys flat and not delivering the property to the company, have committed an offence. The interim order of the High Court dated 16.11.1998 in the civil suit filed by the appellant-Company does not wipe out the offence committed already for which criminal complaint was filed. Subsequent to that order, the possession may not be wrongful, but on the date of complaint and till the date of that order, the Respondents did wrongfully withhold that property, attracting the offence under Section 630(1). Having regard to the factual position of the case, we think that imposition of fine of Rupees One thousand each would be a proper punishment for wrongful withholding the Sonmarg flat. Accordingly, respondents 1 and 2 are sentenced to pay fine of Rupees one thousand each. We would like to make it clear that so long as order of the High Court dated 16.11.1998 in Civil Suit No.2391 of 1997 - M/s. Herdillia Chemicals Ltd. versus Smt. Manjula Agarwala and others, appointing the Court Receiver and delivering him symbolic possession, and actual possession as agent of Receiver to Respondent No.1 stands, no direction can be given under Section 630(2) for delivery of actual possession of Sonmarg flat to appellant. It is of course open to the petitioner to approach the Civil Court for suitable orders.
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In our opinion the decision of the High Court that Section 630 of the Companies Act being penal in nature, the proceeding thereunder cannot be construed to be a proceeding taken in due process of law, cannot beof civil suit for possession by the Company does not deprive the Company of the right to institute prosecution under the Companies Act and incidentally get an order for delivery of possession. It is stated that the civil suit was filed by way of abundant caution as well as to obtain reliefs which cannot cannot be granted by a Criminal Court trying an offence under Section 630. The next important question is whether the possession of respondents of the property belonging to the company, namely, the Sonmarg flat, after the death of Shri S.C. Agarwalla, is unlawful and unauthorized and therefore wrongful. Both the Courts, namely, the Court of Magistrate and the High Court on appreciation of the material placed before them have clearly held that after the death of Shri Agarwalla, on the basis of assurance given by the Chairman of the Board of Directors of theShri Goenka to Respondent No.1 the said flat is being occupied by theShri Agarwalla was old employee of the company since 1971. He expired on 2.11.1992 and assurance was given by the chairman to widow of ex employee with whom he had long standing relation, when he went to see her to console her on 4.11.92, barely two days after the death of Shri Agarwalla. Such evidence in our opinion irresistibly point, predominant, if not, the only consideration operating in the mind of chairman was to console the widow and to permit her to live in the flat for some time. The assurance given to respondents 1 and 2 by the chairman of the company has more at a gratuitous and compassionate flavour and less to do with the interest of the company in mind. Moreover, it is difficult to comprehend how the chairman could promise on behalf of the Company that the respondents will be permitted to remain in flat till delivery of flat of Blue Heavan, when he himself was not sure of the time the company would get the possession of the Blue Heaven flat.16. That apart, the act of the Chairman cannot be construed to be one done incidental to the business of the Company or as a matter of necessity. After the death of Shri Agarwalla on 2.11.1992, the respondents 1 and 2 remained in possession of the companys Sonmarg flat. Admittedly they were not in employment of the company nor company has authorized them to remain in possession of the same particularly after notice dated 9.11.1994 to vacate the premises and handover the possession to the company. The possession of the companys flat by the Respondents, after the service of notice to vacate the premises by the company, is wrongful withholding of the property of the company. The respondents by having wrongfully withheld the possession of the companys flat and not delivering the property to the company, have committed an offence. The interim order of the High Court dated 16.11.1998 in the civil suit filed by thedoes not wipe out the offence committed already for which criminal complaint was filed. Subsequent to that order, the possession may not be wrongful, but on the date of complaint and till the date of that order, the Respondents did wrongfully withhold that property, attracting the offence under Section 630(1). Having regard to the factual position of the case, we think that imposition of fine of Rupees One thousand each would be a proper punishment for wrongful withholding the Sonmarg flat. Accordingly, respondents 1 and 2 are sentenced to pay fine of Rupees one thousand each. We would like to make it clear that so long as order of the High Court dated 16.11.1998 in Civil Suit No.2391 of 1997M/s. Herdillia Chemicals Ltd. versus Smt. Manjula Agarwala and others, appointing the Court Receiver and delivering him symbolic possession, and actual possession as agent of Receiver to Respondent No.1 stands, no direction can be given under Section 630(2) for delivery of actual possession of Sonmarg flat to appellant. It is of course open to the petitioner to approach the Civil Court for suitable orders.
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ALI HUSSAIN (D) THR. LRS Vs. RABIYA | power of attorney is not executed by her?2. Whether burden/onus of proof lies on the transferee when transferor totally denies execution of the deed by himself? If so, its effect?7. The High Court after hearing the parties proceeded on the premise that the plaintiff-first respondent was the pardanasheen illiterate lady and taking note of the judgment of this Court in Mst. Kharbuja Kuer Vs. Jangbahadur Rai and Others AIR 1963 SC 1203 , relying on the judgment of the Privy Council (Farid-Un-Nisa(Plaintiff) Vs. Mukhtar Ahmad and Another(Defendants) AIR 1925 PC 204) held that burden of proof in such a case rest, not with those who attack, but with those who found upon the deed, and the proof must go so far as to show affirmatively and conclusively that the deed was not only executed by, but was explained to, and was really understood by the grantor.8. The High Court held that the burden to prove that the alleged power of attorney is not a result of fraud and misrepresentation lie on the shoulder of the appellant-defendant because they are the beneficiaries and the trial Court and the first Appellate Court has committed a manifest error in shifting the burden on the shoulders of the plaintiff-first respondent and accordingly set aside the judgment and decree of the Courts below and remitted the matter back to the trial Judge to decide the suit afresh in view of the evidence available on record taking note of the observations made by the High Court in the impugned judgment dated 18 th August, 2008 which is a subject matter of challenge at the instance of the appellant-defendant no. 1 before us.9. This Court, while issuing notice on 14 th November, 2008 stayed the operation of the impugned judgment dated 18 th August, 2008.10. Learned counsel for the appellants submits that the very foundation on which the High Court has proceeded that the plaintiff-first respondent was a pardanasheen illiterate lady and shifting the burden of proof on the shoulder of the appellant-first defendant to establish that the document was explained to the plaintiff-first respondent and she understood it and thereafter transaction was entered into, is against the pleadings on record. From the perusal of the copy of the plaint annexure P/1 on record filed by the plaintiff-first respondent, it is nowhere pleaded that she was a pardanasheen illiterate lady and in absence whereof, the very proposition which has been examined by the High Court under the impugned judgment is unsustainable and so far as the issues which are framed by the trial Judge on the basis of the pleadings on record, all have been negated against the plaintiff-first respondent and in the given circumstances, the finding recorded by the High Court in remitting the matter to the trial Judge to revisit the same on the basis of principles laid down deserves to be interfered by this Court.11. Per contra, learned counsel for the respondents, while supporting the finding recorded by the High Court under the impugned judgment, submits that it is indisputed fact that the plaintiff-first respondent is a pardanasheen illiterate lady and still the case was proceeded with the burden of proof on her shoulders to establish that the power of attorney executed by the plaintiff in favour of defendant-appellant was a forged document was a patent error of law. In the given circumstances, the burden of proof was upon the defendant no.1-appellant to establish that the registered power of attorney executed on 25 th April, 1995 was a genuine document and only thereupon the onus could have been shifted to the plaintiff-first respondent and this is an apparent manifest error which was committed by the trial Judge but noticed by the High Court in the impugned judgment and it needs no further interference by this Court.12. We have heard learned counsel for the parties and with their assistance perused the material available on record.13. The plaintiff-first respondent filed a Suit No. 155 of 1996 before the Civil Judge (J.D.), Roorkee. A copy of the plaint has been placed on record (Annexure P/1). On perusal of the plaint, it reveals that it has nowhere been pleaded that the plaintiff-first respondent is a pardanasheen illiterate lady. In the ordinary course the burden of proof rest, on who attack. On the contrary, it was pleaded in the plaint that defendant nos.1 and 3 are the sons of her uncle Mangta and defendant no. 2 is the wife of defendant no. 1 and they hatched a conspiracy to grab the land of the plaintiff-first respondent and with connivance, the power of attorney was prepared & registered on 25 th April, 1995 in the registry office, in the name of the plaintiff and pursuant thereto, suit land was sold by a registered sale deed. On the basis of pleadings on record, the above-mentioned eight issues were framed on which both the parties have adduced oral and documentary evidence and the trial Judge, after considering the evidence, dismissed the suit vide judgment and decree dated 19 th January, 2001 and that came to be affirmed on dismissal of the appeal filed at the instance of the plaintiff-first respondent dated 27 th August, 2001. It reveals from the record that without there being any factual foundation, the High Court, while admitting the appeal, framed two substantial questions of law in reference to which there was no supporting pleadings on record.14. We still, for our satisfaction have gone through the plaint placed on record at Annexure P/1 and we are unable to find the pleadings in support that she was a pardanasheen illiterate lady and was entitled for protection of law and the burden was on the defendant-appellant to prove that the alleged power of attorney was the result of fraud.15. After we have heard the parties, we are of the view that the High Court has committed a manifest apparent error in reversing the concurrent finding of the two Courts below and on this score the impugned judgment is not sustainable. | 1[ds]12. We have heard learned counsel for the parties and with their assistance perused the material available on record.13. The plaintiff-first respondent filed a Suit No. 155 of 1996 before the Civil Judge (J.D.), Roorkee. A copy of the plaint has been placed on record (Annexure P/1). On perusal of the plaint, it reveals that it has nowhere been pleaded that the plaintiff-first respondent is a pardanasheen illiterate lady. In the ordinary course the burden of proof rest, on who attack. On the contrary, it was pleaded in the plaint that defendant nos.1 and 3 are the sons of her uncle Mangta and defendant no. 2 is the wife of defendant no. 1 and they hatched a conspiracy to grab the land of the plaintiff-first respondent and with connivance, the power of attorney was prepared & registered on 25 th April, 1995 in the registry office, in the name of the plaintiff and pursuant thereto, suit land was sold by a registered sale deed. On the basis of pleadings on record, the above-mentioned eight issues were framed on which both the parties have adduced oral and documentary evidence and the trial Judge, after considering the evidence, dismissed the suit vide judgment and decree dated 19 th January, 2001 and that came to be affirmed on dismissal of the appeal filed at the instance of the plaintiff-first respondent dated 27 th August, 2001. It reveals from the record that without there being any factual foundation, the High Court, while admitting the appeal, framed two substantial questions of law in reference to which there was no supporting pleadings on record.14. We still, for our satisfaction have gone through the plaint placed on record at Annexure P/1 and we are unable to find the pleadings in support that she was a pardanasheen illiterate lady and was entitled for protection of law and the burden was on the defendant-appellant to prove that the alleged power of attorney was the result of fraud.15. After we have heard the parties, we are of the view that the High Court has committed a manifest apparent error in reversing the concurrent finding of the two Courts below and on this score the impugned judgment is not sustainable. | 1 | 1,793 | 410 | ### Instruction:
Predict whether the case will result in an affirmative (1) or negative (0) decision for the appeal, and then provide a thorough explanation using key sentences to support your prediction.
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power of attorney is not executed by her?2. Whether burden/onus of proof lies on the transferee when transferor totally denies execution of the deed by himself? If so, its effect?7. The High Court after hearing the parties proceeded on the premise that the plaintiff-first respondent was the pardanasheen illiterate lady and taking note of the judgment of this Court in Mst. Kharbuja Kuer Vs. Jangbahadur Rai and Others AIR 1963 SC 1203 , relying on the judgment of the Privy Council (Farid-Un-Nisa(Plaintiff) Vs. Mukhtar Ahmad and Another(Defendants) AIR 1925 PC 204) held that burden of proof in such a case rest, not with those who attack, but with those who found upon the deed, and the proof must go so far as to show affirmatively and conclusively that the deed was not only executed by, but was explained to, and was really understood by the grantor.8. The High Court held that the burden to prove that the alleged power of attorney is not a result of fraud and misrepresentation lie on the shoulder of the appellant-defendant because they are the beneficiaries and the trial Court and the first Appellate Court has committed a manifest error in shifting the burden on the shoulders of the plaintiff-first respondent and accordingly set aside the judgment and decree of the Courts below and remitted the matter back to the trial Judge to decide the suit afresh in view of the evidence available on record taking note of the observations made by the High Court in the impugned judgment dated 18 th August, 2008 which is a subject matter of challenge at the instance of the appellant-defendant no. 1 before us.9. This Court, while issuing notice on 14 th November, 2008 stayed the operation of the impugned judgment dated 18 th August, 2008.10. Learned counsel for the appellants submits that the very foundation on which the High Court has proceeded that the plaintiff-first respondent was a pardanasheen illiterate lady and shifting the burden of proof on the shoulder of the appellant-first defendant to establish that the document was explained to the plaintiff-first respondent and she understood it and thereafter transaction was entered into, is against the pleadings on record. From the perusal of the copy of the plaint annexure P/1 on record filed by the plaintiff-first respondent, it is nowhere pleaded that she was a pardanasheen illiterate lady and in absence whereof, the very proposition which has been examined by the High Court under the impugned judgment is unsustainable and so far as the issues which are framed by the trial Judge on the basis of the pleadings on record, all have been negated against the plaintiff-first respondent and in the given circumstances, the finding recorded by the High Court in remitting the matter to the trial Judge to revisit the same on the basis of principles laid down deserves to be interfered by this Court.11. Per contra, learned counsel for the respondents, while supporting the finding recorded by the High Court under the impugned judgment, submits that it is indisputed fact that the plaintiff-first respondent is a pardanasheen illiterate lady and still the case was proceeded with the burden of proof on her shoulders to establish that the power of attorney executed by the plaintiff in favour of defendant-appellant was a forged document was a patent error of law. In the given circumstances, the burden of proof was upon the defendant no.1-appellant to establish that the registered power of attorney executed on 25 th April, 1995 was a genuine document and only thereupon the onus could have been shifted to the plaintiff-first respondent and this is an apparent manifest error which was committed by the trial Judge but noticed by the High Court in the impugned judgment and it needs no further interference by this Court.12. We have heard learned counsel for the parties and with their assistance perused the material available on record.13. The plaintiff-first respondent filed a Suit No. 155 of 1996 before the Civil Judge (J.D.), Roorkee. A copy of the plaint has been placed on record (Annexure P/1). On perusal of the plaint, it reveals that it has nowhere been pleaded that the plaintiff-first respondent is a pardanasheen illiterate lady. In the ordinary course the burden of proof rest, on who attack. On the contrary, it was pleaded in the plaint that defendant nos.1 and 3 are the sons of her uncle Mangta and defendant no. 2 is the wife of defendant no. 1 and they hatched a conspiracy to grab the land of the plaintiff-first respondent and with connivance, the power of attorney was prepared & registered on 25 th April, 1995 in the registry office, in the name of the plaintiff and pursuant thereto, suit land was sold by a registered sale deed. On the basis of pleadings on record, the above-mentioned eight issues were framed on which both the parties have adduced oral and documentary evidence and the trial Judge, after considering the evidence, dismissed the suit vide judgment and decree dated 19 th January, 2001 and that came to be affirmed on dismissal of the appeal filed at the instance of the plaintiff-first respondent dated 27 th August, 2001. It reveals from the record that without there being any factual foundation, the High Court, while admitting the appeal, framed two substantial questions of law in reference to which there was no supporting pleadings on record.14. We still, for our satisfaction have gone through the plaint placed on record at Annexure P/1 and we are unable to find the pleadings in support that she was a pardanasheen illiterate lady and was entitled for protection of law and the burden was on the defendant-appellant to prove that the alleged power of attorney was the result of fraud.15. After we have heard the parties, we are of the view that the High Court has committed a manifest apparent error in reversing the concurrent finding of the two Courts below and on this score the impugned judgment is not sustainable.
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12. We have heard learned counsel for the parties and with their assistance perused the material available on record.13. The plaintiff-first respondent filed a Suit No. 155 of 1996 before the Civil Judge (J.D.), Roorkee. A copy of the plaint has been placed on record (Annexure P/1). On perusal of the plaint, it reveals that it has nowhere been pleaded that the plaintiff-first respondent is a pardanasheen illiterate lady. In the ordinary course the burden of proof rest, on who attack. On the contrary, it was pleaded in the plaint that defendant nos.1 and 3 are the sons of her uncle Mangta and defendant no. 2 is the wife of defendant no. 1 and they hatched a conspiracy to grab the land of the plaintiff-first respondent and with connivance, the power of attorney was prepared & registered on 25 th April, 1995 in the registry office, in the name of the plaintiff and pursuant thereto, suit land was sold by a registered sale deed. On the basis of pleadings on record, the above-mentioned eight issues were framed on which both the parties have adduced oral and documentary evidence and the trial Judge, after considering the evidence, dismissed the suit vide judgment and decree dated 19 th January, 2001 and that came to be affirmed on dismissal of the appeal filed at the instance of the plaintiff-first respondent dated 27 th August, 2001. It reveals from the record that without there being any factual foundation, the High Court, while admitting the appeal, framed two substantial questions of law in reference to which there was no supporting pleadings on record.14. We still, for our satisfaction have gone through the plaint placed on record at Annexure P/1 and we are unable to find the pleadings in support that she was a pardanasheen illiterate lady and was entitled for protection of law and the burden was on the defendant-appellant to prove that the alleged power of attorney was the result of fraud.15. After we have heard the parties, we are of the view that the High Court has committed a manifest apparent error in reversing the concurrent finding of the two Courts below and on this score the impugned judgment is not sustainable.
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State of Maharashtra Vs. Purushottam Dashrath Borate & Another | where he had kept the articles of deceased on 3/11/2007 itself, there was no reason why he would wait for a period of one day i.e. till 4/11/2007 to show where the said dupatta was kept. Secondly, it has been contended that the said dupatta was recovered from the open space which was accessible to the public. Both these submissions cannot be accepted. It has to be noted that so far as the recovery of articles at the instance of accused No.1 is concerned, they were made before he was formally arrested and taken in custody on 3/11/2007 at 11.30 A.M. Possibly, during interrogation, after he was taken in custody, he must have disclosed the place where he had thrown the dupatta. Secondly, the dupatta was thrown behind the bushes and, as such, it cannot be said that this place was accessible to the public at large. Thirdly, it has to be noted that the said dupatta was thrown by the accused after coming from the place where they had committed the offence and while going towards house of P.W. 11 - Sagar Bidkar. The said dupatta, therefore, was thrown while returning and it was on their way while they were going towards the house of P.W. 11. Therefore, the said submission is not acceptable.110. The learned Counsel appearing on behalf of the appellants/accused also challenged the veracity of evidence of P.W. 12 - Gaursunder Prasad and P.W.13 - Sudhakumari Gaursunder. He has pointed out how the evidence given by P.W.12 and 13 was not probable and also commented on the conduct of P.W.12. We are unable to accept the said submission. P.W. 12 has given reliable, cogent and trustworthy evidence and his conduct is most natural of taking the child to the ground floor to see her (Jyotikumari) off which is perfectly a normal phenomena.111. It has been then contended that there was discrepancy in the IMEI Number and Model Number of the mobile of the deceased Jyotikumari. This submission is also without any merit. The Nodal Officer of Airtel Company viz P.W. 29 - Ganesh Pawar has given an explanation that the first 14 digits are unique and the last digit is always zero and, therefore, though last IMEI number was 2 it was shown as 0 in the records. Similarly, this witness (P.W.29) has stated that Model Number was 1100, though, in fact, the number is 1108. This also is a minor discrepancy and the said discrepancy could have been crept in because it is possible that last digit might have been read as "0" instead of "8". The model number is found inside the mobile and it is written in very small numbers and he might have to stretched his eyes to see the said model number which is written next to IMEI number. It is possible that witness might not have properly noticed the last digit 8 and might have mentioned it as 0. The said discrepancy, therefore, cannot be said to be material discrepancy to discard the evidence in respect of recovery of mobile phone at the instance of accused No.2.112. It has been then contended that there was no material on record to indicate that the deceased was raped. It has been submitted that there was no injury to her private parts and more particularly there was no injury found on the Labia Majora and Labia Minora. It has been submitted that P.W. 16 - Dr Madhav Waghmare who performed post-mortem, initially did not give opinion that the deceased was raped before she was murdered and the said opinion was given only after CA report was received. It has been submitted that the doctor had given an interview to the newspaper in which he had stated that he had not noticed any signs of rape on the victim. There is no merit in the said submission. Doctor (P.W.16) who performed the postmortem has clearly stated that he had suspected that the deceased was raped and then murdered. However, he thought it fit to obtain CA report and deferred his opinion till the receipt of CA report and only after CA report was received, he has given his opinion about rape. Secondly, mere absence of injury on private parts cannot be a ground for coming to the conclusion that there is no rape. If a victim is threatened and does not offer resistance, even in such cases no injuries are found on private parts.The victim was taken to a remote and uninhabited place. Two grievous injuries were found on her wrist. A blade was recovered from the spot. It is highly probable that she might have been threatened with a blade or some other instrument and, therefore, she might not have offered resistance which would explain absence of injuries on her private parts. It has also been contended that so far as the vehicle is concerned, P.W. 4 - Hanumant Chavan has admitted that there were no blood stains in the car. It has also been contended that there was no corroborative evidence to prove that the sheets which were recovered from the car which are at Exhibits 67 to 69 are true and correct since the truthfulness of the said sheets was not verified by the Company. In our view, this can hardly be called as material since it has been established that the victim was in the car along with driver accused No.1 Purushottam and one other person viz Pradeep - accused No.2 and this was witnessed by P.W.12. Her presence in the car also has been corroborated by P.W. 14 - Jeevan Baral who has heard the victim taking names of accused Nos.1 and 2. As we have pointed out earlier that the prosecution has to establish its case beyond the reasonable doubt and the said expression does not mean that there should be absence of doubt and, at the same time, doubt which is raised should not be fanciful and should not be in the form of conjectures and surmises. | 1[ds]The learned Counselhas urged that an opportunity was not given to the accused of being heard and, as a result, they were deprived of their right of free and fair trial.In our view, the said submission cannot be accepted. It is a matter of record that advocate Mr Kawchale who was engaged by the accused has effectively represented the accused and had conducted the trial andnumber of witnesses. However, during pendency of the trial on account of the order passed by the Bar Council of MaharashtraGoa, his Sanad was suspended. He has preferred appropriate proceedings challenging the said order passed by the Bar Council and the said proceedings are pending. He, however, obtained discharge from the Trial Court in June 2011. The accused, therefore, were aware that they had to engage another advocate in June, 2011 itself. Pursuant to the application filed by the accused, this Court had expedited hearing of the trial and had further directed the Trial Court to dispose of the trial within a time bound schedule. Thereafter, accused engaged a new advocate who filed histhereafter, immediately filed an application under section 311 of the Cr.P.C for recalling of allthe witnesses who were alreadyby his erstwhile advocate appointed by the accused. This application was allowed by the Sessions Court and an order was passed after recalling of the witnesses who wereby Mr. Kawchale. The matter was thereafter kept for hearing on 6/8/2011. On that date the matter was adjourned to 22/8/2011. On the adjourned date, application was made seeking time tothe witnesses. The Sessions Court allowed the application and granted time till 15/9/2011, though High Court had expedited hearing of the trial. Again on that date, an application was made for further adjournment. This application was rejected by a detailed order. However, the Court adjourned the matter to 16/9/2011. In our view, therefore, sufficient time was given to the new advocate who was appointed by the accused and it cannot be said that there was any breach of principles of natural justice or breach of right of fair hearing and trial of the accused. Interestingly, the accused, during the course of their arguments on sentence before the Trial Court, had sought permission to appoint Mr. Kawchale to argue their case. The submissions made by the learned Counsel for the accused, therefore, cannot be accepted and the said submission has been rightly rejected by the Trial Court. In our view, therefore, no prejudice has been caused to the accused on account of refusal by the Trial Court to grant further adjournment. It is an admitted position that the said order refusing to grant adjournment was not challenged by the accused before the appropriateour view, since the order refusing adjournment was not challenged further by the accused, it is not now open for the accused to challenge the finding or sentence recorded by the Trial Court after the trial was over in appeal. As noted by us earlier, no prejudice is caused to the accused by virtue of the order refusing to grant adjournment to the accused. It has to be noted here that application filed by a new advocate engaged by the accused for recalling all witnesses was allowed and all these witnesses were again permitted to beby their new advocate. Therefore, it cannot be said that there was failure of justice on account of refusal to grant adjournment to the accused. Ratio of the judgment in Mohammad Hussein vs State (2012) 2 SCC 584 , in our view, therefore, would not apply to the facts of the presenthas stated in his evidence that in his opinion probable cause of death was shock and haemorrhage due to grievous injury to vital organs with skull fracture involving frontal, left temporal, parietal bone with laceration to brain with fracture ribs 2, 3, 4 right lung ruptured with strangulation. He has also observed that strangulation made have been committed by overpowering the victim suddenly from behind by using rope with hands. This witness (P.W.16) was initiallyby Mr. Kawchale and several suggestions were made regarding injuries which were caused and it was suggested that these injuries could have been caused on account of natural causes or accident. The new advocate Mr. A.R. Patil, who was appointed, however, did not seriously dispute that the death was homicidal. In our view, therefore, the prosecution has established that death of deceased Jyotikumari was homicidal and unnatural. The said question is, therefore, answered in the affirmative.In the present case, prosecution has examined 29 witnesses and the entire evidence is essentially circumstantial evidence. Before taking into consideration the rival submissions, It has to be kept in mind that in a case where evidence is of a circumstantial nature, the circumstances from which the conclusion of guilt is to be drawn are, in the first instance, to be fully established and all the facts so established should be consistent only with the hypothesis of the guilt of the accused. Secondly, the circumstances should be of a conclusive nature, and they should be such as to exclude every hypothesis but the one proposed to be proved. To put it in other words, there must be a chain of evidence so complete that it will not leave any reasonable ground for drawing a conclusion consistent with innocence of the accused and it must be such as to show that within all human probability the act must have been done by the accused.In our view, after having perused the evidence, prosecution has established the chain of circumstances beyond the reasonable doubt for the following reasons.Testimony of P.W. 12 is corroborated in material particulars by his wife P.W. 13Sudhakumari Gaursunder. His wife has reiterated the sequence of events which had taken place on 1/11/2007 from the point of time where the deceased had received "missed call" from accused No.1 to the point where the dead body of deceased was identified by this witness P.W.13 and her husband and also in respect of identification of the accused. P.W. 13 also has beeninitially by advocate Mr. Kawchale and then by Advocate Mr. A.R. Patil. Both the advocates for the accusedthe witness at length. All the suggestions made by advocates for the accused have been denied by this witness. Prosecution, therefore, has established the circumstance of the deceased being last seen in the company of accused Nos.1 and 2 which was proximate in point of time prior to her death. P.W. 12 has established that accused Nos.1 and 2 took the deceased in their cab and they were expected to drop her at her BPO office at Hinjewadi.69. P.W. 11Sagar Bidkar has stated in his evidence that accused Nos.1 and 2 were supposed to pick him up at about 10.45 P.M. He has stated that his Company had informed that accused No.1 was the driver of the cab and the details of the cab also were given to him and he has given those details in his evidence. P.W. 11 has further stated that accused No.1 did not come on time to pick him up and, therefore, he made telephone call to him. He has stated that accused No.1 informed him that he would be coming within a short time to pick him up. However, he did not come within 10/15 minutes and, therefore, he had called him again and, at that time, he has stated that at that time accused No.1 had told him that he had a flat tyre and, therefore, there was delay. P.W. 11 has stated that finally accused No.1 came to pick him up in white indica car bearingat 12.45 A.M. He has further stated that alongwith accused No.1, his friend accused No.2 Pradeep was also in the car and who was sitting on the backseat. When he inquired about Jyotikumari, accused No.1 told him that she had not come with them on that date. P.W. 11Sagar Bidkar has further stated in his evidence that, thereafter, accused No.1 took the cab to the BPO office at Hinjewadi and just before entering the gate, accused No.2 got down from the vehicle. He has further stated that after they entered the premises, accused No.1 persuaded him to make an entry in the roster register that the cab was late on account of flat tyre and, accordingly, he made that entry. He has identified his handwriting atwitness also wasinitially by Advocate Mr. Kawchale and later on by advocate Mr. A.R. Patil. Again, suggestions made to him by the Counsel for the accused were denied and the accused were not successful in creating any doubt regarding his testimony. P.W. 11, therefore, has corroborated the fact that on the fateful night, the accused No.1 was to first pick up Jyotikumari and, thereafter, pick him up. He has established that the accused No.1 did not come on time but came at 12.45 A.M. and gave false excuse that there was a flat tyre and, therefore, there was delay. He has further established that accused No.2 was also in the cab alongwith accused No.1 when they picked him up.70. The next witness who has been examined by the prosecution to establish the presence of the deceased in the cab from 10.15 P.M to 11.00 P.M is P.W. 14Jeevan Baral. He has stated in his evidence that he knew Jyotikumari since she was his childhood friend and they had studied in the same school and that on 1/11/2007, he had called her at 10.30 P.M. and had a long talk with her while she was going to the office in the office car. He has stated that he overheard the conversation between Jyotikumari and the driveraccused No.1 and when she had questioned the driver as to where he was taking the vehicle, he also overheard accused No.1 telling her that one person from Nigdi was to be picked up and, again, thereafter, conversation between the witness and the deceased continued and, thereafter, he again overheard the conversation between Jyotikumari and accused No.1 when she asked him why he had taken the car in the jungle. He also overheard the driver telling her that the condition of the road was not good and, therefore, he had taken another route. He has stated that he became suspicious because of the answers given by the driver and, therefore, he asked her whether she was alone in the car and Jyotikumari informed him that the friend of driver viz Pradeep was also in the car and, therefore, he should not worry. Again, thereafter, he overheard the conversation between the deceased and the driver and the deceased asked the driver why the car had stopped in the jungle and then he heard shout of Jyoti and she said "please what you are doing" and, thereafter, there was some loud noise and the phone was disconnected. This witness has, therefore, established that he had contacted Jyotikumari on 1/11/2007 and from 10.30 P.M to 11.00 P.M, she was in the office car which was driven by accused No.1 and in which accused No.2 was alsothis witness (P.W.14) has beenby Advocate Mr. Kawchale and Advocate Mr. A.R. Patil. In hishe admitted that there was love affair between him and Jyotikumari and he has further stated that he did not know the number of Wipro Company and the number of Sudhakumari or her husband. This witness (P.W.14) has beenat length on various aspects. However, in our view, no significant material has been brought on record. From the evidence of P.W. 12, P.W. 13 and P.W. 14, presence of the deceased Jyotikumari in the office car which was driven by accused No.1 and in which his friend accused No.2 Pradeep was present, has been established by the prosecution beyond the reasonable doubt.man Bodke has stated that Punkaj Bodake informed him about the dead body of one unknown lady lying on Northern side of theexpress highway in the area of Gahunje village. After receiving the call, he went to the spot and saw the dead body. He has also stated that the deceased was wearing yellow colour salwar and light saffron colour kurta and he has also mentioned about the pair of high heels of white colour lying nearby and also the injuries on her hand and onestone lying near by. He has stated that panchanama of the spot and of the dead body was made by the police. In theby Advocate Mr. Kawchale, the witness admitted that before the police he had stated that the deceased was wearing yellow colour kurta and light saffron colour salwar. He has also stated in thethat the house of the accused No.1Purshottam Borate is on Northern side of Express Highway and the houses of both the accused are situated at Village Gahunje. In thehowever, he has explained the reason why he had incorrectly mentioned the colour of the salwar and kurta to the police. He has stated inthat at that time he was frightened and was disturbed and while giving evidence in court he had given different colours of the clothes since he did not understand difference between salvar and kurta. P.W. 1Hiraman Bodke and P.W 8Punkaj Bodake have established that the dead body of Jyotikumari was found on the Northern side of theExpress Highway near village Gahunje and that the deceased was wearing yellow and saffron colour kurta and salwar. These witnesses, therefore, have corroborated testimony of P.W. 12 and P.W. 13 regarding the dress worn by Jyotikumari in the night of 1/11/2007 when she left the house and sat in the office car driven by accused No.1.74. After the dead body was discovered by P.W. 8Punkaj Bodake and a complaint was registered by P.W. 1Hiraman Bodke, the body was taken to the hospital and postmortem was performed. We have already noted that the doctor who performed the postmortem had given an opinion about cause of death and the said doctor also in his evidence has mentioned that he had suspected that the victim was raped before she was murdered. However, in order to confirm the said finding he had waited for the report of CA which is at Exhibits 166 and 167 and after reading the CA report, he had confirmed that the deceased was raped before she was murdered. From the evidence of P.W. 16Dr. Madhav Waghmare, prosecution has established that the death of Jyotikumari was homicidal and that she was raped before she was murdered.This witness (P.W.7) thereafter stated that PI Suryawanshi called one jeep and both the accused and panchas boarded the said jeep and the jeep proceeded as per the directions given by both the accused. He has stated that accused Borate pointed out one house and as per his direction the jeep was stopped in front of the said house and, thereafter, accused Borate entered his house in their presence and he went to his bed room and produced one finger ring, watch and SIM card. He has stated that these articles were kept by the police in one paper and wrapped and these articles were sealed and the panchanama was prepared which is atHe has stated that signatures of panchas were obtained on one label and the said label was affixed to the sealed articles and the panchanama was completed at the house of accused No.1Borate. He has stated that the finger ring was of gold and the watch was of Titan Company and it had a yellow dial and it was a ladies wrist watch and the SIM card was of Airtel Company. This witness (P.W.7) identified the seized articles in the Court. He has stated that, thereafter, accused No.2Kokade asked PI Suryawanshi to take the vehicle near one house and, thereafter accused and panchas entered the house. Accused No.2 thereafter went near a cupboard and opened the door and produced one mobile and a pair of ear rings. He has further stated that police collected those articles in one paper and they were wrapped and a seal was affixed on the said paper and his signature alongwith signature ofwas taken on the label which was affixed on the said articles. Panchanama of the said articles which were recovered at the instance of accused No.2 was prepared which is athas stated that the mobile handset was of Nokia Company and the model number of the said handset was 1100. He has further stated that ear rings were of gold. P.W. 7 identified the gold ear rings and Nokia handset which were produced in court. Again this witness wasat length by Advocate Mr. Kawchale and Advocate Mr. A.R. Patil. The suggestions put to him in thewere denied. P.W. 7Vijay Shirke, therefore, has established the recovery of articles belonging to the deceased which were worn by her when she left the house at the instance of accused from their respective houses and these articles were later on identified by P.W. 12 and P.W.13,and sister of the deceased in the Police Station and thereafter in Court. P.W. 12 and 13 also had given description of the articles before identifying them. Prosecution, therefore, has clearly established that the articles belonging to the deceased were found to be in possession of accused Nos.1 and 2 on the next day i.e. on 3/11/2007, one day after the death of Jyotikumari. Prosecution has established that these articles which were recovered at the instance of the accused were worn by the deceased Jyotikumari which fact has been established by identification of the articles by P.W. 12Gaursunder and P.W. 13Sudhakumari. This circumstance, therefore, further establishes that after committing rape and murder of the deceased, the accused had removed the articles from her body and had concealed them in their houses.77. One other circumstance is the recovery of Odhani at the instance of accused No.1. P.W. 15Ankush Tumkar in his evidence has stated that on 4/11/2007, he had accompanied thePappu Yeole and accused Purushottam Borate who had stated that he would show the place where he had thrown the Odhani and purse of Jyotikumari. Accordingly, he alongwithaccused Purushottam and PI Patil went in a jeep and the accused asked them to take the jeep to Somatne Phata. He has stated that at a particular place accused went to the bushes and produced one Odhani from bushes which was saffron in colour and the said Odhani was accordingly seized under seizure memo and it was wrapped in paper and sealed. His signature was taken on label alongwith signature ofand PI Patil and thereafter it was affixed to the article which was seized. The accused then directed the jeep to be taken near the bridge and, thereafter, when the jeep stopped near the bridge, he stated that the purse was thrown from the bridge. This witness (P.W.15) has stated that 2 to 3 fishermen were asked to take search in the water of the river. However, purse was not found. The witness identified the seized Odhani before the Court. The panchanama in respect of seizure of Odhani was proved atThis is one other circumstance which establishes recovery of Odhani at the instance of accused No.1 which belonged to Jyotikumari. This Odhani also has been identified by P.W.12 and 13 as the same Odhani which was worn by the deceased Jyotikumari and they have also stated in their evidence that the deceased was wearing this Odhani when she left the house.78. Prosecution has then established that P.W. 12 and P.W. 13,and sister of the deceased identified Odhani which was seized at the instance of accused No.1. P.W. 26Sanjay Bodake has stated that he alongwith his friend Sattyawan Bodake were introduced with two persons viz Gaursunder Prasad and Sudhakumari and PSI showed them one sealed packet and they verified that the seal was intact and it was opened in their presence and in the said packet there was saffron Odhani on which there were blood stains and white stains. He has stated that Gaursunder and Sudhakumari identified the said Odhani as belonging to Jyotikumari Chaudhary. After it was identified by P.W.12 and 13, it was again kept in another packet and the packet was sealed and labeled and panchanama at4. Results of the CA reports establish that deceased Jyotikumari, before she was murdered, was raped and semen of accused Nos.1 and 2 was found on her Odhani and clothes and also in the vaginal swab which was taken by the doctor who performed the postmortem. CA reports, therefore, establish that the deceased was raped and semen of accused Nos.1 and 2 was found in the vaginal swab and also on the clothes which were worn by her.85. The other circumstance which has been established by the prosecution is the scratch material which was found in ligature mark on the neck of the deceased which tallies with the Odhani belonging to the deceased which was recovered at the instance of accused No.1.is the CA report in respect of Odhani which was sent to CA.and 222 clearly establish that ligature mark and the material which was found on the ligature mark indicated that the Odhani which was atand the fiber which was detected on the ligature mark tallies with the fiber cloth frombecause name of P.W. 10 has been mentioned in the sheets, it cannot be established that he was driving the vehicle or had driven the vehicle duringon three days in view of the other evidence which has come on record. P.W. 10 has also established that the vehicle was given to accused No.1 on 1/11/2007 at 8.30 P.M.88. Prosecution has then examined P.W. 9Bashir Dastagir Shaikh for the purpose of establishing the presence of accused No.2 alongwith accused No.1 in the vehicle on that day. P.W.9 in his evidence has stated that he is having chicken shop and it is known as Bashir Chicken Centre. He has stated that he knew accused No.2 Pradeep since he resides near his house. He identified accused Nos 1 and 2. He has stated that on the date of the incident, accused No.1 was a driver on the Indica Car, number of which was mentioned by him in the evidence. He has stated that at about 8.00 to 8.30 P.M., he had purchased certain medicines and he alongwith Rahul and accused Pradeep Kokade were talking with each other with accused No.1 Purushottam Borate came in Indica Car and at that time he was alone in the vehicle and he picked up Pradeep alongwith him and went away. In thethis witness (P.W.9) has admitted that he is not conversant with the English language and he could neither read nor write English. He also admitted that he did not know Marathi and could not read or write in Marathi. This witness could not read the number which was written by the Counsel for the accused. The Trial Court, however, in our view, has rightly relied on his evidence of having seen accused No.1 driving Indica car and accused No.2 accompanying accused No.1 in the said car at 8.30 P.M. on 1/11/2007. Merely because this witness was unable to read the number which was written by the Counsel for the accused that cannot be a ground for discarding his entire testimony. It is possible that this witness may have made improvement regarding number of Indica Car, however, this witness who was a friend of accused Nos.1 and 2 had no reason to give false evidence that accused Nos.1 and 2 were seen by him at 8.30 P.M. in the night when accused No.1 was driving a white Indica Car. He has also stated that the number plate was yellow. Therefore, even if the witness may not have remembered number of the said car, he has given rest of the details which further establish another chain in the chain of circumstances.89. The other circumstance which establishes that accused No.1 was driving the vehicle is the evidence of P.W. 17Amol Ramchandra Mugade has stated that he joined the service at Denta Force Company as security and was sent to Wipro Company at Hinjewadi as Security Supervisor. He has further stated that on 1/11/2007, he had a night shift and Anil Pawar, Bharat Shinde, Bhagwat Vanare, Ganesh Nikam were security guards. On 2/11/2007, at about 1.00 a.m., accused No.1Purushottam Borate, driver of Cab No.535 came to him with a roster of the vehicle. He told him that scheduled time to enter the vehicle was 11.00 P.M. and he was asked to show that the vehicle had entered at 11.00 P.M. He, however, refused to make a false entry and mentioned in the roster that the vehicle had arrived at 1.00 A.M. and he signed the roster atHe also identified accused No.1 in the Court. In thehe admitted that the work to check identity cards of Cab drivers was given to Bhagwat Vanare and he did not remember whether Purushottam Borate was having identity card of Wipro Company. No significant material has been brought on record in theof this witness and his testimony of having seen accused No.1 driving white Indica Car on the said day has been established. He has also brought on record the endorsement which was made by him about entry of the vehicle at 1.00 A.M. and also the request made by accused No.1 of making a false entry that vehicle had arrived at 11.00 P.M. and not at 1.00 A.M. He has also stated in his evidence that accused No.1 went away with the vehicle. The chain of circumstances in respect of accused No.1 being in possession of the vehicle from 8.30 P.M. on 1/11/2007 to 1.00 A.M. on 2/11/2007 when he dropped Sagar Bidkar (P.W.11) has been established by this witness and it is also established that accused No.1 took away the vehicle after the entry was made in the roster atProsecution has examined P.W. 29Ganesh Ramrao Pawar in order to bring on record call details in respect of mobile phone number 9960621120 used by deceased Jyotikumari Chaudhary and the call details are atP.W. 29 has stated that he was working as Assistant Nodal Officer of Airtel Company from June, 2007 and, at the relevant time, Vijay Shinde was working as Nodal Officer. He has stated that Vijay Shinde left the employment of Airtel Company and the authorized Nodal Officer is the only person who has access to the server. He has further stated that the information regarding incoming and outgoing calls of the Company is stored in the server of the Company and this information is automatically stored as soon as the calls are made and there is no human intervention in this process and for getting the information about incoming and outgoing calls, the authorized Nodal Officer has to enter the password in the server and then such information is retrieved. The password of the server of the Company is only with the authorized Nodal Officer of the Company and on the date of the incident, he was helping the Nodal Officer Shri Vijay Shinde. He has further stated that the Airtel Company was using the Oracle Data Base System for preserving the data of the phone calls and in the year 2008, there was no Indexing System with Airtel Company and, therefore, data of the phone call which used to be retrieved was not received in ascending and descending form and only from 2009 onwards, Indexing System was installed by the Airtel Company. He then stated that each mobile instrument has unique International Mobile Equipment Identity number (IMEI).He has then stated that IMEI number of cell phone is of 15 digits and out of that first 14 digits are unique to that mobile phone and the first 14 digits are automatically stored in the server of the Company and the 15th digit of IMEI number is stored as zero and that this system is uniform to all the service providers. He has then stated that on 29/1/2008, Airtel Company received a request letter from Talegaon Dabhade Police Station to provide name and address of the subscriber as well as call details of mobile phone No.9960621120. He has then stated that as per record of the Airtel Company, mobile phone number was in the name of Sudhakumari and the call details were then supplied to the police alongwith the covering letter. The aid covering letter is atand the certificate is atHe has stated that these call details were retrieved from the server in his presence by Shri Vijay Shinde who was the then Nodal Officer. He has then stated that entry at Serial No.16 atshowed that there was outgoing call from mobile phone of Jyotikumari to the mobile Phone No.9975558535 and duration of the call was eight seconds and this call was made atP.M on 1/11/2007 which tallies with the evidence given by P.W. 12 that Jyotikumari after she made call to the mobile which was in possession of accused No.1 informing him that she was coming down to get into the cab.The next entry at Serial No.6 from call details at Exhibit 90 is in respect of incoming call received by Jyotikumari from mobile phone No.9986233097 which is the phone number of Jeevan Baral (P.W.14). This witness (P.W.29) has stated that the phone call was made atP.M on 1/11/2007 and duration of that call was 406 seconds. He has then stated that entry at Sr No.17 from call details atis regarding incoming call to mobile phone of Jyotikumari from mobile phone of Jeevan Baral (P.W.14) and, according to the said entry, the call was made atP.M. on 1/11/2007 and duration of that call was 1422 second that is for about 23.7 minutes. This evidence therefore clearly corroborates with the evidence of P.W.14 that he had made two phone calls one at 10.30 P.M. and the other at 10.38 P.M. which lasted for about 24 minutes till about 11.00 P.M. when the phone call was switched off. In thehe has admitted that if a call is made on mobile phone then the signal first goes to the tower of the locality where the mobile phone holder is present and then it comes to the server. He has sated that, he is unable to tell location of main server of the Company in the year 2007 and inward and outward register is maintained in the Company which was not brought by him in the Court. He has admitted that letter fromPolice Officer dated 29/1/2008 was received by the Company and that entry at serial No.1 atshowed that there was incoming call on the mobile number of Jyotikumari from mobile number of Jeevan Baral (P.W.14). Despite the saidby the Counsel for the accused, testimony of this witness, in our view, has not been shaken at all.91. Prosecution has then examined P.W. 18Kishor Vasantrao Ghadge Naib Tahsilar for establishing test identification parade held by him on 14/1/2008 in which P.W.12 identified both the accused. Prosecution through evidence of P.W. 18 has brought on record identification parade panchanama atP.W. 18 during his deposition gave graphic account of what was happened on the date of test identification parade and the manner in which he has held the test identification parade. He has also deposed regarding the date on which he has received the request letter for holding the test identification parade in the instant case. Thus, evidence of P.W. 18 also explains the delay which had occurred in conducting the test identification parade and so also the error occurred in mentioning the date in the test identification parade panchanama. Though this witness was extensivelyon behalf of the defence, after careful perusal of the entire deposition of this witness, we are unable to persuade ourselves to accept that his evidence was shaken in any manner due to elicitation of any particular answer duringSince during the evidence of P.W. 12, it has already come on record that P.W. 12 by then was knowing the name of the driver of the said car and his friend namely Pradeep, we do not propose to dilate in detail about the evidence of P.W. 18 and propose to deal with the defence criticism while dealing with the relevant submissionscircumstance which also clearly establishes that there was tacit agreement between the two accused, can be seen from the evidence of P.W. 10 who has stated in his evidence that when he inquired about friend of accused No.1, he falsely informed him that his name was Shankar and thus tried to hide the identity of accused No.2. Accused Nos.1 and 2, therefore, in accordance with their prearranged plan committed an offence of abduction, rape and murder though they were seen by P.W. 12Gaursunder Prasad and though they were aware that victim Jyotikumari was speaking continuously on mobile phone with Jeevan Baral (P.W.14). All these circumstances, therefore clearly reveal that there was prearranged plan to commit the said offence and the accused were not deterred by the fact that they were seen by P.W. 12 or their names were disclosed by victim Jyotikumari to P.W. 14 when she was being abducted by them. Further inference about conspiracy can be drawn from the fact that after committing the said ghastly act of commission of abduction, rape and murder, they removed valuable articles of the deceased and divided the booty among themselves and kept the articles in their houses and disposed of other articles such as Odhani and purse after removing the valuables from the said purse.93. In our view, taking into consideration the ratio of the judgment of the Apex Court referred to in para 58 hereinabove and the settled law on this point, we have no manner of doubt that the prosecution has established the case of conspiracy beyond the reasonable doubt and, therefore, Trial Court has rightly convicted the appellants/accused for the offence of conspiracy independently and also alongwith other individual offences committed bythe present case Call Log record which has been brought on record at Exhibit 90 by P.W. 29 clearly reveals that P.W. 14 had made telephone call on mobile of victim and she was continuously talking to her while she was being driven by the accused No.1 in the Indica Car. P.W. 16Dr. Madhav Waghmare has stated in his evidence that age of the injury was about 13 hours prior to the postmortem. The postmortem was performed on 2/7/2007 at 3.30 P.M. and if the said time is calculated, it would reveal that the said injuries were caused to her on the previous night between 11.00 P.M. to 12.00 midnight. Call record and the evidence of P.W. 14 reveals that he was having talk with her between 10.30 P.M. To 11.00 P.M. on 1/11/2007. The conversation between the deceased and the witness P.W. 14 therefore was more proximate in point of time prior to her death which took place at about 12.00 midnight and, as such, conversation between the deceased and P.W. 14 on the mobile phone is relevant and admissible under the provisions of section 32 | 1 | 34,003 | 6,260 | ### Instruction:
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where he had kept the articles of deceased on 3/11/2007 itself, there was no reason why he would wait for a period of one day i.e. till 4/11/2007 to show where the said dupatta was kept. Secondly, it has been contended that the said dupatta was recovered from the open space which was accessible to the public. Both these submissions cannot be accepted. It has to be noted that so far as the recovery of articles at the instance of accused No.1 is concerned, they were made before he was formally arrested and taken in custody on 3/11/2007 at 11.30 A.M. Possibly, during interrogation, after he was taken in custody, he must have disclosed the place where he had thrown the dupatta. Secondly, the dupatta was thrown behind the bushes and, as such, it cannot be said that this place was accessible to the public at large. Thirdly, it has to be noted that the said dupatta was thrown by the accused after coming from the place where they had committed the offence and while going towards house of P.W. 11 - Sagar Bidkar. The said dupatta, therefore, was thrown while returning and it was on their way while they were going towards the house of P.W. 11. Therefore, the said submission is not acceptable.110. The learned Counsel appearing on behalf of the appellants/accused also challenged the veracity of evidence of P.W. 12 - Gaursunder Prasad and P.W.13 - Sudhakumari Gaursunder. He has pointed out how the evidence given by P.W.12 and 13 was not probable and also commented on the conduct of P.W.12. We are unable to accept the said submission. P.W. 12 has given reliable, cogent and trustworthy evidence and his conduct is most natural of taking the child to the ground floor to see her (Jyotikumari) off which is perfectly a normal phenomena.111. It has been then contended that there was discrepancy in the IMEI Number and Model Number of the mobile of the deceased Jyotikumari. This submission is also without any merit. The Nodal Officer of Airtel Company viz P.W. 29 - Ganesh Pawar has given an explanation that the first 14 digits are unique and the last digit is always zero and, therefore, though last IMEI number was 2 it was shown as 0 in the records. Similarly, this witness (P.W.29) has stated that Model Number was 1100, though, in fact, the number is 1108. This also is a minor discrepancy and the said discrepancy could have been crept in because it is possible that last digit might have been read as "0" instead of "8". The model number is found inside the mobile and it is written in very small numbers and he might have to stretched his eyes to see the said model number which is written next to IMEI number. It is possible that witness might not have properly noticed the last digit 8 and might have mentioned it as 0. The said discrepancy, therefore, cannot be said to be material discrepancy to discard the evidence in respect of recovery of mobile phone at the instance of accused No.2.112. It has been then contended that there was no material on record to indicate that the deceased was raped. It has been submitted that there was no injury to her private parts and more particularly there was no injury found on the Labia Majora and Labia Minora. It has been submitted that P.W. 16 - Dr Madhav Waghmare who performed post-mortem, initially did not give opinion that the deceased was raped before she was murdered and the said opinion was given only after CA report was received. It has been submitted that the doctor had given an interview to the newspaper in which he had stated that he had not noticed any signs of rape on the victim. There is no merit in the said submission. Doctor (P.W.16) who performed the postmortem has clearly stated that he had suspected that the deceased was raped and then murdered. However, he thought it fit to obtain CA report and deferred his opinion till the receipt of CA report and only after CA report was received, he has given his opinion about rape. Secondly, mere absence of injury on private parts cannot be a ground for coming to the conclusion that there is no rape. If a victim is threatened and does not offer resistance, even in such cases no injuries are found on private parts.The victim was taken to a remote and uninhabited place. Two grievous injuries were found on her wrist. A blade was recovered from the spot. It is highly probable that she might have been threatened with a blade or some other instrument and, therefore, she might not have offered resistance which would explain absence of injuries on her private parts. It has also been contended that so far as the vehicle is concerned, P.W. 4 - Hanumant Chavan has admitted that there were no blood stains in the car. It has also been contended that there was no corroborative evidence to prove that the sheets which were recovered from the car which are at Exhibits 67 to 69 are true and correct since the truthfulness of the said sheets was not verified by the Company. In our view, this can hardly be called as material since it has been established that the victim was in the car along with driver accused No.1 Purushottam and one other person viz Pradeep - accused No.2 and this was witnessed by P.W.12. Her presence in the car also has been corroborated by P.W. 14 - Jeevan Baral who has heard the victim taking names of accused Nos.1 and 2. As we have pointed out earlier that the prosecution has to establish its case beyond the reasonable doubt and the said expression does not mean that there should be absence of doubt and, at the same time, doubt which is raised should not be fanciful and should not be in the form of conjectures and surmises.
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down to get into the cab.The next entry at Serial No.6 from call details at Exhibit 90 is in respect of incoming call received by Jyotikumari from mobile phone No.9986233097 which is the phone number of Jeevan Baral (P.W.14). This witness (P.W.29) has stated that the phone call was made atP.M on 1/11/2007 and duration of that call was 406 seconds. He has then stated that entry at Sr No.17 from call details atis regarding incoming call to mobile phone of Jyotikumari from mobile phone of Jeevan Baral (P.W.14) and, according to the said entry, the call was made atP.M. on 1/11/2007 and duration of that call was 1422 second that is for about 23.7 minutes. This evidence therefore clearly corroborates with the evidence of P.W.14 that he had made two phone calls one at 10.30 P.M. and the other at 10.38 P.M. which lasted for about 24 minutes till about 11.00 P.M. when the phone call was switched off. In thehe has admitted that if a call is made on mobile phone then the signal first goes to the tower of the locality where the mobile phone holder is present and then it comes to the server. He has sated that, he is unable to tell location of main server of the Company in the year 2007 and inward and outward register is maintained in the Company which was not brought by him in the Court. He has admitted that letter fromPolice Officer dated 29/1/2008 was received by the Company and that entry at serial No.1 atshowed that there was incoming call on the mobile number of Jyotikumari from mobile number of Jeevan Baral (P.W.14). Despite the saidby the Counsel for the accused, testimony of this witness, in our view, has not been shaken at all.91. Prosecution has then examined P.W. 18Kishor Vasantrao Ghadge Naib Tahsilar for establishing test identification parade held by him on 14/1/2008 in which P.W.12 identified both the accused. Prosecution through evidence of P.W. 18 has brought on record identification parade panchanama atP.W. 18 during his deposition gave graphic account of what was happened on the date of test identification parade and the manner in which he has held the test identification parade. He has also deposed regarding the date on which he has received the request letter for holding the test identification parade in the instant case. Thus, evidence of P.W. 18 also explains the delay which had occurred in conducting the test identification parade and so also the error occurred in mentioning the date in the test identification parade panchanama. Though this witness was extensivelyon behalf of the defence, after careful perusal of the entire deposition of this witness, we are unable to persuade ourselves to accept that his evidence was shaken in any manner due to elicitation of any particular answer duringSince during the evidence of P.W. 12, it has already come on record that P.W. 12 by then was knowing the name of the driver of the said car and his friend namely Pradeep, we do not propose to dilate in detail about the evidence of P.W. 18 and propose to deal with the defence criticism while dealing with the relevant submissionscircumstance which also clearly establishes that there was tacit agreement between the two accused, can be seen from the evidence of P.W. 10 who has stated in his evidence that when he inquired about friend of accused No.1, he falsely informed him that his name was Shankar and thus tried to hide the identity of accused No.2. Accused Nos.1 and 2, therefore, in accordance with their prearranged plan committed an offence of abduction, rape and murder though they were seen by P.W. 12Gaursunder Prasad and though they were aware that victim Jyotikumari was speaking continuously on mobile phone with Jeevan Baral (P.W.14). All these circumstances, therefore clearly reveal that there was prearranged plan to commit the said offence and the accused were not deterred by the fact that they were seen by P.W. 12 or their names were disclosed by victim Jyotikumari to P.W. 14 when she was being abducted by them. Further inference about conspiracy can be drawn from the fact that after committing the said ghastly act of commission of abduction, rape and murder, they removed valuable articles of the deceased and divided the booty among themselves and kept the articles in their houses and disposed of other articles such as Odhani and purse after removing the valuables from the said purse.93. In our view, taking into consideration the ratio of the judgment of the Apex Court referred to in para 58 hereinabove and the settled law on this point, we have no manner of doubt that the prosecution has established the case of conspiracy beyond the reasonable doubt and, therefore, Trial Court has rightly convicted the appellants/accused for the offence of conspiracy independently and also alongwith other individual offences committed bythe present case Call Log record which has been brought on record at Exhibit 90 by P.W. 29 clearly reveals that P.W. 14 had made telephone call on mobile of victim and she was continuously talking to her while she was being driven by the accused No.1 in the Indica Car. P.W. 16Dr. Madhav Waghmare has stated in his evidence that age of the injury was about 13 hours prior to the postmortem. The postmortem was performed on 2/7/2007 at 3.30 P.M. and if the said time is calculated, it would reveal that the said injuries were caused to her on the previous night between 11.00 P.M. to 12.00 midnight. Call record and the evidence of P.W. 14 reveals that he was having talk with her between 10.30 P.M. To 11.00 P.M. on 1/11/2007. The conversation between the deceased and the witness P.W. 14 therefore was more proximate in point of time prior to her death which took place at about 12.00 midnight and, as such, conversation between the deceased and P.W. 14 on the mobile phone is relevant and admissible under the provisions of section 32
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M/S PRRSAAR THROUGH ITS PROPRIETOR VED PRAKASH GUPTA Vs. NATIONAL STOCK EXCHANGE OF INDIA LTD | 1. Appeal admitted.2. Heard learned counsel for the parties.3. This appeal takes exception to the order dated 20.02.2017 passed by the Securities Appellate Tribunal at Mumbai in Misc. Application No.49 of 2017 and in Appeal No.53 of 2017, whereby the Appellate Tribunal rejected the appeal preferred against the order dated 03.02.2017 passed by the Disciplinary Action Committee of National Stock Exchange of India Ltd. which found the appellant guilty of indulging in financial irregularities and misconduct in conduct of business, and for which a fine/penalty of Rs.10 lakhs with suspension from trading membership of the appellant for five trading days came to be imposed.4. The argument of the appellant before this Court is that the penalty/fine could be imposed only in the context of Circular dated 27.06.2013. The relevant part of the circular read thus:?19. Improper use of funds raised by placing of clients securities with bank/any other financial institutions viz. funds not used for respective client obligation/margins. Rs. 1,00,000/- or 0.1% of the value of misuse whichever is higher. Mis-utilization of clients? funds and/or securities.? Thus, the appropriate authority could not have issued suspension of trading membership of the appellant. Further, the authority could not have imposed penalty/fine more than quantified in the circular extracted above.5. The respondent, however, relied on the bye-laws, Chapter IV Rule 1, which reads thus:-?Disciplinary Jurisdiction(1) The relevant authority may expel or suspend and/or fine under censure and/or warn and/or withdraw any of the membership rights of a trading member if it be guilty of contravention, non-compliance, disobedience, disregard or evasion of any of the Bye Laws, Rules and Regulations of the Exchange or of any resolutions, orders, notices, directions or decisions or rulings of the Exchange or the relevant authority or of any other Committee or officer of the Exchange authorized in that behalf or of any conduct, proceeding or method of business which the relevant authority in its absolute discretion deems dishonourable, disgraceful or unbecoming a trading member of the Exchange or inconsistent with just and equitable principles of trade or detrimental to the interests, good name or welfare of the Exchange or prejudicial or subversive to its objections and purposes.? 6. The provision regarding suspension of business reads thus:?Suspension of Business:(8) The relevant authority may require a trading member to suspend its business in part or in whole:(a) Prejudicial Business: When in the opinion of the relevant authority, the trading member conducts business in a manner prejudicial to the Exchange by making purchases or sales of securities or offers to purchase or sell securities for the purpose of upsetting equilibrium of the market or brining about a condition of demoralization in which prices will not fairly reflect market value, or? It is then submitted that ample power is bestowed on the appropriate authority to suspend the trading membership of a member who indulges in prescribed misconduct. It is contended that no fault can be found with the order passed by the appropriate authority and has been rightly affirmed by the Appellate Tribunal.7. After considering the rival submissions, it is noticed that the appellant had specifically raised the issue about the appropriateness of the order suspending the trading membership of the appellant and also regarding the quantum of penalty imposed by the appropriate authority. That can be discerned from the contention recorded in paragraph 3 of the impugned order which, inter alia, reads thus:?... He submitted that the decision of the DAC of NSE is in violation of NSE Circular dated June 27, 2013, because, as per that circular suspending the trading is not contemplated for the violations allegedly committed by the appellant...? 8. The Appellate Tribunal, however, has not examined this contention but proceeded to reject the appeal on the specious ground that the penalty imposed by the appropriate authority cannot be said to be unreasonable or excessive. The argument of the appellant was that even though the appropriate authority can suspend the trading membership of the member indulging in misconduct, it can be resorted to only when it falls within the concerned Bye-law such as Bye-law 8(a) relied upon by the respondent - which envisages that the trading member must conduct business ?in a manner prejudicial to the Exchange? etc. Further, the penalty could not have exceeded an amount of Rs. 1 lakh or 0.1% of the value of misuse, whichever is higher. These arguments have not been dealt with by the Appellate Tribunal at all. | 1[ds]7. After considering the rival submissions, it is noticed that the appellant had specifically raised the issue about the appropriateness of the order suspending the trading membership of the appellant and also regarding the quantum of penalty imposed by the appropriate authority. That can be discerned from the contention recorded in paragraph 3 of the impugned order which, inter alia, reads thus:?... He submitted that the decision of the DAC of NSE is in violation of NSE Circular dated June 27, 2013, because, as per that circular suspending the trading is not contemplated for the violations allegedly committed by the appellant...?8. The Appellate Tribunal, however, has not examined this contention but proceeded to reject the appeal on the specious ground that the penalty imposed by the appropriate authority cannot be said to be unreasonable or excessive. The argument of the appellant was that even though the appropriate authority can suspend the trading membership of the member indulging in misconduct, it can be resorted to only when it falls within the concerned Bye-law such as Bye-law 8(a) relied upon by the respondent - which envisages that the trading member must conduct business ?in a manner prejudicial to the Exchange? etc. Further, the penalty could not have exceeded an amount of Rs. 1 lakh or 0.1% of the value of misuse, whichever is higher. These arguments have not been dealt with by the Appellate Tribunal at all. | 1 | 829 | 271 | ### 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. Appeal admitted.2. Heard learned counsel for the parties.3. This appeal takes exception to the order dated 20.02.2017 passed by the Securities Appellate Tribunal at Mumbai in Misc. Application No.49 of 2017 and in Appeal No.53 of 2017, whereby the Appellate Tribunal rejected the appeal preferred against the order dated 03.02.2017 passed by the Disciplinary Action Committee of National Stock Exchange of India Ltd. which found the appellant guilty of indulging in financial irregularities and misconduct in conduct of business, and for which a fine/penalty of Rs.10 lakhs with suspension from trading membership of the appellant for five trading days came to be imposed.4. The argument of the appellant before this Court is that the penalty/fine could be imposed only in the context of Circular dated 27.06.2013. The relevant part of the circular read thus:?19. Improper use of funds raised by placing of clients securities with bank/any other financial institutions viz. funds not used for respective client obligation/margins. Rs. 1,00,000/- or 0.1% of the value of misuse whichever is higher. Mis-utilization of clients? funds and/or securities.? Thus, the appropriate authority could not have issued suspension of trading membership of the appellant. Further, the authority could not have imposed penalty/fine more than quantified in the circular extracted above.5. The respondent, however, relied on the bye-laws, Chapter IV Rule 1, which reads thus:-?Disciplinary Jurisdiction(1) The relevant authority may expel or suspend and/or fine under censure and/or warn and/or withdraw any of the membership rights of a trading member if it be guilty of contravention, non-compliance, disobedience, disregard or evasion of any of the Bye Laws, Rules and Regulations of the Exchange or of any resolutions, orders, notices, directions or decisions or rulings of the Exchange or the relevant authority or of any other Committee or officer of the Exchange authorized in that behalf or of any conduct, proceeding or method of business which the relevant authority in its absolute discretion deems dishonourable, disgraceful or unbecoming a trading member of the Exchange or inconsistent with just and equitable principles of trade or detrimental to the interests, good name or welfare of the Exchange or prejudicial or subversive to its objections and purposes.? 6. The provision regarding suspension of business reads thus:?Suspension of Business:(8) The relevant authority may require a trading member to suspend its business in part or in whole:(a) Prejudicial Business: When in the opinion of the relevant authority, the trading member conducts business in a manner prejudicial to the Exchange by making purchases or sales of securities or offers to purchase or sell securities for the purpose of upsetting equilibrium of the market or brining about a condition of demoralization in which prices will not fairly reflect market value, or? It is then submitted that ample power is bestowed on the appropriate authority to suspend the trading membership of a member who indulges in prescribed misconduct. It is contended that no fault can be found with the order passed by the appropriate authority and has been rightly affirmed by the Appellate Tribunal.7. After considering the rival submissions, it is noticed that the appellant had specifically raised the issue about the appropriateness of the order suspending the trading membership of the appellant and also regarding the quantum of penalty imposed by the appropriate authority. That can be discerned from the contention recorded in paragraph 3 of the impugned order which, inter alia, reads thus:?... He submitted that the decision of the DAC of NSE is in violation of NSE Circular dated June 27, 2013, because, as per that circular suspending the trading is not contemplated for the violations allegedly committed by the appellant...? 8. The Appellate Tribunal, however, has not examined this contention but proceeded to reject the appeal on the specious ground that the penalty imposed by the appropriate authority cannot be said to be unreasonable or excessive. The argument of the appellant was that even though the appropriate authority can suspend the trading membership of the member indulging in misconduct, it can be resorted to only when it falls within the concerned Bye-law such as Bye-law 8(a) relied upon by the respondent - which envisages that the trading member must conduct business ?in a manner prejudicial to the Exchange? etc. Further, the penalty could not have exceeded an amount of Rs. 1 lakh or 0.1% of the value of misuse, whichever is higher. These arguments have not been dealt with by the Appellate Tribunal at all.
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7. After considering the rival submissions, it is noticed that the appellant had specifically raised the issue about the appropriateness of the order suspending the trading membership of the appellant and also regarding the quantum of penalty imposed by the appropriate authority. That can be discerned from the contention recorded in paragraph 3 of the impugned order which, inter alia, reads thus:?... He submitted that the decision of the DAC of NSE is in violation of NSE Circular dated June 27, 2013, because, as per that circular suspending the trading is not contemplated for the violations allegedly committed by the appellant...?8. The Appellate Tribunal, however, has not examined this contention but proceeded to reject the appeal on the specious ground that the penalty imposed by the appropriate authority cannot be said to be unreasonable or excessive. The argument of the appellant was that even though the appropriate authority can suspend the trading membership of the member indulging in misconduct, it can be resorted to only when it falls within the concerned Bye-law such as Bye-law 8(a) relied upon by the respondent - which envisages that the trading member must conduct business ?in a manner prejudicial to the Exchange? etc. Further, the penalty could not have exceeded an amount of Rs. 1 lakh or 0.1% of the value of misuse, whichever is higher. These arguments have not been dealt with by the Appellate Tribunal at all.
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Iridium India Telecom Ltd Vs. Motorola Incorporated & Others | of some relevance to the issue under consideration. In this case, the House of Lords examined the duty of those who issued a prospectus inviting investments from the general public and held that they were required to make a true and full disclosure of all the relevant facts. The House of Lords quoted with approval the observations made in the case of New Brunswick and Canada Railway Company Vs. Muggeridge Supra wherein it has been observed as follows :- .........those who issue a prospectus holding out to the public the great advantages which will accrue to persons who will take shares in a proposed undertaking, and inviting them to take shares on the faith of the representations therein contained, are bound to state everything with strict and scrupulous accuracy, and not only to abstain from stating as fact that which is not so, but to omit no one fact within their knowledge the existence of which might in any degree affect the nature, or extent, or quality of the privileges and advantages which the prospectus holds out as inducements to take shares. The House of Lords went on to observe that it is no answer to a person who has been deceived that he would have known the truth by proper inquiry. It would be apposite to reproduce here the observations made by the House of Lords on this aspect of the matter: But it appears to me that when once it is established that there has been any fraudulent misrepresentation or willful concealment by which a person has been induced to enter into a contract, it is no answer to his claim to be relieved from it to tell him that he might have known the truth by proper inquiry. He has a right to retort upon his objector, You, at least, who have stated what is untrue or have concealed the truth, for the purpose of drawing me into a contract, cannot accuse me of want of caution because I relied implicitly upon your fairness and honesty. I quite agree with the opinion of Lord Lyndhurst, in the case of Small Vs. Attwood (1), that where representations are made with respect to the nature and character of property which is to become the subject of purchase, affecting the value of that property, and those representations afterwards turn out to be incorrect and false, to the knowledge of the party making them, a foundation is laid for maintaining an action in a Court of common law to recover damages for the deceit so practiced; and in a Court of equity a foundation is laid for setting aside the contract which was founded upon that basis. And in the case of Dobell Vs. Stevens (2), to which he refers as an authority in support of the proposition, which was an action for deceit in falsely representing the amount of the business done in a public house, the purchaser was held to be entitled to recover damages, although the books were in the house, and he might have had access to them if he thought proper. Upon the whole case I think the decree of Lords Justices ought to be affirmed, and the appeal dismissed with costs. The aforesaid observations leave no manner of doubt that the appellants were entitled to an opportunity to prove the averments made in the complaint. They were entitled to establish that they have been deliberately induced into making huge investments on the basis of representations made by respondent No.1 and its representatives, which representations subsequently turned out to be completely false and fraudulent. The appellants were entitled to an opportunity to establish that respondent No.1 and its representatives were aware of the falsity of the representations at the time when they were made. The appellants have given elaborate details of the positive assertions made by respondent No.1 which were allegedly false to its knowledge. It is also claimed by the appellants that the respondent No.1 and its representatives willfully concealed facts which were material and ought to have been disclosed, but were intentionally withheld so as to deceive the appellant into advancing and expending a sum of Rs.500 Crores. As noticed earlier, both the appellants and the respondents have much to say in support of their respective view points. Which of the views is ultimately to be accepted, could only be decided when the parties have had the opportunities to place the entire materials before the Court. This Court has repeatedly held that power to quash proceedings at the initial stage have to be exercised sparingly with circumspection and in the rarest of the rare cases. The power is to be exercised ex debito justitiae. Such power can be exercised where a criminal proceeding is manifestly attended with malafide and have been instituted maliciously with ulterior motive. This inherent power ought not to be exercised to stifle a legitimate prosecution. In the present case, the parties are yet to place on the record the entire material in support of their claims. The issues involved are of considerable importance to the parties in particular, and the world of trade and commerce in general. 45. In such circumstances, in our opinion, the High Court ought to have refrained from indulging in detailed analysis of very complicated commercial documents and reaching any definite conclusions. In our opinion, the High Court clearly exceeded its jurisdiction in quashing the criminal proceeding in the peculiar facts and circumstances of this case. The High Court noticed that while exercising jurisdiction under Section 482 Cr.P.C. the complaint in its entirety will have to be examined on the basis of the allegations made therein. But the High Court has no authority or jurisdiction to go into the matter or examine its correctness. The allegations in the complaint will have to be accepted on the face of it and the truth or falsity cannot be entered into by the Court at this stage. Having said so, the High Court proceeded to do exactly the opposite. | 1[ds]32. The contours within which the High Court would exercise its jurisdiction to quash the criminal proceeding has been dilated upon, and well defined by this Court in a catena of judgments. We may make a reference here only to a few representative cases. In the case of Smt. Nagawwa Vs. Veeranna Supra considering the limits within which the Magistrate is required to conduct an inquiry under Section 202 of the Cr.P.C., this Court observed that the scope of such inquiry is (Para 4) extremely limitedlimited only to the ascertainment of the truth or falsehood of the allegations made in the complaint(i) on the materials placed by the complainant before the Court; (ii) for the limited purpose of finding out whether a prima facie case for issue of process has been made out; and (iii) for deciding the question purely from the point of view of the complainant without at all adverting to any defence that the case may have. In fact it is well settled that in proceedings under Section 202, the accused has got absolutely no locus standi and is not entitled to be heard on the question whether the process should be issued against him or not33. Keeping in view the aforesaid principles, we may now examine as to whether the High Court has adopted the correct approach while exercising its inherent power under Section 482 Cr.P.C. The High Court notices in extenso the facts as narrated above. Thereafter the High Court notices the submissions made on behalf of the parties. It was observed by the High Court that a company/corporation will not have the mens rea for commission of the offence under Section 415 IPC. The High Court relied on the observations made by this Court in the case of Kalpanath Rai Vs. State ((1997) 8 SCC 732 ) and distinguished the judgment in the case of M.V. Javali Vs. Mahajan Borewell & Co. ((1997) 8 SCC 72 ). It is held that a company being a juridical person cannot have the intention to deceive, which is the necessary mens rea for the offence of cheating. According to the High court, although a company can be a victim of deception, it can not be the perpetrator of deception. It can only be a natural person who is capable of having mens rea to commit the offence. According to the High Court, the same reasoning would also apply in respect of the offence of conspiracy which involves a guilty mind to do an illegal thing34. The judgments relied upon by the complainant are distinguished by the High Court, as they pertain to special provisions contained in different statutes such as, Income Tax Act, Essential Commodities Act, Food Adulteration Act and TADA Act. It is noticed that in Kalpanath Rai Vs. State Supra this Court was concerned with the provisions of TADA Act. The High Court was further of the opinion that Indian Penal Code does not contain any provision similar to the aforesaid acts. Since the offence of cheating under Section 415 and the offence of conspiracy under Section 120B can only be committed by a natural person, the word whoever cannot include in its sweep, a juridical person like a company. The High Court notices the judgment of the Calcutta High Court in the case of A.K. Khosla Vs. T.S. Venkatesan (1992 Crl. L.J. 1448) wherein it was held that there are two tests in respect of prosecution of a corporate body i.e. first being the test of mens era and the other being the mandatory sentence of imprisonment. However, no opinion has been expressed there upon by the High Court. In view of the aforesaid conclusions, the High Court has held that the complaint would not be maintainable against the respondent35. We are of the considered opinion that there is much substance in the submission of Mr. Jethmalani that virtually in all jurisdictions across the world governed by the rule of law, the companies and corporate houses can no longer claim immunity from criminal prosecution on the ground that they are incapable of possessing the necessary mens rea for the commission of criminal offences. The legal position in England and the United States has now crystallized to leave no manner of doubt that a corporation would be liable for crimes of intent38. From the above it becomes evident that a corporation is virtually in the same position as any individual and may be convicted of common law as well as statutory offences including those requiring mens rea. The criminal liability of a corporation would arise when an offence is committed in relation to the business of the corporation by a person or body of persons in control of its affairs. In such circumstances, it would be necessary to ascertain that the degree and control of the person or body of persons is so intense that a corporation may be said to think and act through the person or the body of persons. The position of law on this issue in Canada is almost the same. Mens rea is attributed to corporations on the principle of alter ego of the company40. These observations leave no manner of doubt that a company / corporation cannot escape liability for a criminal offence, merely because the punishment prescribed is that of imprisonment and fine. We are of the considered opinion that in view of the aforesaid Judgment of this Court, the conclusion reached by the High Court that the respondent could not have the necessary mens rea is clearly erroneous42. A bare perusal of the aforesaid section would show that it can be conveniently divided into two parts. The first part makes it necessary that the deception by the accused of the person deceived, must be fraudulent or dishonest. Such deception must induce the person deceived to: either (a) deliver property to any person; or (b) consent that any person shall retain any property. The second part also requires that the accused must by deception intentionally induce the person deceived either to do or omit to do anything which he would not do or omit, if he was not so deceived. Furthermore, such act or omission must cause or must be likely to cause damage or harm to that person in body, mind, reputation or property. Thus, it is evident that deception is a necessary ingredient for the offences of cheating under both parts of this section. The complainant, therefore, necessarily needs to prove that the inducement had been caused by the deception exercised by the accused. Such deception must necessarily produce the inducement to part with or deliver property, which the complainant would not have parted with or delivered, but for the inducement resulting from deception. The explanation to the section would clearly indicate that there must be no dishonest concealment of facts. In other words,e of relevant information would also be treated as aof facts leading to deceptionIt was, therefore, necessary for the High Court to examine the averments in the complaint in terms of the aforesaid section. The High Court upon detailed examination of the 1992 PPM, the Stock Purchase Agreements and the 1995 PPM concluded that even if the averments made in the complaint are accepted on their face value, it would only disclose a civil dispute between the parties43. Surprisingly, the High Court notices the representations that were made and contrasted the same with the actual realities and yet concluded that the averments made in the complaint even if taken at their face value would not lead to the conclusion that the respondent has committed the offence of cheating. In coming to the aforesaid conclusions, the High Court has given elaborate reasons. The High Court negated the submissions of the appellant that 1992 PPM is in the nature of a prospectus or a brochure, which requires that all technical information touching upon the commercial feasibility of the project had to be faithfully and fully disclosed. The submission is rejected with the observation that the 1992 PPM contained the following caution:An investment in Iridium involves certain risks, many of which relate to the factors and developments listed above, prospective investors should carefully consider the disclosures set forth elsewhere in this memorandum, including those under the caption `risk factors(1992 PPM Pg. 5)The High Court also accepted the submissions of the respondent that the 1992 PPM contained a separate chapter titled Risk Factors. This portion related to the most important risk factors which were as follows:New regulated Business Venture. The Company is a new business venture of global scope that will require substantial licensing and authorizations from numerous sovereign nations before its business can be conducted in the manner contemplated by its current business plan. Therefore in deciding whether to invest in Shares, prospective investors must evaluate among other things, the potential feasibility and future performance of the Company based on its business plan without benefit of any operating history, and prior to application for an receipt of such licensing and authorizations. No assurance can be given that any of the necessary licenses and authorizations will be obtained in a timely or at all. (1992 PPM Pg. 72)44. According to the High Court, the respondent No.1 did not keep the investors in dark about the Iridium System and gave them all necessary information in respect of various aspects of the system. In coming to the aforesaid conclusion, the High Court observed that a bare perusal of the complaint shows that there is no reference to the Stock Purchase Agreements of 1993 and 1994. In fact, these two important documents contain acknowledgments of the investors about their capability of evaluating the merits and risks of the purchase of the shares and their relying upon their own advisors. The High Court, therefore, negated the submission that there has not been a complete and candid disclosure of the entire material which has resulted in the deception / inducement of the appellant to make huge investment in the Iridium. This conclusion reached by the High Court did not take notice of the explanation to Section 415. The aforesaid explanation gives a statutory recognition to the legal principles established through various judicial pronouncements that misleading statements which withhold the vital facts for intentionally inducing a person to do or to omit to do something would amount to deception. Further, in case it is found that misleading statement has wrongfully caused damage to the person deceived it would amount to cheating. It would at this stage be appropriate to notice the observations made by the House of Lords in the case of The Director &c. of the Central Railway Company of Venezuela Vs. Joseph Kisch supra which would be of some relevance to the issue under consideration. In this case, the House of Lords examined the duty of those who issued a prospectus inviting investments from the general public and held that they were required to make a true and full disclosure of all the relevant factsThe aforesaid observations leave no manner of doubt that the appellants were entitled to an opportunity to prove the averments made in the complaint. They were entitled to establish that they have been deliberately induced into making huge investments on the basis of representations made by respondent No.1 and its representatives, which representations subsequently turned out to be completely false and fraudulent. The appellants were entitled to an opportunity to establish that respondent No.1 and its representatives were aware of the falsity of the representations at the time when they were made. The appellants have given elaborate details of the positive assertions made by respondent No.1 which were allegedly false to its knowledge. It is also claimed by the appellants that the respondent No.1 and its representatives willfully concealed facts which were material and ought to have been disclosed, but were intentionally withheld so as to deceive the appellant into advancing and expending a sum of Rs.500 Crores. As noticed earlier, both the appellants and the respondents have much to say in support of their respective view points. Which of the views is ultimately to be accepted, could only be decided when the parties have had the opportunities to place the entire materials before the Court. This Court has repeatedly held that power to quash proceedings at the initial stage have to be exercised sparingly with circumspection and in the rarest of the rare cases. The power is to be exercised ex debito justitiae. Such power can be exercised where a criminal proceeding is manifestly attended with malafide and have been instituted maliciously with ulterior motive. This inherent power ought not to be exercised to stifle a legitimate prosecution. In the present case, the parties are yet to place on the record the entire material in support of their claims. The issues involved are of considerable importance to the parties in particular, and the world of trade and commerce in general45. In such circumstances, in our opinion, the High Court ought to have refrained from indulging in detailed analysis of very complicated commercial documents and reaching any definite conclusions. In our opinion, the High Court clearly exceeded its jurisdiction in quashing the criminal proceeding in the peculiar facts and circumstances of this case. The High Court noticed that while exercising jurisdiction under Section 482 Cr.P.C. the complaint in its entirety will have to be examined on the basis of the allegations made therein. But the High Court has no authority or jurisdiction to go into the matter or examine its correctness. The allegations in the complaint will have to be accepted on the face of it and the truth or falsity cannot be entered into by the Court at this stage. Having said so, the High Court proceeded to do exactly the opposite. | 1 | 14,487 | 2,481 | ### Instruction:
Hypothesize the court's verdict (affirmation (1) or negation (0) of the appeal), and then clarify this hypothesis by interpreting significant sentences from the case proceeding.
### Input:
of some relevance to the issue under consideration. In this case, the House of Lords examined the duty of those who issued a prospectus inviting investments from the general public and held that they were required to make a true and full disclosure of all the relevant facts. The House of Lords quoted with approval the observations made in the case of New Brunswick and Canada Railway Company Vs. Muggeridge Supra wherein it has been observed as follows :- .........those who issue a prospectus holding out to the public the great advantages which will accrue to persons who will take shares in a proposed undertaking, and inviting them to take shares on the faith of the representations therein contained, are bound to state everything with strict and scrupulous accuracy, and not only to abstain from stating as fact that which is not so, but to omit no one fact within their knowledge the existence of which might in any degree affect the nature, or extent, or quality of the privileges and advantages which the prospectus holds out as inducements to take shares. The House of Lords went on to observe that it is no answer to a person who has been deceived that he would have known the truth by proper inquiry. It would be apposite to reproduce here the observations made by the House of Lords on this aspect of the matter: But it appears to me that when once it is established that there has been any fraudulent misrepresentation or willful concealment by which a person has been induced to enter into a contract, it is no answer to his claim to be relieved from it to tell him that he might have known the truth by proper inquiry. He has a right to retort upon his objector, You, at least, who have stated what is untrue or have concealed the truth, for the purpose of drawing me into a contract, cannot accuse me of want of caution because I relied implicitly upon your fairness and honesty. I quite agree with the opinion of Lord Lyndhurst, in the case of Small Vs. Attwood (1), that where representations are made with respect to the nature and character of property which is to become the subject of purchase, affecting the value of that property, and those representations afterwards turn out to be incorrect and false, to the knowledge of the party making them, a foundation is laid for maintaining an action in a Court of common law to recover damages for the deceit so practiced; and in a Court of equity a foundation is laid for setting aside the contract which was founded upon that basis. And in the case of Dobell Vs. Stevens (2), to which he refers as an authority in support of the proposition, which was an action for deceit in falsely representing the amount of the business done in a public house, the purchaser was held to be entitled to recover damages, although the books were in the house, and he might have had access to them if he thought proper. Upon the whole case I think the decree of Lords Justices ought to be affirmed, and the appeal dismissed with costs. The aforesaid observations leave no manner of doubt that the appellants were entitled to an opportunity to prove the averments made in the complaint. They were entitled to establish that they have been deliberately induced into making huge investments on the basis of representations made by respondent No.1 and its representatives, which representations subsequently turned out to be completely false and fraudulent. The appellants were entitled to an opportunity to establish that respondent No.1 and its representatives were aware of the falsity of the representations at the time when they were made. The appellants have given elaborate details of the positive assertions made by respondent No.1 which were allegedly false to its knowledge. It is also claimed by the appellants that the respondent No.1 and its representatives willfully concealed facts which were material and ought to have been disclosed, but were intentionally withheld so as to deceive the appellant into advancing and expending a sum of Rs.500 Crores. As noticed earlier, both the appellants and the respondents have much to say in support of their respective view points. Which of the views is ultimately to be accepted, could only be decided when the parties have had the opportunities to place the entire materials before the Court. This Court has repeatedly held that power to quash proceedings at the initial stage have to be exercised sparingly with circumspection and in the rarest of the rare cases. The power is to be exercised ex debito justitiae. Such power can be exercised where a criminal proceeding is manifestly attended with malafide and have been instituted maliciously with ulterior motive. This inherent power ought not to be exercised to stifle a legitimate prosecution. In the present case, the parties are yet to place on the record the entire material in support of their claims. The issues involved are of considerable importance to the parties in particular, and the world of trade and commerce in general. 45. In such circumstances, in our opinion, the High Court ought to have refrained from indulging in detailed analysis of very complicated commercial documents and reaching any definite conclusions. In our opinion, the High Court clearly exceeded its jurisdiction in quashing the criminal proceeding in the peculiar facts and circumstances of this case. The High Court noticed that while exercising jurisdiction under Section 482 Cr.P.C. the complaint in its entirety will have to be examined on the basis of the allegations made therein. But the High Court has no authority or jurisdiction to go into the matter or examine its correctness. The allegations in the complaint will have to be accepted on the face of it and the truth or falsity cannot be entered into by the Court at this stage. Having said so, the High Court proceeded to do exactly the opposite.
### Response:
1
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appellant that 1992 PPM is in the nature of a prospectus or a brochure, which requires that all technical information touching upon the commercial feasibility of the project had to be faithfully and fully disclosed. The submission is rejected with the observation that the 1992 PPM contained the following caution:An investment in Iridium involves certain risks, many of which relate to the factors and developments listed above, prospective investors should carefully consider the disclosures set forth elsewhere in this memorandum, including those under the caption `risk factors(1992 PPM Pg. 5)The High Court also accepted the submissions of the respondent that the 1992 PPM contained a separate chapter titled Risk Factors. This portion related to the most important risk factors which were as follows:New regulated Business Venture. The Company is a new business venture of global scope that will require substantial licensing and authorizations from numerous sovereign nations before its business can be conducted in the manner contemplated by its current business plan. Therefore in deciding whether to invest in Shares, prospective investors must evaluate among other things, the potential feasibility and future performance of the Company based on its business plan without benefit of any operating history, and prior to application for an receipt of such licensing and authorizations. No assurance can be given that any of the necessary licenses and authorizations will be obtained in a timely or at all. (1992 PPM Pg. 72)44. According to the High Court, the respondent No.1 did not keep the investors in dark about the Iridium System and gave them all necessary information in respect of various aspects of the system. In coming to the aforesaid conclusion, the High Court observed that a bare perusal of the complaint shows that there is no reference to the Stock Purchase Agreements of 1993 and 1994. In fact, these two important documents contain acknowledgments of the investors about their capability of evaluating the merits and risks of the purchase of the shares and their relying upon their own advisors. The High Court, therefore, negated the submission that there has not been a complete and candid disclosure of the entire material which has resulted in the deception / inducement of the appellant to make huge investment in the Iridium. This conclusion reached by the High Court did not take notice of the explanation to Section 415. The aforesaid explanation gives a statutory recognition to the legal principles established through various judicial pronouncements that misleading statements which withhold the vital facts for intentionally inducing a person to do or to omit to do something would amount to deception. Further, in case it is found that misleading statement has wrongfully caused damage to the person deceived it would amount to cheating. It would at this stage be appropriate to notice the observations made by the House of Lords in the case of The Director &c. of the Central Railway Company of Venezuela Vs. Joseph Kisch supra which would be of some relevance to the issue under consideration. In this case, the House of Lords examined the duty of those who issued a prospectus inviting investments from the general public and held that they were required to make a true and full disclosure of all the relevant factsThe aforesaid observations leave no manner of doubt that the appellants were entitled to an opportunity to prove the averments made in the complaint. They were entitled to establish that they have been deliberately induced into making huge investments on the basis of representations made by respondent No.1 and its representatives, which representations subsequently turned out to be completely false and fraudulent. The appellants were entitled to an opportunity to establish that respondent No.1 and its representatives were aware of the falsity of the representations at the time when they were made. The appellants have given elaborate details of the positive assertions made by respondent No.1 which were allegedly false to its knowledge. It is also claimed by the appellants that the respondent No.1 and its representatives willfully concealed facts which were material and ought to have been disclosed, but were intentionally withheld so as to deceive the appellant into advancing and expending a sum of Rs.500 Crores. As noticed earlier, both the appellants and the respondents have much to say in support of their respective view points. Which of the views is ultimately to be accepted, could only be decided when the parties have had the opportunities to place the entire materials before the Court. This Court has repeatedly held that power to quash proceedings at the initial stage have to be exercised sparingly with circumspection and in the rarest of the rare cases. The power is to be exercised ex debito justitiae. Such power can be exercised where a criminal proceeding is manifestly attended with malafide and have been instituted maliciously with ulterior motive. This inherent power ought not to be exercised to stifle a legitimate prosecution. In the present case, the parties are yet to place on the record the entire material in support of their claims. The issues involved are of considerable importance to the parties in particular, and the world of trade and commerce in general45. In such circumstances, in our opinion, the High Court ought to have refrained from indulging in detailed analysis of very complicated commercial documents and reaching any definite conclusions. In our opinion, the High Court clearly exceeded its jurisdiction in quashing the criminal proceeding in the peculiar facts and circumstances of this case. The High Court noticed that while exercising jurisdiction under Section 482 Cr.P.C. the complaint in its entirety will have to be examined on the basis of the allegations made therein. But the High Court has no authority or jurisdiction to go into the matter or examine its correctness. The allegations in the complaint will have to be accepted on the face of it and the truth or falsity cannot be entered into by the Court at this stage. Having said so, the High Court proceeded to do exactly the opposite.
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Food Corporation of India and Ors Vs. West Bengal FCI Workmens Union | 1. Heard.2. Perused the record.3. The order dated 08.03.2001 was passed by learned single judge of the High Court of Calcutta in C.R. No. 5489 (W) of 1991, in the operative portion of which the following order was passed:Considering the facts and circumstances, I feel that for the ends of justice time should be given to the corporation for framing a scheme to absorb the said workmen as regular employee. Accordingly, I grant one year time to food Corporation of India to frame a scheme or to find ways and means to absorb the said workmen. So long the services of the writ Petitioner are not regularised in terms do this order, the present system should continue.4. Thereafter a contempt petition was filed bearing C.P.A.N. No. 406 of 2002, the same was decided vide order dated 24th June, 2002 in which six months time was extended to absorb the employees. Accordingly the contempt petition was disposed of.5. Thereafter the second contempt petition bearing C.P.A.N. No. 75 of 2003 was filed which was decided vide order dated 25.3.2003 in which following order was passed:Mr. Thakurdas Roy Choudhury, learned Counsel appearing for the writ Petitioners, disputes such contention. According to Mr. Roy Chowdhury, learned Counsel, only 12(twelve) persons have been regularized. The others are working on direct payment system.Mr. Sen Gupta, learned Counsel, submits that although the Petitioners are working under the direct payment scheme they are enjoying similar benefits along with the other employees. However, he assures this Court that the present status of the Petitioners would not be disturbed.In view of such submissions the contempt application is disposed of without passing any order on the same.6. Against this order the Respondents preferred an appeal before the Division Bench of the High Court as contempt Petition was disposed of without compliance of the order and tantamounted to as if the High Court had accepted the statement which was made, whereas the same could not be said to be due compliance of the order passed by the court on 8.3.2001. The Division Bench vide order dated 3.5.2007 has set aside the order passed by the single judge on 25.03.2003 in the contempt proceedings and has observed that absorption be made, as ordered by the single judge in appeal on 8th March, 2001 without any further delay within a period of four months from the date of communication of the order. As such Food Corporation of India has come to this Court.7. The operation of the judgment was stayed by this Court on 12.11.2007 as to how the Respondents have not been able to get the benefits so far. We find that when once the order passed by the single judge in appeal dated 8th March, 2001 has attained finality it was required to be complied with in pith and substance. Thus the order passed by the single judge in the contempt proceedings could not said to be in accordance with law. The Division Bench was thus right in directing the compliance of the order dated 8th March, 2001. | 0[ds]7. The operation of the judgment was stayed by this Court on 12.11.2007 as to how the Respondents have not been able to get the benefits so far. We find that when once the order passed by the single judge in appeal dated 8th March, 2001 has attained finality it was required to be complied with in pith and substance. Thus the order passed by the single judge in the contempt proceedings could not said to be in accordance with law. The Division Bench was thus right in directing the compliance of the order dated 8th March, 2001. | 0 | 559 | 109 | ### Instruction:
Speculate on the likely judgment (yes (1) or no (0) to the appeal) and then delve into the case proceeding to elucidate your prediction, focusing on critical sentences.
### Input:
1. Heard.2. Perused the record.3. The order dated 08.03.2001 was passed by learned single judge of the High Court of Calcutta in C.R. No. 5489 (W) of 1991, in the operative portion of which the following order was passed:Considering the facts and circumstances, I feel that for the ends of justice time should be given to the corporation for framing a scheme to absorb the said workmen as regular employee. Accordingly, I grant one year time to food Corporation of India to frame a scheme or to find ways and means to absorb the said workmen. So long the services of the writ Petitioner are not regularised in terms do this order, the present system should continue.4. Thereafter a contempt petition was filed bearing C.P.A.N. No. 406 of 2002, the same was decided vide order dated 24th June, 2002 in which six months time was extended to absorb the employees. Accordingly the contempt petition was disposed of.5. Thereafter the second contempt petition bearing C.P.A.N. No. 75 of 2003 was filed which was decided vide order dated 25.3.2003 in which following order was passed:Mr. Thakurdas Roy Choudhury, learned Counsel appearing for the writ Petitioners, disputes such contention. According to Mr. Roy Chowdhury, learned Counsel, only 12(twelve) persons have been regularized. The others are working on direct payment system.Mr. Sen Gupta, learned Counsel, submits that although the Petitioners are working under the direct payment scheme they are enjoying similar benefits along with the other employees. However, he assures this Court that the present status of the Petitioners would not be disturbed.In view of such submissions the contempt application is disposed of without passing any order on the same.6. Against this order the Respondents preferred an appeal before the Division Bench of the High Court as contempt Petition was disposed of without compliance of the order and tantamounted to as if the High Court had accepted the statement which was made, whereas the same could not be said to be due compliance of the order passed by the court on 8.3.2001. The Division Bench vide order dated 3.5.2007 has set aside the order passed by the single judge on 25.03.2003 in the contempt proceedings and has observed that absorption be made, as ordered by the single judge in appeal on 8th March, 2001 without any further delay within a period of four months from the date of communication of the order. As such Food Corporation of India has come to this Court.7. The operation of the judgment was stayed by this Court on 12.11.2007 as to how the Respondents have not been able to get the benefits so far. We find that when once the order passed by the single judge in appeal dated 8th March, 2001 has attained finality it was required to be complied with in pith and substance. Thus the order passed by the single judge in the contempt proceedings could not said to be in accordance with law. The Division Bench was thus right in directing the compliance of the order dated 8th March, 2001.
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0
### Explanation:
7. The operation of the judgment was stayed by this Court on 12.11.2007 as to how the Respondents have not been able to get the benefits so far. We find that when once the order passed by the single judge in appeal dated 8th March, 2001 has attained finality it was required to be complied with in pith and substance. Thus the order passed by the single judge in the contempt proceedings could not said to be in accordance with law. The Division Bench was thus right in directing the compliance of the order dated 8th March, 2001.
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Anita Maria Dias and Ors Vs. The State of Maharashtra and Ors | State of Punjab and Anr. (2012) 10 SCC 303. We may also quote the following passage from the case of Narinder Singh and Ors. v. State of Punjab and Anr. (2014) 6 SCC 466 : 29. In view of the aforesaid discussion, we sum up and lay down the following principles by which the High Court would be guided in giving adequate treatment to the settlement between the parties and exercising its power Under Section 482 of the Code while accepting the settlement and quashing the proceedings or refusing to accept the settlement with direction to continue with the criminal proceedings: 29.1. Power conferred Under Section 482 of the Code is to be distinguished from the power which lies in the Court to compound the offences Under Section 320 of the Code. No doubt, Under Section 482 of the Code, the High Court has inherent power to quash the criminal proceedings even in those cases which are not compoundable, where the parties have settled the matter between themselves. However, this power is to be exercised sparingly and with caution. 29.2. When the parties have reached the settlement and on that basis petition for quashing the criminal proceedings is filed, the guiding factor in such cases would be to secure: (i) ends of justice, or (ii) to prevent abuse of the process of any court. While exercising the power the High Court is to form an opinion on either of the aforesaid two objectives. 29.3. Such a power is not to be exercised in those prosecutions which involve heinous and serious offences of mental depravity or offences like murder, rape, dacoity, etc. Such offences are not private in nature and have a serious impact on society. Similarly, for the offences alleged to have been committed under special statute like the Prevention of Corruption Act or the offences committed by public servants while working in that capacity are not to be quashed merely on the basis of compromise between the victim and the offender. 29.4. On the other hand, those criminal cases having overwhelmingly and predominantly civil character, particularly those arising out of commercial transactions or arising out of matrimonial relationship or family disputes should be quashed when the parties have resolved their entire disputes among themselves. 29.5. While exercising its powers, the High Court is to examine as to whether the possibility of conviction is remote and bleak and continuation of criminal cases would put the Accused to great oppression and prejudice and extreme injustice would be caused to him by not quashing the criminal cases. 29.6. Offences Under Section 307 Indian Penal Code would fall in the category of heinous and serious offences and therefore are to be generally treated as crime against the society and not against the individual alone. However, the High Court would not rest its decision merely because there is a mention of Section 307 Indian Penal Code in the FIR or the charge is framed under this provision. It would be open to the High Court to examine as to whether incorporation of Section 307 Indian Penal Code is there for the sake of it or the prosecution has collected sufficient evidence, which if proved, would lead to proving the charge Under Section 307 Indian Penal Code. For this purpose, it would be open to the High Court to go by the nature of injury sustained, whether such injury is inflicted on the vital/delegate parts of the body, nature of weapons used, etc. Medical report in respect of injuries suffered by the victim can generally be the guiding factor. On the basis of this prima facie analysis, the High Court can examine as to whether there is a strong possibility of conviction or the chances of conviction are remote and bleak. In the former case it can refuse to accept the settlement and quash the criminal proceedings whereas in the latter case it would be permissible for the High Court to accept the plea compounding the offence based on complete settlement between the parties. At this stage, the Court can also be swayed by the fact that the settlement between the parties is going to result in harmony between them which may improve their future relationship. 29.7. While deciding whether to exercise its power Under Section 482 of the Code or not, timings of settlement play a crucial role. Those cases where the settlement is arrived at immediately after the alleged commission of offence and the matter is still under investigation, the High Court may be liberal in accepting the settlement to quash the criminal proceedings/investigation. It is because of the reason that at this stage the investigation is still on and even the charge-sheet has not been filed. Likewise, those cases where the charge is framed but the evidence is yet to start or the evidence is still at infancy stage, the High Court can show benevolence in exercising its powers favourably, but after prima facie assessment of the circumstances/material mentioned above. On the other hand, where the prosecution evidence is almost complete or after the conclusion of the evidence the matter is at the stage of argument, normally the High Court should refrain from exercising its power Under Section 482 of the Code, as in such cases the trial court would be in a position to decide the case finally on merits and to come to a conclusion as to whether the offence Under Section 307 Indian Penal Code is committed or not. Similarly, in those cases where the conviction is already recorded by the trial court and the matter is at the appellate stage before the High Court, mere compromise between the parties would not be a ground to accept the same resulting in acquittal of the offender who has already been convicted by the trial court. Here charge is proved Under Section 307 Indian Penal Code and conviction is already recorded of a heinous crime and, therefore, there is no question of sparing a convict found guilty of such a crime. | 1[ds]7. In a case like this, where the proceedings are still at initial and nascent stage, the High Court should have exercised its discretion in quashing the proceedings. Law in this behalf is well settled by catena of judgments of this Court including Parbatbhai Aahir and Ors. v. State of Gujarat and Anr. (2017) 9 SCC 641 and Gian Singh v. State of Punjab and Anr. (2012) 10 SCC 303. We may also quote the following passage from the case of Narinder Singh and Ors. v. State of Punjab and Anr. (2014) 6 SCC 466 :29. In view of the aforesaid discussion, we sum up and lay down the following principles by which the High Court would be guided in giving adequate treatment to the settlement between the parties and exercising its power Under Section 482 of the Code while accepting the settlement and quashing the proceedings or refusing to accept the settlement with direction to continue with the criminal proceedings:29.1. Power conferred Under Section 482 of the Code is to be distinguished from the power which lies in the Court to compound the offences Under Section 320 of the Code. No doubt, Under Section 482 of the Code, the High Court has inherent power to quash the criminal proceedings even in those cases which are not compoundable, where the parties have settled the matter between themselves. However, this power is to be exercised sparingly and with caution29.2. When the parties have reached the settlement and on that basis petition for quashing the criminal proceedings is filed, the guiding factor in such cases would be to secure:(i) ends of justice, or(ii) to prevent abuse of the process of any courtWhile exercising the power the High Court is to form an opinion on either of the aforesaid two objectives29.3. Such a power is not to be exercised in those prosecutions which involve heinous and serious offences of mental depravity or offences like murder, rape, dacoity, etc. Such offences are not private in nature and have a serious impact on society. Similarly, for the offences alleged to have been committed under special statute like the Prevention of Corruption Act or the offences committed by public servants while working in that capacity are not to be quashed merely on the basis of compromise between the victim and the offender29.4. On the other hand, those criminal cases having overwhelmingly and predominantly civil character, particularly those arising out of commercial transactions or arising out of matrimonial relationship or family disputes should be quashed when the parties have resolved their entire disputes among themselves29.5. While exercising its powers, the High Court is to examine as to whether the possibility of conviction is remote and bleak and continuation of criminal cases would put the Accused to great oppression and prejudice and extreme injustice would be caused to him by not quashing the criminal cases29.6. Offences Under Section 307 Indian Penal Code would fall in the category of heinous and serious offences and therefore are to be generally treated as crime against the society and not against the individual alone. However, the High Court would not rest its decision merely because there is a mention of Section 307 Indian Penal Code in the FIR or the charge is framed under this provision. It would be open to the High Court to examine as to whether incorporation of Section 307 Indian Penal Code is there for the sake of it or the prosecution has collected sufficient evidence, which if proved, would lead to proving the charge Under Section 307 Indian Penal Code. For this purpose, it would be open to the High Court to go by the nature of injury sustained, whether such injury is inflicted on the vital/delegate parts of the body, nature of weapons used, etc. Medical report in respect of injuries suffered by the victim can generally be the guiding factor. On the basis of this prima facie analysis, the High Court can examine as to whether there is a strong possibility of conviction or the chances of conviction are remote and bleak. In the former case it can refuse to accept the settlement and quash the criminal proceedings whereas in the latter case it would be permissible for the High Court to accept the plea compounding the offence based on complete settlement between the parties. At this stage, the Court can also be swayed by the fact that the settlement between the parties is going to result in harmony between them which may improve their future relationship29.7. While deciding whether to exercise its power Under Section 482 of the Code or not, timings of settlement play a crucial role. Those cases where the settlement is arrived at immediately after the alleged commission of offence and the matter is still under investigation, the High Court may be liberal in accepting the settlement to quash the criminal proceedings/investigation. It is because of the reason that at this stage the investigation is still on and even the charge-sheet has not been filed. Likewise, those cases where the charge is framed but the evidence is yet to start or the evidence is still at infancy stage, the High Court can show benevolence in exercising its powers favourably, but after prima facie assessment of the circumstances/material mentioned above. On the other hand, where the prosecution evidence is almost complete or after the conclusion of the evidence the matter is at the stage of argument, normally the High Court should refrain from exercising its power Under Section 482 of the Code, as in such cases the trial court would be in a position to decide the case finally on merits and to come to a conclusion as to whether the offence Under Section 307 Indian Penal Code is committed or not. Similarly, in those cases where the conviction is already recorded by the trial court and the matter is at the appellate stage before the High Court, mere compromise between the parties would not be a ground to accept the same resulting in acquittal of the offender who has already been convicted by the trial court. Here charge is proved Under Section 307 Indian Penal Code and conviction is already recorded of a heinous crime and, therefore, there is no question of sparing a convict found guilty of such a crime. | 1 | 2,390 | 1,138 | ### 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:
State of Punjab and Anr. (2012) 10 SCC 303. We may also quote the following passage from the case of Narinder Singh and Ors. v. State of Punjab and Anr. (2014) 6 SCC 466 : 29. In view of the aforesaid discussion, we sum up and lay down the following principles by which the High Court would be guided in giving adequate treatment to the settlement between the parties and exercising its power Under Section 482 of the Code while accepting the settlement and quashing the proceedings or refusing to accept the settlement with direction to continue with the criminal proceedings: 29.1. Power conferred Under Section 482 of the Code is to be distinguished from the power which lies in the Court to compound the offences Under Section 320 of the Code. No doubt, Under Section 482 of the Code, the High Court has inherent power to quash the criminal proceedings even in those cases which are not compoundable, where the parties have settled the matter between themselves. However, this power is to be exercised sparingly and with caution. 29.2. When the parties have reached the settlement and on that basis petition for quashing the criminal proceedings is filed, the guiding factor in such cases would be to secure: (i) ends of justice, or (ii) to prevent abuse of the process of any court. While exercising the power the High Court is to form an opinion on either of the aforesaid two objectives. 29.3. Such a power is not to be exercised in those prosecutions which involve heinous and serious offences of mental depravity or offences like murder, rape, dacoity, etc. Such offences are not private in nature and have a serious impact on society. Similarly, for the offences alleged to have been committed under special statute like the Prevention of Corruption Act or the offences committed by public servants while working in that capacity are not to be quashed merely on the basis of compromise between the victim and the offender. 29.4. On the other hand, those criminal cases having overwhelmingly and predominantly civil character, particularly those arising out of commercial transactions or arising out of matrimonial relationship or family disputes should be quashed when the parties have resolved their entire disputes among themselves. 29.5. While exercising its powers, the High Court is to examine as to whether the possibility of conviction is remote and bleak and continuation of criminal cases would put the Accused to great oppression and prejudice and extreme injustice would be caused to him by not quashing the criminal cases. 29.6. Offences Under Section 307 Indian Penal Code would fall in the category of heinous and serious offences and therefore are to be generally treated as crime against the society and not against the individual alone. However, the High Court would not rest its decision merely because there is a mention of Section 307 Indian Penal Code in the FIR or the charge is framed under this provision. It would be open to the High Court to examine as to whether incorporation of Section 307 Indian Penal Code is there for the sake of it or the prosecution has collected sufficient evidence, which if proved, would lead to proving the charge Under Section 307 Indian Penal Code. For this purpose, it would be open to the High Court to go by the nature of injury sustained, whether such injury is inflicted on the vital/delegate parts of the body, nature of weapons used, etc. Medical report in respect of injuries suffered by the victim can generally be the guiding factor. On the basis of this prima facie analysis, the High Court can examine as to whether there is a strong possibility of conviction or the chances of conviction are remote and bleak. In the former case it can refuse to accept the settlement and quash the criminal proceedings whereas in the latter case it would be permissible for the High Court to accept the plea compounding the offence based on complete settlement between the parties. At this stage, the Court can also be swayed by the fact that the settlement between the parties is going to result in harmony between them which may improve their future relationship. 29.7. While deciding whether to exercise its power Under Section 482 of the Code or not, timings of settlement play a crucial role. Those cases where the settlement is arrived at immediately after the alleged commission of offence and the matter is still under investigation, the High Court may be liberal in accepting the settlement to quash the criminal proceedings/investigation. It is because of the reason that at this stage the investigation is still on and even the charge-sheet has not been filed. Likewise, those cases where the charge is framed but the evidence is yet to start or the evidence is still at infancy stage, the High Court can show benevolence in exercising its powers favourably, but after prima facie assessment of the circumstances/material mentioned above. On the other hand, where the prosecution evidence is almost complete or after the conclusion of the evidence the matter is at the stage of argument, normally the High Court should refrain from exercising its power Under Section 482 of the Code, as in such cases the trial court would be in a position to decide the case finally on merits and to come to a conclusion as to whether the offence Under Section 307 Indian Penal Code is committed or not. Similarly, in those cases where the conviction is already recorded by the trial court and the matter is at the appellate stage before the High Court, mere compromise between the parties would not be a ground to accept the same resulting in acquittal of the offender who has already been convicted by the trial court. Here charge is proved Under Section 307 Indian Penal Code and conviction is already recorded of a heinous crime and, therefore, there is no question of sparing a convict found guilty of such a crime.
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Anr. (2017) 9 SCC 641 and Gian Singh v. State of Punjab and Anr. (2012) 10 SCC 303. We may also quote the following passage from the case of Narinder Singh and Ors. v. State of Punjab and Anr. (2014) 6 SCC 466 :29. In view of the aforesaid discussion, we sum up and lay down the following principles by which the High Court would be guided in giving adequate treatment to the settlement between the parties and exercising its power Under Section 482 of the Code while accepting the settlement and quashing the proceedings or refusing to accept the settlement with direction to continue with the criminal proceedings:29.1. Power conferred Under Section 482 of the Code is to be distinguished from the power which lies in the Court to compound the offences Under Section 320 of the Code. No doubt, Under Section 482 of the Code, the High Court has inherent power to quash the criminal proceedings even in those cases which are not compoundable, where the parties have settled the matter between themselves. However, this power is to be exercised sparingly and with caution29.2. When the parties have reached the settlement and on that basis petition for quashing the criminal proceedings is filed, the guiding factor in such cases would be to secure:(i) ends of justice, or(ii) to prevent abuse of the process of any courtWhile exercising the power the High Court is to form an opinion on either of the aforesaid two objectives29.3. Such a power is not to be exercised in those prosecutions which involve heinous and serious offences of mental depravity or offences like murder, rape, dacoity, etc. Such offences are not private in nature and have a serious impact on society. Similarly, for the offences alleged to have been committed under special statute like the Prevention of Corruption Act or the offences committed by public servants while working in that capacity are not to be quashed merely on the basis of compromise between the victim and the offender29.4. On the other hand, those criminal cases having overwhelmingly and predominantly civil character, particularly those arising out of commercial transactions or arising out of matrimonial relationship or family disputes should be quashed when the parties have resolved their entire disputes among themselves29.5. While exercising its powers, the High Court is to examine as to whether the possibility of conviction is remote and bleak and continuation of criminal cases would put the Accused to great oppression and prejudice and extreme injustice would be caused to him by not quashing the criminal cases29.6. Offences Under Section 307 Indian Penal Code would fall in the category of heinous and serious offences and therefore are to be generally treated as crime against the society and not against the individual alone. However, the High Court would not rest its decision merely because there is a mention of Section 307 Indian Penal Code in the FIR or the charge is framed under this provision. It would be open to the High Court to examine as to whether incorporation of Section 307 Indian Penal Code is there for the sake of it or the prosecution has collected sufficient evidence, which if proved, would lead to proving the charge Under Section 307 Indian Penal Code. For this purpose, it would be open to the High Court to go by the nature of injury sustained, whether such injury is inflicted on the vital/delegate parts of the body, nature of weapons used, etc. Medical report in respect of injuries suffered by the victim can generally be the guiding factor. On the basis of this prima facie analysis, the High Court can examine as to whether there is a strong possibility of conviction or the chances of conviction are remote and bleak. In the former case it can refuse to accept the settlement and quash the criminal proceedings whereas in the latter case it would be permissible for the High Court to accept the plea compounding the offence based on complete settlement between the parties. At this stage, the Court can also be swayed by the fact that the settlement between the parties is going to result in harmony between them which may improve their future relationship29.7. While deciding whether to exercise its power Under Section 482 of the Code or not, timings of settlement play a crucial role. Those cases where the settlement is arrived at immediately after the alleged commission of offence and the matter is still under investigation, the High Court may be liberal in accepting the settlement to quash the criminal proceedings/investigation. It is because of the reason that at this stage the investigation is still on and even the charge-sheet has not been filed. Likewise, those cases where the charge is framed but the evidence is yet to start or the evidence is still at infancy stage, the High Court can show benevolence in exercising its powers favourably, but after prima facie assessment of the circumstances/material mentioned above. On the other hand, where the prosecution evidence is almost complete or after the conclusion of the evidence the matter is at the stage of argument, normally the High Court should refrain from exercising its power Under Section 482 of the Code, as in such cases the trial court would be in a position to decide the case finally on merits and to come to a conclusion as to whether the offence Under Section 307 Indian Penal Code is committed or not. Similarly, in those cases where the conviction is already recorded by the trial court and the matter is at the appellate stage before the High Court, mere compromise between the parties would not be a ground to accept the same resulting in acquittal of the offender who has already been convicted by the trial court. Here charge is proved Under Section 307 Indian Penal Code and conviction is already recorded of a heinous crime and, therefore, there is no question of sparing a convict found guilty of such a crime.
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Shankar Madhoji Nemade Vs. Chisuji Janaji Bhadke & Ors | having been duly complied with, Section 132 (2) of the Bombay Act stands attracted. The counsel pointed out that Sec. 132 deals with repeals and savings. Sub-section (1) had repealed the enactments specified in Schedule I to the extent specified in column No. 4 of the said Schedule. Schedule I shows that the Berar Act has been repealed in its entirety. Notwithstanding the repeal sub-section (2) has saved certain matters and one of the matters so saved is the obligation or liability already incurred before the commencement of the Bombay Act. The 5th respondent, who had incurred the obligation or liability to cultivate the lands for two ~ ears under the Berar Act before the commencement of the Bombay Act, has discharged the said obligation or liability and hence the tenant has no further rights which he can enforce. He also urged that S. 52 protects even cases where possession has been taken after the coming into force of the Bombay Act on the basis of an order for restoration obtained under the Berar Act. In support of this contention he relied on the decision in Ramchandra v. Tukaram, (1966) 1 SCR 594 = (AIR 1966 SC 557).7. Before we deal with the merits we will now dispose of the preliminary objection raised by Mr. Gupta and praying for cancellation of special leave granted by this Court. According to the learned counsel the appellant has deliberately made certain false statements in the application for grant of special leave and has misguided the Court. He also drew our attention to the statements made in paragraph 6 of the application wherein the appellant has stated that the 5th respondent had transferred the suit lands in favour of the first respondent on June 21, 1961 by taking in exchange 8 acres of land plus a sum of Rs. 30,000/-. Again in paragraph 10 of the petition the appellant has stated that his claim in these proceedings is for restoration of possession of the lands measuring 7 acres and 4 gunthas, the market value of which happens to be more than Rs. 20,000/-, and that this fact is further strengthened because of the 5th respondent exchanging his lands with the first respondent for a sum of Rs. 30,000/- plus 8 acres of land. The appellant has filed an affidavit stating that the statements contained in the special leave petition are true and correct to the best of my personal knowledge. From these statements Mr. Gupta pointed out that it is clear that the appellant has categorically stated that the value of the lands concerned in this appeal is over Rs. 20,000/- and he has also specifically stated that the suit lands were exchanged for Rs. 30,000/- plus 8 acres of lands and these statements have been affirmed to be true to the personal knowledge of the appellant.8. Mr. Gupta pointed out that these statements regarding valuation are absolutely false to the knowledge of the appellant as will be clear from the value given in the writ petition filed by the respondent in the High Court. In para I of the writ petition the first respondent has stated that the 5th respondent after transferring the suit lands of 7 acres and 4 gunthas has taken in exchange from him acres of land and a sum of Rs. 13,000/-. Thus making a total of Rs. 19,000/-. In the affidavit filed along with the writ petition the first respondent has again stated that the amount received from him along with 8 acres of land was Rs. 13,000 and the total value of the lands being only Rs. 19,000/-. He also drew our attention to the recitals in the judgment printed in the appeal records wherein the exchange has been stated as being of 8 acres of land plus a sum of Rs. 13,000. In view of these circumstances, the counsel points out that the statements made by the appellant, which have been affirmed to be true to his knowledge about valuation of the suit lands being over Rs. 20,000/and the exchange having been obtained of 8 acres and Rs. 30,000/- are false and have been deliberately made to mislead the Court so as to obtain special leave making it appear that the requirement regarding valuation is satisfied. Mr. Gupta drew our attention to the decisions of this Court, namely, Hari Narain v. Badri Das, 1964-2 SCR 203 (AIR 1963 SC 1558 ), Sita Bai v. Soni Vanji Wani, Civil Appeal No. 982 of 1965 D/- 25-4-1968 (SC) and S. R. Shetty v. Phirozeshah Nusserwanji Civil Appeal No. 155 of 1963, D/- 5-4-1963 (SC). Mr. Gupta pointed out that in all these decisions when there has been false statements made on material particulars or matters of importance either on facts or about valuation, this Court had cancelled special leave already granted.The proposition enunciated by Mr. Gupta that the statements in the special leave application should not contain any untrue or false statements either in material particulars or on matters of importance or about valuation is certainly laid down in those decisions and the requirement in this regard cannot be over emphasised.In (1964) 2 SCR 203 = (AIR 1963 SC 1558 ) this Court held that the special leave petition contained inaccurate, untrue and misleading statements and cancelled special leave already granted. This Court observed at p. 209 (of SCR) = (at p. 1560 of AIR) as follows:"It is of utmost importance that in making material statements and setting forth grounds in applications for special leave, care must be taken not to make any statements which are inaccurate untrue or misleading. In dealing with applications for special leave, the Court naturally takes statements of fact and grounds of fact contained in the petitions at their face value and it would be unfair to betray the confidence of the Court by making statements which are untrue and misleading."9. From the facts in that case it will be seen that the material statements made in the special leave petition were false. | 1[ds]9. From the facts in that case it will be seen that the material statements made in the special leave petition were false.We have given due consideration to all these aspects presented before us by both the learned counsel and we are of the view that in the particular circumstances of this case it cannot be said that the appellant is guilty of making any false or untrue statement on any material particulars or matters of importance or regarding valuation. The mistake committed by the appellant regarding valuation was the result of the mistaken value given by the High Court itself in its judgment, which was corrected only long afterwards. No doubt, the appellant who is a party to the proceedings should have been a little more careful, but that does not disclose any deliberate attempt on his part to mislead this Court. Further the statement regarding valuation is not of much consequence in this case because the questions arising for decision are really points of law regarding applicability of either the Berar or Bombay Acts. Therefore, Mr. Gupta has not been able to make out a case for cancelling the special leave already granted.In our opinion, the Full Bench has too broadly stated the principles regarding the circumstances under which S. 52 of the Bombay Act will apply. If taking possession of the land by the landlord after December 30, 1958, is the sole test for the applicability of S. 52, the position, in our view, will be very anomalous. For instance if a landlord had taken possession on December 29, 1958, S. 52 will not apply and the requirement of two years personal cultivation may not also become necessary as the Berar Act stands repealed as on December 30, 1958. Similarly if the landlord had taken possession and had also complied with the requirement of two years personal cultivation long before December 30, 1958, but nevertheless if he is in possession of the land on December 30, 1958, according to the Full Bench, Section 52 will stand attracted. No doubt the Full Bench has not answered the second question posed before it but the reasoning of the decision will be to that effect if the test of possession on December 30, 1958 is the only criteria.31. We are of the opinion that the question of S. 52 being retrospective or not has no material bearing in interpreting that section. That section had necessarily to refer Sections 38, 39 and 39A as they were also provisions enabling a landlord to get possession from a lessee. It is in the light of these matters that the expressions occurring therein have to be given their natural meaning. The Full Bench has misinterpreted that section.32. In interpreting S. 52,in our opinion, S. 132 (2) (i) will be helpful. The obligation of the landlord when he takes possession of the land from the tenant under the Berar Act is to cultivate it personally for two years and once the landlord complies with that requirement before the Bombay Act came into force, the tenants right to get restoration stands extinguished as the landlord has discharged hisdue regard to the provisions of the two statutes and what has been stated by us earlier the position is that if the landlord on December 30, 1958 had completed the two years period of personal cultivation, his right not to be disturbed is continued and preserved under Section 132 (2) (i) of the Bombay Act. Again if the landlord in pursuance of an order obtained under the Berar Act, takes possession, after the commencement of the Bombay Act, Section 52 applies to him and his original obligation to cultivate personally for two years under the Berar Act gets extended by the 12 years period provided under that section. If he ceases to so cultivate within the period of 12 years from his taking possession, the tenant gets a right to apply for restoration of the land.34. The several aspects enumerated above have not been considered by the Full Bench of the Bombay High Court and it has rested its decision for applying Section 52 by applying the sole test whether the landlord has taken possession before or after December 30, 1958. Such a test is not warranted by the provisions of both the statutes read together. A fair reading of Section 52 also, in our opinion, leads to the same conclusion. Section 52 providesthe tenancy being terminated under Section 9 of the Berar Act;(ii) the landlord taking Possession of such land on the basis of such termination of the tenancy;(iii) the landlord failing to use the land for the purpose specified in the notice under Section 9 of the Berar Act;(iv) failure to use the land for the purpose mentioned in the notice within one year from the date on which he took possession;(v) the landlord ceasing to use the land for the purpose for which he obtains possession within 12 years of his takingTo the case of a landlord who had already completed two years personal cultivation before Dec. 30, 1958, the requirement of his failing to use the land for the purpose specified in the notice under Section 9 within one year from the date of his taking possession, will have no application whatsoever. The normal and reasonable construction to be placed upon Section 52 is that it will apply only to cases of lands, the possession of which was obtained by the landlord under Section 9 of the Berar Act, but in respect of which the period of two years disability imposed under Section 9 (6) read with Rule 9 of the Rules was not over before the coming into force of the Bombay Act. In respect of such landlords, Section 52 enlarges the period for which he is required to personally cultivate the lands. In this respect we are inclined to agree with the view of Mr. Justice Wagle.36. To conclude Section 52 applies to all cases where possession is taken by the landlord on or after December 30, 1958 on the basis of an order obtained under the Berar Act. It applies to cases where possession had been taken by a landlord under the Berar Act but the two years period of personal cultivation had not been completed when the Bombay Act came into force. The instances of obtaining possession under Ss. 38, 39 or 39-A of the Bombay Act have not been considered by us in this appeal.37. It follows that Section 52 of the Bombay Act applies to the case before us, as the landlord has not completed two years personal cultivation on December 30, 1958, the date on which the Bombay Act came into force. He had taken possession on April 4, 1957, and the two years period will expire only on April 4, 1959. In the meanwhile the Bombay Act had come into force on December 30, 1958. Under Section 52 the period of personal cultivation had been extended to 12 years from the date of taking possession. But as the 5th respondent. who obtained possession for personal cultivation had transferred the suit lands to the 1st respondent on June 21, 1961, on which date the 12 years period had not expired, the appellant tenant was entitled to apply for restoration on the ground that the said landlord had ceased to cultivate the lands for the required period as provided under Section 52. | 1 | 2,743 | 1,351 | ### Instruction:
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having been duly complied with, Section 132 (2) of the Bombay Act stands attracted. The counsel pointed out that Sec. 132 deals with repeals and savings. Sub-section (1) had repealed the enactments specified in Schedule I to the extent specified in column No. 4 of the said Schedule. Schedule I shows that the Berar Act has been repealed in its entirety. Notwithstanding the repeal sub-section (2) has saved certain matters and one of the matters so saved is the obligation or liability already incurred before the commencement of the Bombay Act. The 5th respondent, who had incurred the obligation or liability to cultivate the lands for two ~ ears under the Berar Act before the commencement of the Bombay Act, has discharged the said obligation or liability and hence the tenant has no further rights which he can enforce. He also urged that S. 52 protects even cases where possession has been taken after the coming into force of the Bombay Act on the basis of an order for restoration obtained under the Berar Act. In support of this contention he relied on the decision in Ramchandra v. Tukaram, (1966) 1 SCR 594 = (AIR 1966 SC 557).7. Before we deal with the merits we will now dispose of the preliminary objection raised by Mr. Gupta and praying for cancellation of special leave granted by this Court. According to the learned counsel the appellant has deliberately made certain false statements in the application for grant of special leave and has misguided the Court. He also drew our attention to the statements made in paragraph 6 of the application wherein the appellant has stated that the 5th respondent had transferred the suit lands in favour of the first respondent on June 21, 1961 by taking in exchange 8 acres of land plus a sum of Rs. 30,000/-. Again in paragraph 10 of the petition the appellant has stated that his claim in these proceedings is for restoration of possession of the lands measuring 7 acres and 4 gunthas, the market value of which happens to be more than Rs. 20,000/-, and that this fact is further strengthened because of the 5th respondent exchanging his lands with the first respondent for a sum of Rs. 30,000/- plus 8 acres of land. The appellant has filed an affidavit stating that the statements contained in the special leave petition are true and correct to the best of my personal knowledge. From these statements Mr. Gupta pointed out that it is clear that the appellant has categorically stated that the value of the lands concerned in this appeal is over Rs. 20,000/- and he has also specifically stated that the suit lands were exchanged for Rs. 30,000/- plus 8 acres of lands and these statements have been affirmed to be true to the personal knowledge of the appellant.8. Mr. Gupta pointed out that these statements regarding valuation are absolutely false to the knowledge of the appellant as will be clear from the value given in the writ petition filed by the respondent in the High Court. In para I of the writ petition the first respondent has stated that the 5th respondent after transferring the suit lands of 7 acres and 4 gunthas has taken in exchange from him acres of land and a sum of Rs. 13,000/-. Thus making a total of Rs. 19,000/-. In the affidavit filed along with the writ petition the first respondent has again stated that the amount received from him along with 8 acres of land was Rs. 13,000 and the total value of the lands being only Rs. 19,000/-. He also drew our attention to the recitals in the judgment printed in the appeal records wherein the exchange has been stated as being of 8 acres of land plus a sum of Rs. 13,000. In view of these circumstances, the counsel points out that the statements made by the appellant, which have been affirmed to be true to his knowledge about valuation of the suit lands being over Rs. 20,000/and the exchange having been obtained of 8 acres and Rs. 30,000/- are false and have been deliberately made to mislead the Court so as to obtain special leave making it appear that the requirement regarding valuation is satisfied. Mr. Gupta drew our attention to the decisions of this Court, namely, Hari Narain v. Badri Das, 1964-2 SCR 203 (AIR 1963 SC 1558 ), Sita Bai v. Soni Vanji Wani, Civil Appeal No. 982 of 1965 D/- 25-4-1968 (SC) and S. R. Shetty v. Phirozeshah Nusserwanji Civil Appeal No. 155 of 1963, D/- 5-4-1963 (SC). Mr. Gupta pointed out that in all these decisions when there has been false statements made on material particulars or matters of importance either on facts or about valuation, this Court had cancelled special leave already granted.The proposition enunciated by Mr. Gupta that the statements in the special leave application should not contain any untrue or false statements either in material particulars or on matters of importance or about valuation is certainly laid down in those decisions and the requirement in this regard cannot be over emphasised.In (1964) 2 SCR 203 = (AIR 1963 SC 1558 ) this Court held that the special leave petition contained inaccurate, untrue and misleading statements and cancelled special leave already granted. This Court observed at p. 209 (of SCR) = (at p. 1560 of AIR) as follows:"It is of utmost importance that in making material statements and setting forth grounds in applications for special leave, care must be taken not to make any statements which are inaccurate untrue or misleading. In dealing with applications for special leave, the Court naturally takes statements of fact and grounds of fact contained in the petitions at their face value and it would be unfair to betray the confidence of the Court by making statements which are untrue and misleading."9. From the facts in that case it will be seen that the material statements made in the special leave petition were false.
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sole test for the applicability of S. 52, the position, in our view, will be very anomalous. For instance if a landlord had taken possession on December 29, 1958, S. 52 will not apply and the requirement of two years personal cultivation may not also become necessary as the Berar Act stands repealed as on December 30, 1958. Similarly if the landlord had taken possession and had also complied with the requirement of two years personal cultivation long before December 30, 1958, but nevertheless if he is in possession of the land on December 30, 1958, according to the Full Bench, Section 52 will stand attracted. No doubt the Full Bench has not answered the second question posed before it but the reasoning of the decision will be to that effect if the test of possession on December 30, 1958 is the only criteria.31. We are of the opinion that the question of S. 52 being retrospective or not has no material bearing in interpreting that section. That section had necessarily to refer Sections 38, 39 and 39A as they were also provisions enabling a landlord to get possession from a lessee. It is in the light of these matters that the expressions occurring therein have to be given their natural meaning. The Full Bench has misinterpreted that section.32. In interpreting S. 52,in our opinion, S. 132 (2) (i) will be helpful. The obligation of the landlord when he takes possession of the land from the tenant under the Berar Act is to cultivate it personally for two years and once the landlord complies with that requirement before the Bombay Act came into force, the tenants right to get restoration stands extinguished as the landlord has discharged hisdue regard to the provisions of the two statutes and what has been stated by us earlier the position is that if the landlord on December 30, 1958 had completed the two years period of personal cultivation, his right not to be disturbed is continued and preserved under Section 132 (2) (i) of the Bombay Act. Again if the landlord in pursuance of an order obtained under the Berar Act, takes possession, after the commencement of the Bombay Act, Section 52 applies to him and his original obligation to cultivate personally for two years under the Berar Act gets extended by the 12 years period provided under that section. If he ceases to so cultivate within the period of 12 years from his taking possession, the tenant gets a right to apply for restoration of the land.34. The several aspects enumerated above have not been considered by the Full Bench of the Bombay High Court and it has rested its decision for applying Section 52 by applying the sole test whether the landlord has taken possession before or after December 30, 1958. Such a test is not warranted by the provisions of both the statutes read together. A fair reading of Section 52 also, in our opinion, leads to the same conclusion. Section 52 providesthe tenancy being terminated under Section 9 of the Berar Act;(ii) the landlord taking Possession of such land on the basis of such termination of the tenancy;(iii) the landlord failing to use the land for the purpose specified in the notice under Section 9 of the Berar Act;(iv) failure to use the land for the purpose mentioned in the notice within one year from the date on which he took possession;(v) the landlord ceasing to use the land for the purpose for which he obtains possession within 12 years of his takingTo the case of a landlord who had already completed two years personal cultivation before Dec. 30, 1958, the requirement of his failing to use the land for the purpose specified in the notice under Section 9 within one year from the date of his taking possession, will have no application whatsoever. The normal and reasonable construction to be placed upon Section 52 is that it will apply only to cases of lands, the possession of which was obtained by the landlord under Section 9 of the Berar Act, but in respect of which the period of two years disability imposed under Section 9 (6) read with Rule 9 of the Rules was not over before the coming into force of the Bombay Act. In respect of such landlords, Section 52 enlarges the period for which he is required to personally cultivate the lands. In this respect we are inclined to agree with the view of Mr. Justice Wagle.36. To conclude Section 52 applies to all cases where possession is taken by the landlord on or after December 30, 1958 on the basis of an order obtained under the Berar Act. It applies to cases where possession had been taken by a landlord under the Berar Act but the two years period of personal cultivation had not been completed when the Bombay Act came into force. The instances of obtaining possession under Ss. 38, 39 or 39-A of the Bombay Act have not been considered by us in this appeal.37. It follows that Section 52 of the Bombay Act applies to the case before us, as the landlord has not completed two years personal cultivation on December 30, 1958, the date on which the Bombay Act came into force. He had taken possession on April 4, 1957, and the two years period will expire only on April 4, 1959. In the meanwhile the Bombay Act had come into force on December 30, 1958. Under Section 52 the period of personal cultivation had been extended to 12 years from the date of taking possession. But as the 5th respondent. who obtained possession for personal cultivation had transferred the suit lands to the 1st respondent on June 21, 1961, on which date the 12 years period had not expired, the appellant tenant was entitled to apply for restoration on the ground that the said landlord had ceased to cultivate the lands for the required period as provided under Section 52.
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S.L. Kirloskar & Others Vs. Union of India & Others | jurisdiction to serve show cause notice upon the petitioners as the petitioners are neither manufacturers nor producers of excisable goods cleared from the factory between January 1, 1981 and November 30, 1985. The learned Counsel urged that the notice is issued on the assumption that the Directors and the Executives of the Public Limited Company are the manufacturers and are liable to payment of excise duty under section 3 of the Central Excise Act. The submission is correct and deserves acceptance . Section 3 of the Central Excise Act is a charging section and provides that there shall be levied and collected duties of excise on all excisable goods at the rates, set forth in the Schedule to the Central Excise Tariff Act, 1985. The expression `manufacture is defined under section 2(f) of the Act and includes any process, incidental or ancillary to the completion of a manufactured product. The word `manufacture, provides section 2(f) of the Act, shall be construed accordingly and shall include not only a person who employs hired labour in the production or manufacture of excisable goods, but also any person who engages in the production or manufacture on his own account. Rule 7 in Chapter III of the Central Excise Rules provides that every person who produces, or manufactures any excisable goods, shall pay the duty leviable on such goods. Rule 9(2) then prescribes that if any excisable goods are in contravention of sub-rule (1), removed from any place specified therein, then the producer or manufacturer thereof shall pay the duty leviable on such goods upon written demand made by the proper officer, and shall also be liable to penalty. Rule 173Q provides for levy of penalty on manufacturer or producer and sub-rule (2) provides for the mode of levy and rate of penalty. Referring to these relevant provisions, Shri Andhyarujina submitted that the liability for payment of penalty is that of the manufacturer or the producer and the manufacturer of the excisable goods in the present case was Public Limited Company. The learned Counsel urged that neither the provisions of the Act, nor the rules anywhere prescribe for levy of penalty upon the Directors and the Executives of the Company. The submission is correct and deserves acceptance. The expression `manufacturer as defined under the Act makes the Company liable for payment of excise duty and the Company being a legal entity, the liability of the Company cannot be foisted on the Directors of the Company. Under the Companies Act, the affairs of the Company and the ultimate control of the Company lies with the Board of Directors and neither the Board of Directors, nor the individual Director is liable to discharge the liabilities of the Company unless the Statute so specifically provides. The reliance by Shri Andhyarujina in this connection on the decision of the Division Bench of this Court reported in 1984 Maharashtra Law Journal 117, (Suresh Tulsidas Kilachand and others v. Collector of Bombay and others), is appropriate.Shri Desai, learned Counsel appearing on behalf of the Department, submitted that though the Company is legal entity, the functions of the Company are performed in accordance with the desire of the Board of Directors and the Executives and, therefore, the Board of Directors and the Executives are liable for payment of penalty. The submission is only required to be stated to be rejected. It is impossible to accept the claim that the penal liability can be enforced against a person in absence of specific provision under the Statute. Shri Desai then referred to the provisions of Rule 209A. The submission cannot be accepted for more than one reason. In the first instance, Rule 209A was enacted with effect from April 14, 1986. Being a rule for levy of penalty, the rule cannot be construed with retrospective effect. The show cause notice, in the present case, is in respect of evasion of excise duty for the period between January 1, 1981 and November 30, 1985. Rule 209A which came on the Statute for the first time in April 1986 cannot be attracted to make Directors and Executives liable. Secondly, the rule makes any person who is in any way concerned in removing excisable goods, with the knowledge that the goods are liable for confiscation, answerable. It is not the claim of the Department in the show cause notice that any of the Directors and Executives were in any way concerned in removing the excisable goods with the knowledge that the same are liable for confiscation. In our judgment, Rule 209A has no application whatsoever to the facts of the present case and the show cause notice served on the petitioners cannot be sustained.3.Shri Desai then submitted that even assuming that the Collector of Central Excise lacked jurisdiction to serve show cause notice on the petitioners, still this Court should refrain from exercising jurisdiction under Article 226 of the Constitution and striking down the show cause notice. It was urged by the learned Counsel that the petitioners should be driven to appear before the Collector and advance their contentions and the Collector would be entitled to adjudicate whether the petitioners are liable. It is impossible to accede to the submission. This Court is bound to entertain the petition when the grievance is that the show cause notice is issued by the Collector without any jurisdiction whatsoever. An identical contention was raised before the Division Bench of this Court to which one of us (Pendse, J.) was a party, and turned down in the decision reported in 1991(52) Excise Law Times 500 (Tata Engineering and Locomotive Company Ltd. v. Union of India). It was held that the claim of the Department that the proceedings commenced with the service of show cause notice should be permitted to continue cannot be accepted when the show cause notice was issued without any jurisdiction and the show cause notice could not be sustained by reference to any of the provisions of law. In our judgment, the petitioners are entitled to relief. | 1[ds]The expression `manufacturer as defined under the Act makes the Company liable for payment of excise duty and the Company being a legal entity, the liability of the Company cannot be foisted on the Directors of the Company. Under the Companies Act, the affairs of the Company and the ultimate control of the Company lies with the Board of Directors and neither the Board of Directors, nor the individual Director is liable to discharge the liabilities of the Company unless the Statute so specifically provides. Thereliance by Shri Andhyarujina in this connection on the decision of the Division Bench of this Court reported in 1984 Maharashtra Law Journal 117, (Suresh Tulsidas Kilachand and others v. Collector of Bombay and others), isthe first instance, Rule 209A was enacted with effect from April 14, 1986. Being a rule for levy of penalty, the rule cannot be construed with retrospective effect. The show cause notice, in the present case, is in respect of evasion of excise duty for the period between January 1, 1981 and November 30, 1985. Rule 209A which came on the Statute for the first time in April 1986 cannot be attracted to make Directors and Executives liable. Secondly, the rule makes any person who is in any way concerned in removing excisable goods, with the knowledge that the goods are liable for confiscation, answerable. It is not the claim of the Department in the show cause notice that any of the Directors and Executives were in any way concerned in removing the excisable goods with the knowledge that the same are liable for confiscation. In our judgment, Rule 209A has no application whatsoever to the facts of the present case and the show cause notice served on the petitioners cannot be sustained.This Court is bound to entertain the petition when the grievance is that the show cause notice is issued by the Collector without any jurisdiction whatsoever. An identical contention was raised before the Division Bench of this Court to which one of us (Pendse, J.) was a party, and turned down in the decision reported in 1991(52) Excise Law Times 500 (Tata Engineering and Locomotive Company Ltd. v. Union of India). It was held that the claim of the Department that the proceedings commenced with the service of show cause notice should be permitted to continue cannot be accepted when the show cause notice was issued without any jurisdiction and the show cause notice could not be sustained by reference to any of the provisions of law. In our judgment, the petitioners are entitled to relief. | 1 | 1,495 | 479 | ### Instruction:
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jurisdiction to serve show cause notice upon the petitioners as the petitioners are neither manufacturers nor producers of excisable goods cleared from the factory between January 1, 1981 and November 30, 1985. The learned Counsel urged that the notice is issued on the assumption that the Directors and the Executives of the Public Limited Company are the manufacturers and are liable to payment of excise duty under section 3 of the Central Excise Act. The submission is correct and deserves acceptance . Section 3 of the Central Excise Act is a charging section and provides that there shall be levied and collected duties of excise on all excisable goods at the rates, set forth in the Schedule to the Central Excise Tariff Act, 1985. The expression `manufacture is defined under section 2(f) of the Act and includes any process, incidental or ancillary to the completion of a manufactured product. The word `manufacture, provides section 2(f) of the Act, shall be construed accordingly and shall include not only a person who employs hired labour in the production or manufacture of excisable goods, but also any person who engages in the production or manufacture on his own account. Rule 7 in Chapter III of the Central Excise Rules provides that every person who produces, or manufactures any excisable goods, shall pay the duty leviable on such goods. Rule 9(2) then prescribes that if any excisable goods are in contravention of sub-rule (1), removed from any place specified therein, then the producer or manufacturer thereof shall pay the duty leviable on such goods upon written demand made by the proper officer, and shall also be liable to penalty. Rule 173Q provides for levy of penalty on manufacturer or producer and sub-rule (2) provides for the mode of levy and rate of penalty. Referring to these relevant provisions, Shri Andhyarujina submitted that the liability for payment of penalty is that of the manufacturer or the producer and the manufacturer of the excisable goods in the present case was Public Limited Company. The learned Counsel urged that neither the provisions of the Act, nor the rules anywhere prescribe for levy of penalty upon the Directors and the Executives of the Company. The submission is correct and deserves acceptance. The expression `manufacturer as defined under the Act makes the Company liable for payment of excise duty and the Company being a legal entity, the liability of the Company cannot be foisted on the Directors of the Company. Under the Companies Act, the affairs of the Company and the ultimate control of the Company lies with the Board of Directors and neither the Board of Directors, nor the individual Director is liable to discharge the liabilities of the Company unless the Statute so specifically provides. The reliance by Shri Andhyarujina in this connection on the decision of the Division Bench of this Court reported in 1984 Maharashtra Law Journal 117, (Suresh Tulsidas Kilachand and others v. Collector of Bombay and others), is appropriate.Shri Desai, learned Counsel appearing on behalf of the Department, submitted that though the Company is legal entity, the functions of the Company are performed in accordance with the desire of the Board of Directors and the Executives and, therefore, the Board of Directors and the Executives are liable for payment of penalty. The submission is only required to be stated to be rejected. It is impossible to accept the claim that the penal liability can be enforced against a person in absence of specific provision under the Statute. Shri Desai then referred to the provisions of Rule 209A. The submission cannot be accepted for more than one reason. In the first instance, Rule 209A was enacted with effect from April 14, 1986. Being a rule for levy of penalty, the rule cannot be construed with retrospective effect. The show cause notice, in the present case, is in respect of evasion of excise duty for the period between January 1, 1981 and November 30, 1985. Rule 209A which came on the Statute for the first time in April 1986 cannot be attracted to make Directors and Executives liable. Secondly, the rule makes any person who is in any way concerned in removing excisable goods, with the knowledge that the goods are liable for confiscation, answerable. It is not the claim of the Department in the show cause notice that any of the Directors and Executives were in any way concerned in removing the excisable goods with the knowledge that the same are liable for confiscation. In our judgment, Rule 209A has no application whatsoever to the facts of the present case and the show cause notice served on the petitioners cannot be sustained.3.Shri Desai then submitted that even assuming that the Collector of Central Excise lacked jurisdiction to serve show cause notice on the petitioners, still this Court should refrain from exercising jurisdiction under Article 226 of the Constitution and striking down the show cause notice. It was urged by the learned Counsel that the petitioners should be driven to appear before the Collector and advance their contentions and the Collector would be entitled to adjudicate whether the petitioners are liable. It is impossible to accede to the submission. This Court is bound to entertain the petition when the grievance is that the show cause notice is issued by the Collector without any jurisdiction whatsoever. An identical contention was raised before the Division Bench of this Court to which one of us (Pendse, J.) was a party, and turned down in the decision reported in 1991(52) Excise Law Times 500 (Tata Engineering and Locomotive Company Ltd. v. Union of India). It was held that the claim of the Department that the proceedings commenced with the service of show cause notice should be permitted to continue cannot be accepted when the show cause notice was issued without any jurisdiction and the show cause notice could not be sustained by reference to any of the provisions of law. In our judgment, the petitioners are entitled to relief.
### Response:
1
### Explanation:
The expression `manufacturer as defined under the Act makes the Company liable for payment of excise duty and the Company being a legal entity, the liability of the Company cannot be foisted on the Directors of the Company. Under the Companies Act, the affairs of the Company and the ultimate control of the Company lies with the Board of Directors and neither the Board of Directors, nor the individual Director is liable to discharge the liabilities of the Company unless the Statute so specifically provides. Thereliance by Shri Andhyarujina in this connection on the decision of the Division Bench of this Court reported in 1984 Maharashtra Law Journal 117, (Suresh Tulsidas Kilachand and others v. Collector of Bombay and others), isthe first instance, Rule 209A was enacted with effect from April 14, 1986. Being a rule for levy of penalty, the rule cannot be construed with retrospective effect. The show cause notice, in the present case, is in respect of evasion of excise duty for the period between January 1, 1981 and November 30, 1985. Rule 209A which came on the Statute for the first time in April 1986 cannot be attracted to make Directors and Executives liable. Secondly, the rule makes any person who is in any way concerned in removing excisable goods, with the knowledge that the goods are liable for confiscation, answerable. It is not the claim of the Department in the show cause notice that any of the Directors and Executives were in any way concerned in removing the excisable goods with the knowledge that the same are liable for confiscation. In our judgment, Rule 209A has no application whatsoever to the facts of the present case and the show cause notice served on the petitioners cannot be sustained.This Court is bound to entertain the petition when the grievance is that the show cause notice is issued by the Collector without any jurisdiction whatsoever. An identical contention was raised before the Division Bench of this Court to which one of us (Pendse, J.) was a party, and turned down in the decision reported in 1991(52) Excise Law Times 500 (Tata Engineering and Locomotive Company Ltd. v. Union of India). It was held that the claim of the Department that the proceedings commenced with the service of show cause notice should be permitted to continue cannot be accepted when the show cause notice was issued without any jurisdiction and the show cause notice could not be sustained by reference to any of the provisions of law. In our judgment, the petitioners are entitled to relief.
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THE STATE OF HARYANA Vs. SUNDER LAL | only an offer on behalf of the State. If compensation was accepted without protest, it binds such party but subject to Section 28-A. Possession of the acquired land would be taken only by way of a memorandum, Panchnama, which is a legally accepted norm. It would not be possible to take any physical possession. Therefore, subsequent continuation, if any, had by the erstwhile owner is only illegal or unlawful possession which does not bind the Government nor vested under Section 16 divested in the illegal occupant. Considered from this perspective, we hold that the High Court was not justified in interfering with the award.?14. In Balmokand Khatri Educational and Industrial Trust, Amritsar v. State of Punjab, (1996) 4 SCC 212 , it has been observed that the normal rule of taking possession is drafting the panchnama in the presence of panchas. This Court observed:?4. It is seen that the entire gamut of the acquisition proceedings stood completed by 17-4-1976 by which date possession of the land had been taken. No doubt, Shri Parekh has contended that the appellant still retained their possession. It is now well-settled legal position that it is difficult to take physical possession of the land under compulsory acquisition. The normal mode of taking possession is drafting the panchnama in the presence of panchas and taking possession and giving delivery to the beneficiaries is the accepted mode of taking possession of the land. Subsequent thereto, the retention of possession would tantamount only to illegal or unlawful possession.5. Under these circumstances, merely because the appellant retained possession of the acquired land, the acquisition cannot be said to be bad in law. It is then contended by Shri Parekh that the appellant-Institution is running an educational institution and intends to establish a public school and that since other land was available, the Government would have acquired some other land leaving the acquired land for the appellant. In the counter-affidavit filed in the High Court, it was stated that apart from the acquired land, the appellant also owned 482 canals 19 marlas of land. Thereby, it is seen that the appellant is not disabled to proceed with the continuation of the educational institution which it seeks to establish. It is then contended that an opportunity may be given to the appellant to make a representation to the State Government. We find that it is not necessary for us to give any such liberty since acquisition process has already been completed.?15. In P.K. Kalburqi v. State of Karnataka, (2005) 12 SCC 489, this Court held that if the land was vacant and unoccupied, taking symbolical possession would be enough.16. In Sita Ram Bhandar Society, New Delhi v. Lieutenant Governor, Government of NCT, Delhi, (2009) 10 SCC 501 , it was observed that mode of taking possession is by way of drawing of panchnama. Similar view has been reiterated in Omprakash Verma v. State of Andhra Pradesh, (2010) 13 SCC 158. 17. In M. Venkatesh v. Commissioner, Bangalore Development Authority, (2015) 17 SCC 1 , again it was reiterated that mode of taking possession is by drawing a panchnama. It is further held that the mode of taking possession adopted by BDA was permissible.18. In State of Madhya Pradesh v. Narmada Bachao Andolan, (2011) 7 SCC 639 , this Court held that it would depend upon the facts that of the individual case whether possession has been taken or not. We are of the considered opinion that possession has been taken as is apparent from the memorandum dated 21.7.2003 placed on record.19. Learned counsel for the respondent has submitted that there were two rooms in existence admeasuring 15?x12? and 18?x12? with boundary wall. He has taken us to the site plan, in which, now 10 shops are shown, besides that there are three rooms, one kitchen, and verandah. Thus, most of these structures have been erected subsequently. Even if there were two outhouses in existence at the time of issuance of Notification under Section 4 of the Land Acquisition Act, 1894 in the shape of rooms admeasuring 15x12 and 18x12 and boundary wall, obviously it was not meant for the residential purposes, but meant for agricultural purposes. It appears that once possession had been taken after making a trespass upon the land, construction has been raised. Most of these structures were not in existence as per the finding recorded by the High Court. Thus, the site plan rather than espousing the cause of the respondent, defeats the same. Once possession had been taken and compensation has been admittedly collected by the respondent, it was not open for him to apply for de-notification of land under Section 48 of the Land Acquisition Act, 1894 or for its release.20. The submission raised that land of two other incumbents has been released in 2006 and 2014, is of no avail. There is no concept of negative equality and the respondent cannot be permitted to take advantage of his wrong. The land had been acquired and thereafter respondent has trespassed upon the land and has raised construction, in completely illegal manner. He is not entitled to protect it. Based on such encroachment, he is not entitled to release of the land.21. It cannot be said that land acquired is unutilised land, as a matter of fact, lot of development has taken place as there is encroachment made, as such, land could not have been utilised and by making unwarranted interference by the High Court, the acquisition was ordered to be quashed. We are of the opinion that the prayer made by the respondent to apply for releasing the land as per the Notification dated 14.9.2018, cannot be entertained. The respondent cannot be given such a right as he has not come to the Court with clean hands. He is an encroacher and cannot be said to be entitled to any indulgence.22. It is apparent that acquisition has attained finality, the award was passed, compensation was collected and possession was taken long back in the year 2003. | 1[ds]8. The drawing of panchnama of taking over of possession is not disputed. However, it was submitted that since there were two rooms, possession could not have been taken over in the manner in which it is stated in the aforesaid panchnama.9. It is a settled proposition of law that when the State acquires the large tract of land and draws the panchnama of taking possession, the same is enough for taking possession of the land. In the instant case not only the panchnama had been drawn, State has taken the possession by marking the land and a watchman was also posted to look after theare of the considered opinion that possession has been taken as is apparent from the memorandum dated 21.7.2003 placed onmost of these structures have been erected subsequently. Even if there were two outhouses in existence at the time of issuance of Notification under Section 4 of the Land Acquisition Act, 1894 in the shape of rooms admeasuring 15x12 and 18x12 and boundary wall, obviously it was not meant for the residential purposes, but meant for agricultural purposes. It appears that once possession had been taken after making a trespass upon the land, construction has been raised. Most of these structures were not in existence as per the finding recorded by the High Court. Thus, the site plan rather than espousing the cause of the respondent, defeats the same. Once possession had been taken and compensation has been admittedly collected by the respondent, it was not open for him to apply for de-notification of land under Section 48 of the Land Acquisition Act, 1894 or for its release.20. The submission raised that land of two other incumbents has been released in 2006 and 2014, is of no avail. There is no concept of negative equality and the respondent cannot be permitted to take advantage of his wrong. The land had been acquired and thereafter respondent has trespassed upon the land and has raised construction, in completely illegal manner. He is not entitled to protect it. Based on such encroachment, he is not entitled to release of the land.21. It cannot be said that land acquired is unutilised land, as a matter of fact, lot of development has taken place as there is encroachment made, as such, land could not have been utilised and by making unwarranted interference by the High Court, the acquisition was ordered to be quashed. We are of the opinion that the prayer made by the respondent to apply for releasing the land as per the Notification dated 14.9.2018, cannot be entertained. The respondent cannot be given such a right as he has not come to the Court with clean hands. He is an encroacher and cannot be said to be entitled to any indulgence.22. It is apparent that acquisition has attained finality, the award was passed, compensation was collected and possession was taken long back in the year 2003. | 1 | 3,509 | 539 | ### 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:
only an offer on behalf of the State. If compensation was accepted without protest, it binds such party but subject to Section 28-A. Possession of the acquired land would be taken only by way of a memorandum, Panchnama, which is a legally accepted norm. It would not be possible to take any physical possession. Therefore, subsequent continuation, if any, had by the erstwhile owner is only illegal or unlawful possession which does not bind the Government nor vested under Section 16 divested in the illegal occupant. Considered from this perspective, we hold that the High Court was not justified in interfering with the award.?14. In Balmokand Khatri Educational and Industrial Trust, Amritsar v. State of Punjab, (1996) 4 SCC 212 , it has been observed that the normal rule of taking possession is drafting the panchnama in the presence of panchas. This Court observed:?4. It is seen that the entire gamut of the acquisition proceedings stood completed by 17-4-1976 by which date possession of the land had been taken. No doubt, Shri Parekh has contended that the appellant still retained their possession. It is now well-settled legal position that it is difficult to take physical possession of the land under compulsory acquisition. The normal mode of taking possession is drafting the panchnama in the presence of panchas and taking possession and giving delivery to the beneficiaries is the accepted mode of taking possession of the land. Subsequent thereto, the retention of possession would tantamount only to illegal or unlawful possession.5. Under these circumstances, merely because the appellant retained possession of the acquired land, the acquisition cannot be said to be bad in law. It is then contended by Shri Parekh that the appellant-Institution is running an educational institution and intends to establish a public school and that since other land was available, the Government would have acquired some other land leaving the acquired land for the appellant. In the counter-affidavit filed in the High Court, it was stated that apart from the acquired land, the appellant also owned 482 canals 19 marlas of land. Thereby, it is seen that the appellant is not disabled to proceed with the continuation of the educational institution which it seeks to establish. It is then contended that an opportunity may be given to the appellant to make a representation to the State Government. We find that it is not necessary for us to give any such liberty since acquisition process has already been completed.?15. In P.K. Kalburqi v. State of Karnataka, (2005) 12 SCC 489, this Court held that if the land was vacant and unoccupied, taking symbolical possession would be enough.16. In Sita Ram Bhandar Society, New Delhi v. Lieutenant Governor, Government of NCT, Delhi, (2009) 10 SCC 501 , it was observed that mode of taking possession is by way of drawing of panchnama. Similar view has been reiterated in Omprakash Verma v. State of Andhra Pradesh, (2010) 13 SCC 158. 17. In M. Venkatesh v. Commissioner, Bangalore Development Authority, (2015) 17 SCC 1 , again it was reiterated that mode of taking possession is by drawing a panchnama. It is further held that the mode of taking possession adopted by BDA was permissible.18. In State of Madhya Pradesh v. Narmada Bachao Andolan, (2011) 7 SCC 639 , this Court held that it would depend upon the facts that of the individual case whether possession has been taken or not. We are of the considered opinion that possession has been taken as is apparent from the memorandum dated 21.7.2003 placed on record.19. Learned counsel for the respondent has submitted that there were two rooms in existence admeasuring 15?x12? and 18?x12? with boundary wall. He has taken us to the site plan, in which, now 10 shops are shown, besides that there are three rooms, one kitchen, and verandah. Thus, most of these structures have been erected subsequently. Even if there were two outhouses in existence at the time of issuance of Notification under Section 4 of the Land Acquisition Act, 1894 in the shape of rooms admeasuring 15x12 and 18x12 and boundary wall, obviously it was not meant for the residential purposes, but meant for agricultural purposes. It appears that once possession had been taken after making a trespass upon the land, construction has been raised. Most of these structures were not in existence as per the finding recorded by the High Court. Thus, the site plan rather than espousing the cause of the respondent, defeats the same. Once possession had been taken and compensation has been admittedly collected by the respondent, it was not open for him to apply for de-notification of land under Section 48 of the Land Acquisition Act, 1894 or for its release.20. The submission raised that land of two other incumbents has been released in 2006 and 2014, is of no avail. There is no concept of negative equality and the respondent cannot be permitted to take advantage of his wrong. The land had been acquired and thereafter respondent has trespassed upon the land and has raised construction, in completely illegal manner. He is not entitled to protect it. Based on such encroachment, he is not entitled to release of the land.21. It cannot be said that land acquired is unutilised land, as a matter of fact, lot of development has taken place as there is encroachment made, as such, land could not have been utilised and by making unwarranted interference by the High Court, the acquisition was ordered to be quashed. We are of the opinion that the prayer made by the respondent to apply for releasing the land as per the Notification dated 14.9.2018, cannot be entertained. The respondent cannot be given such a right as he has not come to the Court with clean hands. He is an encroacher and cannot be said to be entitled to any indulgence.22. It is apparent that acquisition has attained finality, the award was passed, compensation was collected and possession was taken long back in the year 2003.
### Response:
1
### Explanation:
8. The drawing of panchnama of taking over of possession is not disputed. However, it was submitted that since there were two rooms, possession could not have been taken over in the manner in which it is stated in the aforesaid panchnama.9. It is a settled proposition of law that when the State acquires the large tract of land and draws the panchnama of taking possession, the same is enough for taking possession of the land. In the instant case not only the panchnama had been drawn, State has taken the possession by marking the land and a watchman was also posted to look after theare of the considered opinion that possession has been taken as is apparent from the memorandum dated 21.7.2003 placed onmost of these structures have been erected subsequently. Even if there were two outhouses in existence at the time of issuance of Notification under Section 4 of the Land Acquisition Act, 1894 in the shape of rooms admeasuring 15x12 and 18x12 and boundary wall, obviously it was not meant for the residential purposes, but meant for agricultural purposes. It appears that once possession had been taken after making a trespass upon the land, construction has been raised. Most of these structures were not in existence as per the finding recorded by the High Court. Thus, the site plan rather than espousing the cause of the respondent, defeats the same. Once possession had been taken and compensation has been admittedly collected by the respondent, it was not open for him to apply for de-notification of land under Section 48 of the Land Acquisition Act, 1894 or for its release.20. The submission raised that land of two other incumbents has been released in 2006 and 2014, is of no avail. There is no concept of negative equality and the respondent cannot be permitted to take advantage of his wrong. The land had been acquired and thereafter respondent has trespassed upon the land and has raised construction, in completely illegal manner. He is not entitled to protect it. Based on such encroachment, he is not entitled to release of the land.21. It cannot be said that land acquired is unutilised land, as a matter of fact, lot of development has taken place as there is encroachment made, as such, land could not have been utilised and by making unwarranted interference by the High Court, the acquisition was ordered to be quashed. We are of the opinion that the prayer made by the respondent to apply for releasing the land as per the Notification dated 14.9.2018, cannot be entertained. The respondent cannot be given such a right as he has not come to the Court with clean hands. He is an encroacher and cannot be said to be entitled to any indulgence.22. It is apparent that acquisition has attained finality, the award was passed, compensation was collected and possession was taken long back in the year 2003.
|
Greaves Cotton Limited Vs. United Machinery And Appliances | Section 8 (1), provision has been made to the effect that the party intending to go in for arbitration must do so in his "first statement on the substance of the dispute" and not later than that. In other words, only if in the first statement on the substance of the dispute he does not make such prayer that he is debarred from making that prayer later. Section 8(1) of the New Act is, thus, an Improvement upon the provisions of Section 34 of the old Act......."8. In Rashtriya Ispat Nigam Ltd. and another v. Verma Transport Co., 2006(4) R.C.R.(Civil) 478 : (2006) 7 SCC 275 interpreting the expression "first statement on the substance of the dispute", this Court has held as under: -"36. The expression "first statement on the substance of the dispute" contained in Section 8(1) of the 1996 Act must be contradistinguished with the expression "written statement". It employs submission of the party to the jurisdiction of the judicial authority. What is, therefore, needed is a finding on the part of the judicial authority that the party has waived its right to invoke the arbitration clause. If an application is filed before actually filing the first statement on the substance of the dispute, in our opinion, the party cannot be said to have waived its right or acquiesced itself to the jurisdiction of the court. What is, therefore, material is as to whether the petitioner has filed his first statement on the substance of the dispute or not, if not, his application under Section 8 of the 1996 Act, may not be held wholly unmaintainable....."9. This Court in Rashtriya Ispat Nigam Ltd. (supra) further held as under: -"42. Waiver of a right on the part of a defendant to the lis must be gathered from the fact situation obtained in each case. In the instant case, the court had already passed an ad interim ex parte injunction. The appellants were bound to respond to the notice issued by the Court. While doing so, they raised a specific plea of bar of the suit in view of the existence of an arbitration agreement. Having regard to the provisions of the Act, they had, thus, shown their unequivocal intention to question the maintainability of the suit on the aforementioned ground."10. In Booz Allen and Hamilton Inc. v. SBI Homes Finance Limited and others, 2011(5) R.C.R.(Civil) 168 : (2011) 5 SCC 532 while dealing with the question, this Court, in paragraph 19 of the judgment, has laid down the law on the similar issue as under: -"19. Where a suit is filed by one of the parties to an arbitration agreement against the other parties to the arbitration agreement, and if the defendants file an application under Section 8 stating that the parties should be referred to arbitration, the court (judicial authority) will have to decide:(i) whether there is an arbitration agreement among the parties;(ii) whether all the parties to the suit are parties to the arbitration agreement;(iii) whether the disputes which are the subject-matter of the suit fall within the scope of arbitration agreement;(iv) whether the defendant had applied under Section 8 of the Act before submitting his first statement on the substance of the dispute; and(v) whether the reliefs sought in the suit are those that can be adjudicated and granted in an arbitration."11. This Court in Booz Allen and Hamilton Inc. (supra), has further observed in paragraph 25 as under: -"25. Not only filing of the written statement in a suit, but filing of any statement, application, affidavit by a defendant prior to the filing of the written statement will be construed as "submission of a statement on the substance of the dispute", if by filing such statement/application/affidavit, the defendant shows his intention to submit himself to the jurisdiction of the court and waives his right to seek reference to arbitration. But filing of a reply by a defendant, to an application for temporary injunction/attachment before judgment/ appointment of Receiver, cannot be considered as submission of a statement on the substance of the dispute, as that is done to avoid an interim order being made against him."12. In view of the law laid down by this Court, as above, we find it difficult to agree with the High Court that in the present case merely moving an application seeking further time of eight weeks to file the written statement would amount to making first statement on the substance of the dispute. In our opinion, filing of an application without reply to the allegations of the plaint does not constitute first statement on the substance of the dispute. It does not appear from the language of sub-section (1) of Section 8 of the 1996 Act that the Legislature intended to include such a step like moving simple application of seeking extension of time to file written statement as first statement on the substance of the dispute. Therefore, in the facts and circumstances of the present case, as already narrated above, we are unable to hold that the appellant, by moving an application for extension of time of eight weeks to file written statement, has waived right to object to the jurisdiction of judicial authority.13. From the order impugned, it also reflects that before disposing of application under Section 8 of the 1996 Act the High Court has not looked into questions as to whether there is an agreement between the parties; whether disputes which are subject-matter of the suit fall within the scope of arbitration; and whether the reliefs sought in the suit are those that can be adjudicated and granted in arbitration. In view of the above, we think it just and proper to request the High Court to decide the application afresh in the light of law laid down by this Court in para 19 of the judgment in Booz Allen and Hamilton Inc. v. SBI Homes Finance Limited and others (supra) except the point, which has already been answered in the present case by us. | 1[ds]12. In view of the law laid down by this Court, as above, we find it difficult to agree with the High Court that in the present case merely moving an application seeking further time of eight weeks to file the written statement would amount to making first statement on the substance of the dispute. In our opinion, filing of an application without reply to the allegations of the plaint does not constitute first statement on the substance of the dispute. It does not appear from the language of sub-section (1) of Section 8 of the 1996 Act that the Legislature intended to include such a step like moving simple application of seeking extension of time to file written statement as first statement on the substance of the dispute. Therefore, in the facts and circumstances of the present case, as already narrated above, we are unable to hold that the appellant, by moving an application for extension of time of eight weeks to file written statement, has waived right to object to the jurisdiction of judicial authority.13. From the order impugned, it also reflects that before disposing of application under Section 8 of the 1996 Act the High Court has not looked into questions as to whether there is an agreement between the parties; whether disputes which are subject-matter of the suit fall within the scope of arbitration; and whether the reliefs sought in the suit are those that can be adjudicated and granted in arbitration. In view of the above, we think it just and proper to request the High Court to decide the application afresh in the light of law laid down by this Court in para 19 of the judgment in Booz Allen and Hamilton Inc. v. SBI Homes Finance Limited and others (supra) except the point, which has already been answered in the present case by us. | 1 | 2,087 | 339 | ### 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:
Section 8 (1), provision has been made to the effect that the party intending to go in for arbitration must do so in his "first statement on the substance of the dispute" and not later than that. In other words, only if in the first statement on the substance of the dispute he does not make such prayer that he is debarred from making that prayer later. Section 8(1) of the New Act is, thus, an Improvement upon the provisions of Section 34 of the old Act......."8. In Rashtriya Ispat Nigam Ltd. and another v. Verma Transport Co., 2006(4) R.C.R.(Civil) 478 : (2006) 7 SCC 275 interpreting the expression "first statement on the substance of the dispute", this Court has held as under: -"36. The expression "first statement on the substance of the dispute" contained in Section 8(1) of the 1996 Act must be contradistinguished with the expression "written statement". It employs submission of the party to the jurisdiction of the judicial authority. What is, therefore, needed is a finding on the part of the judicial authority that the party has waived its right to invoke the arbitration clause. If an application is filed before actually filing the first statement on the substance of the dispute, in our opinion, the party cannot be said to have waived its right or acquiesced itself to the jurisdiction of the court. What is, therefore, material is as to whether the petitioner has filed his first statement on the substance of the dispute or not, if not, his application under Section 8 of the 1996 Act, may not be held wholly unmaintainable....."9. This Court in Rashtriya Ispat Nigam Ltd. (supra) further held as under: -"42. Waiver of a right on the part of a defendant to the lis must be gathered from the fact situation obtained in each case. In the instant case, the court had already passed an ad interim ex parte injunction. The appellants were bound to respond to the notice issued by the Court. While doing so, they raised a specific plea of bar of the suit in view of the existence of an arbitration agreement. Having regard to the provisions of the Act, they had, thus, shown their unequivocal intention to question the maintainability of the suit on the aforementioned ground."10. In Booz Allen and Hamilton Inc. v. SBI Homes Finance Limited and others, 2011(5) R.C.R.(Civil) 168 : (2011) 5 SCC 532 while dealing with the question, this Court, in paragraph 19 of the judgment, has laid down the law on the similar issue as under: -"19. Where a suit is filed by one of the parties to an arbitration agreement against the other parties to the arbitration agreement, and if the defendants file an application under Section 8 stating that the parties should be referred to arbitration, the court (judicial authority) will have to decide:(i) whether there is an arbitration agreement among the parties;(ii) whether all the parties to the suit are parties to the arbitration agreement;(iii) whether the disputes which are the subject-matter of the suit fall within the scope of arbitration agreement;(iv) whether the defendant had applied under Section 8 of the Act before submitting his first statement on the substance of the dispute; and(v) whether the reliefs sought in the suit are those that can be adjudicated and granted in an arbitration."11. This Court in Booz Allen and Hamilton Inc. (supra), has further observed in paragraph 25 as under: -"25. Not only filing of the written statement in a suit, but filing of any statement, application, affidavit by a defendant prior to the filing of the written statement will be construed as "submission of a statement on the substance of the dispute", if by filing such statement/application/affidavit, the defendant shows his intention to submit himself to the jurisdiction of the court and waives his right to seek reference to arbitration. But filing of a reply by a defendant, to an application for temporary injunction/attachment before judgment/ appointment of Receiver, cannot be considered as submission of a statement on the substance of the dispute, as that is done to avoid an interim order being made against him."12. In view of the law laid down by this Court, as above, we find it difficult to agree with the High Court that in the present case merely moving an application seeking further time of eight weeks to file the written statement would amount to making first statement on the substance of the dispute. In our opinion, filing of an application without reply to the allegations of the plaint does not constitute first statement on the substance of the dispute. It does not appear from the language of sub-section (1) of Section 8 of the 1996 Act that the Legislature intended to include such a step like moving simple application of seeking extension of time to file written statement as first statement on the substance of the dispute. Therefore, in the facts and circumstances of the present case, as already narrated above, we are unable to hold that the appellant, by moving an application for extension of time of eight weeks to file written statement, has waived right to object to the jurisdiction of judicial authority.13. From the order impugned, it also reflects that before disposing of application under Section 8 of the 1996 Act the High Court has not looked into questions as to whether there is an agreement between the parties; whether disputes which are subject-matter of the suit fall within the scope of arbitration; and whether the reliefs sought in the suit are those that can be adjudicated and granted in arbitration. In view of the above, we think it just and proper to request the High Court to decide the application afresh in the light of law laid down by this Court in para 19 of the judgment in Booz Allen and Hamilton Inc. v. SBI Homes Finance Limited and others (supra) except the point, which has already been answered in the present case by us.
### Response:
1
### Explanation:
12. In view of the law laid down by this Court, as above, we find it difficult to agree with the High Court that in the present case merely moving an application seeking further time of eight weeks to file the written statement would amount to making first statement on the substance of the dispute. In our opinion, filing of an application without reply to the allegations of the plaint does not constitute first statement on the substance of the dispute. It does not appear from the language of sub-section (1) of Section 8 of the 1996 Act that the Legislature intended to include such a step like moving simple application of seeking extension of time to file written statement as first statement on the substance of the dispute. Therefore, in the facts and circumstances of the present case, as already narrated above, we are unable to hold that the appellant, by moving an application for extension of time of eight weeks to file written statement, has waived right to object to the jurisdiction of judicial authority.13. From the order impugned, it also reflects that before disposing of application under Section 8 of the 1996 Act the High Court has not looked into questions as to whether there is an agreement between the parties; whether disputes which are subject-matter of the suit fall within the scope of arbitration; and whether the reliefs sought in the suit are those that can be adjudicated and granted in arbitration. In view of the above, we think it just and proper to request the High Court to decide the application afresh in the light of law laid down by this Court in para 19 of the judgment in Booz Allen and Hamilton Inc. v. SBI Homes Finance Limited and others (supra) except the point, which has already been answered in the present case by us.
|
New India Assurance Co. Ltd Vs. Harshadbhai Amrutbhai Modhiya | do not strictly arise out of the mandatory provisions of any statute. Contracting out, as regards payment of interest by an employer, therefore, is not prohibited in law. 9. In Ved Prakash Garg (supra), this Court undoubtedly held that in terms of the contract of insurance entered into by and between the employer and the insurer under the provisions of the Motor Vehicles Act, 1988, which would also apply in a given case to the claim under the provisions of the Workmens Compensation Act, the insurer would also be liable for payment of interest stating: "A conjoint reading of these provisions in the insurance policy shows that the insurance company insured the employer-owners of the insured motor vehicles against all liabilities arising under the Workmens Compensation Act for which statutory coverage was required under Section 95 of the Motor Vehicles Act, 1939 which is analogous to Section 147 of the present Motor Vehicles Act noted earlier. Section 149 deals with "Duty of insurers to satisfy judgments and awards against persons insured in respect of third-party risks". The moot question is whether the insurance coverage as available to the insured employer-owners of the motor vehicles in relation to their liabilities under the Workmens Compensation Act on account of motor accident injuries caused to their workmen would include additional statutory liability foisted on the insured employers under Section 4-A(3) of the Compensation Act. The question posed for our consideration is required to be resolved in the light of the aforesaid statutory schemes of the two interacting Acts. It is not in dispute and cannot be disputed that the respondent-insurance companies concerned will be statutorily as well as contractually liable to make good the claims for compensation arising out of the employers liability computed as per the provisions of the Compensation Act. The short question is whether the phrase "liability arising under the Compensation Act" as employed by the proviso to sub-section (1) of Section 147 of the Motor Vehicles Act and as found in proviso to clause (i) of sub-section (1) of Section II of the insurance policy, would cover only the principal amount of compensation as computed by the Workmens Commissioner under the Compensation Act and made payable by the insured employer or whether it could also include interest and penalty as imposed on the insured employer under contingencies contemplated by Section 4-A(3)(a) and (b) of the Compensation Act." 10. Yet again in L.R. Ferro Alloys Ltd. (supra), this Court opined that if an amount of compensation is not deposited within a period of one month, the insurance company shall be liable to reimburse the owner only the amount of compensation with interest therefrom but not the penalty imposed on insurer employer for default of payment of amount stating: "The only contention put forth before us is that the entire liability including penalty and interest will have to be reimbursed by the insurance company and this aspect has not been examined by the learned Single Judge in the High Court and needs examination at our hands. In Ved Prakash Garg v. Premi Devi this Court after examining the entire scheme of the Act held that payment of interest and penalty are two distinct liabilities arising under the Act, while liability to pay interest is part and parcel of legal liability to pay compensation upon default of payment of that amount within one month. Therefore, claim for compensation along with interest will have to be made good jointly by the insurance company with the insured employer. But, so far as the penalty imposed on the insured employer is on account of his personal fault the insurance company cannot be made liable to reimburse penalty imposed on the employer. Hence the compensation with interest is payable by the insurance company but not penalty. Following the said decision and for the reasons stated therein, we modify the order made by the High Court to that extent. The appeal is allowed in part accordingly." We are, in this case, not concerned with a case where an accident has occurred by use of a motor vehicle in respect whereof the contract of insurance would be governed by the provisions of the Motor Vehicle Act, 1988. 11. As indicated hereinbefore, a contract of insurance is governed by the provisions of the Insurance Act. Unless the said contract is governed by the provisions of a statute, the parties are free to enter into a contract as for their own volition. The Act does not contain a provision like Section 147 of the Motor Vehicles Act. Where a statute does not provide for a compulsory insurance or the extent thereof, it will bear repetition to state, the parties are free to choose their own terms of contract. In that view of the matter, contracting out, so far as reimbursement of amount of interest is concerned, in our opinion, is not prohibited by a statute. The views taken by us find support from a recent judgment of this Court in P.J. Narayan v. Union of India and Ors. [2004 ACJ 452 ] wherein it was held: "1. This writ petition is for the purpose of directing Insurance Company to delete the clause in the Insurance Policy which provides that in case of compensation under the Workmens Compensation Act, 1923, the Insurance Company will not be liable to pay interest. We see no substance in the writ petition. There is no statutory liability on the Insurance Company. The statutory liability under the Workmens Compensation Act is on the employer. An insurance is a matter of contract between the Insurance Company and the insured. It is always open to the Insurance Company to refuse to insure. Similarly they are entitled to provide by contract that they will not take on liability for interest. In the absence of any statute to that effect, insurance Company cannot be forced by Courts to take on liabilities which they do not want to take on. The Writ Petition is dismissed. No order as to costs." 12. | 1[ds]We are, in this case, not concerned with a case where an accident has occurred by use of a motor vehicle in respect whereof the contract of insurance would be governed by the provisions of the Motor Vehicle Act, 1988 | 1 | 2,216 | 47 | ### 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:
do not strictly arise out of the mandatory provisions of any statute. Contracting out, as regards payment of interest by an employer, therefore, is not prohibited in law. 9. In Ved Prakash Garg (supra), this Court undoubtedly held that in terms of the contract of insurance entered into by and between the employer and the insurer under the provisions of the Motor Vehicles Act, 1988, which would also apply in a given case to the claim under the provisions of the Workmens Compensation Act, the insurer would also be liable for payment of interest stating: "A conjoint reading of these provisions in the insurance policy shows that the insurance company insured the employer-owners of the insured motor vehicles against all liabilities arising under the Workmens Compensation Act for which statutory coverage was required under Section 95 of the Motor Vehicles Act, 1939 which is analogous to Section 147 of the present Motor Vehicles Act noted earlier. Section 149 deals with "Duty of insurers to satisfy judgments and awards against persons insured in respect of third-party risks". The moot question is whether the insurance coverage as available to the insured employer-owners of the motor vehicles in relation to their liabilities under the Workmens Compensation Act on account of motor accident injuries caused to their workmen would include additional statutory liability foisted on the insured employers under Section 4-A(3) of the Compensation Act. The question posed for our consideration is required to be resolved in the light of the aforesaid statutory schemes of the two interacting Acts. It is not in dispute and cannot be disputed that the respondent-insurance companies concerned will be statutorily as well as contractually liable to make good the claims for compensation arising out of the employers liability computed as per the provisions of the Compensation Act. The short question is whether the phrase "liability arising under the Compensation Act" as employed by the proviso to sub-section (1) of Section 147 of the Motor Vehicles Act and as found in proviso to clause (i) of sub-section (1) of Section II of the insurance policy, would cover only the principal amount of compensation as computed by the Workmens Commissioner under the Compensation Act and made payable by the insured employer or whether it could also include interest and penalty as imposed on the insured employer under contingencies contemplated by Section 4-A(3)(a) and (b) of the Compensation Act." 10. Yet again in L.R. Ferro Alloys Ltd. (supra), this Court opined that if an amount of compensation is not deposited within a period of one month, the insurance company shall be liable to reimburse the owner only the amount of compensation with interest therefrom but not the penalty imposed on insurer employer for default of payment of amount stating: "The only contention put forth before us is that the entire liability including penalty and interest will have to be reimbursed by the insurance company and this aspect has not been examined by the learned Single Judge in the High Court and needs examination at our hands. In Ved Prakash Garg v. Premi Devi this Court after examining the entire scheme of the Act held that payment of interest and penalty are two distinct liabilities arising under the Act, while liability to pay interest is part and parcel of legal liability to pay compensation upon default of payment of that amount within one month. Therefore, claim for compensation along with interest will have to be made good jointly by the insurance company with the insured employer. But, so far as the penalty imposed on the insured employer is on account of his personal fault the insurance company cannot be made liable to reimburse penalty imposed on the employer. Hence the compensation with interest is payable by the insurance company but not penalty. Following the said decision and for the reasons stated therein, we modify the order made by the High Court to that extent. The appeal is allowed in part accordingly." We are, in this case, not concerned with a case where an accident has occurred by use of a motor vehicle in respect whereof the contract of insurance would be governed by the provisions of the Motor Vehicle Act, 1988. 11. As indicated hereinbefore, a contract of insurance is governed by the provisions of the Insurance Act. Unless the said contract is governed by the provisions of a statute, the parties are free to enter into a contract as for their own volition. The Act does not contain a provision like Section 147 of the Motor Vehicles Act. Where a statute does not provide for a compulsory insurance or the extent thereof, it will bear repetition to state, the parties are free to choose their own terms of contract. In that view of the matter, contracting out, so far as reimbursement of amount of interest is concerned, in our opinion, is not prohibited by a statute. The views taken by us find support from a recent judgment of this Court in P.J. Narayan v. Union of India and Ors. [2004 ACJ 452 ] wherein it was held: "1. This writ petition is for the purpose of directing Insurance Company to delete the clause in the Insurance Policy which provides that in case of compensation under the Workmens Compensation Act, 1923, the Insurance Company will not be liable to pay interest. We see no substance in the writ petition. There is no statutory liability on the Insurance Company. The statutory liability under the Workmens Compensation Act is on the employer. An insurance is a matter of contract between the Insurance Company and the insured. It is always open to the Insurance Company to refuse to insure. Similarly they are entitled to provide by contract that they will not take on liability for interest. In the absence of any statute to that effect, insurance Company cannot be forced by Courts to take on liabilities which they do not want to take on. The Writ Petition is dismissed. No order as to costs." 12.
### Response:
1
### Explanation:
We are, in this case, not concerned with a case where an accident has occurred by use of a motor vehicle in respect whereof the contract of insurance would be governed by the provisions of the Motor Vehicle Act, 1988
|
Commnr. Of Central Excise, Aurangabad Vs. M/S.Goodyear South Asia Tyres P. L.&Ors | per cent of the share capital. But we fail to see how it can be said that a limited company has any interest, direct or indirect, in the business carried on by one of its shareholders, even though the shareholding of such shareholder may be 50 per cent. Secondly, Atul Products Limited is a wholesale buyer of the dyes manufactured by the assessee but even then, since the transactions between them are as principal to principal, it is difficult to appreciate how the assessee could be said by virtue of that circumstance to have any interest, direct or indirect, in the business of Atul Products Limited. Atul Products Limited buys dyes from the assessee in wholesale on principal to principal basis and then sells such dyes in the market. The assessee is not concerned whether Atul Products Limited sells or does not sell the dyes purchased by it from the assessee nor is it concerned whether Atul Products Limited sells such dyes at a profit or at a loss. It is impossible to contend that the assessee has any direct or indirect interest in the business of a wholesale dealer who purchases dyes from it on principal to principal basis. No doubt, the two buyers had given Rs. 85.66 crores interest free loan to the assessee. However, that by itself may not be a reason to hold them as related persons within the meaning of Section 4(4)(c) of the Act. In the absence of any mutuality of interest existing between them, giving of this interest free loan could have been a basis to include the notional interest while arriving at the cost of product sold by the assessee to the two buyers. However, instead of doing that, the appellant wanted to make use of this factor to hold that the assessee and the two buyers are ?related persons? which position is difficult to comprehend having regard to the principle laid down in Atic Industries Ltds case. We thus, do not find any fault or error in the impugned judgment. These appeals are, accordingly, dismissed. Civil Appeal No. 4370 of 2003 The period involved in Civil Appeal No. 4370 of 2003 is from 01.07.2000 to 26.09.2000. It so happened that the joint venture agreement between the parties was terminated and the CEAT transferred its entire shareholding in the Goodyear group of which 97 percent is held by Goodyear USA and 3 per cent is held by Goodyear India Private Limited. Thus, the assessee became the subsidiary of Goodyear USA. On this basis, show cause notice was issued for the aforesaid period treating the assessee and Goodyear as related persons having mutuality of interest. No doubt that the assessee became the fully owned company of Goodyear, the relationship between the two would be that of related persons as they became ?inter connected undertaking? and are covered by the provisions of amended Section 4(4)(3)(b) of the Act which provides that the person would be deemed to be ?related? if: ?i. they are inter-connected undertakings, ii. they are relatives, iii. Amongst them the buyer is a relative and a distributor of the assessee, or a sub-distributor of such distributor, or iv. they are so associated they have interest, directly or indirectly, in the business of each other.? This position was not denied even by the assessee. However, their submission was that provisions of Rule 9 of the Valuation Rules are not attracted as this Rule applies only when assessee so arranges its affairs that the excisable goods are not sold by it except to or through a person who is related in the manner specified in either of the sub clauses (ii), (iii) or (iv) of Section 4(3)(b) of the Act. [Rule 9 does not cover clause (i)] This contention of the assessee is accepted by the CEGAT and the CEGAT is justified in adopting this course of action. It is clear that the two are companies and therefore, they are not relatives and therefore, clauses (ii) and (iii) are not applicable on the basis of it. Insofar as clause (iv) is concerned, what is to be shown is that they have interest, directly or indirectly, in the business of each other. The expression ?each other? would signify the element of mutuality and we have already held above that this mutuality principle has not been satisfied in the instant case. Apart from the above, it would be significant to mention that after taking over of the assessee company by Goodyear, more than 70 per cent of the sales by the assessee company are to the third parties. That apart, there was another contention of the assessee, viz., that the goods sold to the outsiders are at a lesser rates than sold to Goodyear. These two contentions have not been refuted by the Revenue. The case, therefore, would be clearly covered by a recent judgment of this Court in Commissioner of Central Excise, Hyderabad v. M/s. Detergents India Limited and Another [2015 (4) SCALE 631 ] wherein it was held:- ?We are of the view that the ?arrangement? spoken of in the proviso must be something by which the assessee and the related person ?arrange? that the goods are sold at something by which the assessee and the related person ?arrange? that the goods are sold at something below the normal price, so that tax is either avoided or evaded by such arrangement. Secondly, the expression ?generally? also shows that such goods must predominantly be sold by the assessee to or through the related person ? in mathematical terms, sales that are to or through a related person must consist of at least 50% of the goods that are manufactured and sold. The expression ?to or through a related person? again goes back to the ?arrangement? and is another way of saying that such sale can be effected directly to or indirectly through such related person. It is only when all three considerations are cumulatively met that proviso (iii) can be said to be attracted.? | 0[ds]We thus, do not find any fault or error in the impugned judgment. These appeals are, accordingly,from the above, it would be significant to mention that after taking over of the assessee company by Goodyear, more than 70 per cent of the sales by the assessee company are to the third parties. That apart, there was another contention of the assessee, viz., that the goods sold to the outsiders are at a lesser rates than sold to Goodyear. These two contentions have not been refuted by the Revenue. The case, therefore, would be clearly covered by a recent judgment of this Court in Commissioner of Central Excise, Hyderabad v. M/s. Detergents India Limited and Another [2015 (4) SCALE 631 ] wherein it wasare of the view that the ?arrangement? spoken of in the proviso must be something by which the assessee and the related person ?arrange? that the goods are sold at something by which the assessee and the related person ?arrange? that the goods are sold at something below the normal price, so that tax is either avoided or evaded by such arrangement. Secondly, the expression ?generally? also shows that such goods must predominantly be sold by the assessee to or through the related personin mathematical terms, sales that are to or through a related person must consist of at least 50% of the goods that are manufactured and sold. The expression ?to or through a related person? again goes back to the ?arrangement? and is another way of saying that such sale can be effected directly to or indirectly through such related person. It is only when all three considerations are cumulatively met that proviso (iii) can be said to be attracted.? | 0 | 2,962 | 331 | ### 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:
per cent of the share capital. But we fail to see how it can be said that a limited company has any interest, direct or indirect, in the business carried on by one of its shareholders, even though the shareholding of such shareholder may be 50 per cent. Secondly, Atul Products Limited is a wholesale buyer of the dyes manufactured by the assessee but even then, since the transactions between them are as principal to principal, it is difficult to appreciate how the assessee could be said by virtue of that circumstance to have any interest, direct or indirect, in the business of Atul Products Limited. Atul Products Limited buys dyes from the assessee in wholesale on principal to principal basis and then sells such dyes in the market. The assessee is not concerned whether Atul Products Limited sells or does not sell the dyes purchased by it from the assessee nor is it concerned whether Atul Products Limited sells such dyes at a profit or at a loss. It is impossible to contend that the assessee has any direct or indirect interest in the business of a wholesale dealer who purchases dyes from it on principal to principal basis. No doubt, the two buyers had given Rs. 85.66 crores interest free loan to the assessee. However, that by itself may not be a reason to hold them as related persons within the meaning of Section 4(4)(c) of the Act. In the absence of any mutuality of interest existing between them, giving of this interest free loan could have been a basis to include the notional interest while arriving at the cost of product sold by the assessee to the two buyers. However, instead of doing that, the appellant wanted to make use of this factor to hold that the assessee and the two buyers are ?related persons? which position is difficult to comprehend having regard to the principle laid down in Atic Industries Ltds case. We thus, do not find any fault or error in the impugned judgment. These appeals are, accordingly, dismissed. Civil Appeal No. 4370 of 2003 The period involved in Civil Appeal No. 4370 of 2003 is from 01.07.2000 to 26.09.2000. It so happened that the joint venture agreement between the parties was terminated and the CEAT transferred its entire shareholding in the Goodyear group of which 97 percent is held by Goodyear USA and 3 per cent is held by Goodyear India Private Limited. Thus, the assessee became the subsidiary of Goodyear USA. On this basis, show cause notice was issued for the aforesaid period treating the assessee and Goodyear as related persons having mutuality of interest. No doubt that the assessee became the fully owned company of Goodyear, the relationship between the two would be that of related persons as they became ?inter connected undertaking? and are covered by the provisions of amended Section 4(4)(3)(b) of the Act which provides that the person would be deemed to be ?related? if: ?i. they are inter-connected undertakings, ii. they are relatives, iii. Amongst them the buyer is a relative and a distributor of the assessee, or a sub-distributor of such distributor, or iv. they are so associated they have interest, directly or indirectly, in the business of each other.? This position was not denied even by the assessee. However, their submission was that provisions of Rule 9 of the Valuation Rules are not attracted as this Rule applies only when assessee so arranges its affairs that the excisable goods are not sold by it except to or through a person who is related in the manner specified in either of the sub clauses (ii), (iii) or (iv) of Section 4(3)(b) of the Act. [Rule 9 does not cover clause (i)] This contention of the assessee is accepted by the CEGAT and the CEGAT is justified in adopting this course of action. It is clear that the two are companies and therefore, they are not relatives and therefore, clauses (ii) and (iii) are not applicable on the basis of it. Insofar as clause (iv) is concerned, what is to be shown is that they have interest, directly or indirectly, in the business of each other. The expression ?each other? would signify the element of mutuality and we have already held above that this mutuality principle has not been satisfied in the instant case. Apart from the above, it would be significant to mention that after taking over of the assessee company by Goodyear, more than 70 per cent of the sales by the assessee company are to the third parties. That apart, there was another contention of the assessee, viz., that the goods sold to the outsiders are at a lesser rates than sold to Goodyear. These two contentions have not been refuted by the Revenue. The case, therefore, would be clearly covered by a recent judgment of this Court in Commissioner of Central Excise, Hyderabad v. M/s. Detergents India Limited and Another [2015 (4) SCALE 631 ] wherein it was held:- ?We are of the view that the ?arrangement? spoken of in the proviso must be something by which the assessee and the related person ?arrange? that the goods are sold at something by which the assessee and the related person ?arrange? that the goods are sold at something below the normal price, so that tax is either avoided or evaded by such arrangement. Secondly, the expression ?generally? also shows that such goods must predominantly be sold by the assessee to or through the related person ? in mathematical terms, sales that are to or through a related person must consist of at least 50% of the goods that are manufactured and sold. The expression ?to or through a related person? again goes back to the ?arrangement? and is another way of saying that such sale can be effected directly to or indirectly through such related person. It is only when all three considerations are cumulatively met that proviso (iii) can be said to be attracted.?
### Response:
0
### Explanation:
We thus, do not find any fault or error in the impugned judgment. These appeals are, accordingly,from the above, it would be significant to mention that after taking over of the assessee company by Goodyear, more than 70 per cent of the sales by the assessee company are to the third parties. That apart, there was another contention of the assessee, viz., that the goods sold to the outsiders are at a lesser rates than sold to Goodyear. These two contentions have not been refuted by the Revenue. The case, therefore, would be clearly covered by a recent judgment of this Court in Commissioner of Central Excise, Hyderabad v. M/s. Detergents India Limited and Another [2015 (4) SCALE 631 ] wherein it wasare of the view that the ?arrangement? spoken of in the proviso must be something by which the assessee and the related person ?arrange? that the goods are sold at something by which the assessee and the related person ?arrange? that the goods are sold at something below the normal price, so that tax is either avoided or evaded by such arrangement. Secondly, the expression ?generally? also shows that such goods must predominantly be sold by the assessee to or through the related personin mathematical terms, sales that are to or through a related person must consist of at least 50% of the goods that are manufactured and sold. The expression ?to or through a related person? again goes back to the ?arrangement? and is another way of saying that such sale can be effected directly to or indirectly through such related person. It is only when all three considerations are cumulatively met that proviso (iii) can be said to be attracted.?
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Director of Income Tax (International Taxation) Vs. May & Baker Limited | the assets were required and no indexation is to be allowed separately.""2. The said long term capital gain of Rs.1,42,85,91,065/was taxed@ 10% as per provisions to section 112(1). However, as per the provisions of section 112(1)(c)(ii), the amount of income-tax calculated on such long term capital gains should be at the rate of twenty percent, except as provided in the proviso below section 112. The provisions of section 112(1)(c)(ii) are reproduced herein under for reference :-"Tax on long-term capital gains :-112(1) Where the total income of an assessee includes any income arising from the transfer of a long-term capital asset, which is chargeable under the head "Capital Gains", the tax payable by the assessee on the total income shall be the aggregate of -(a) ...........(b) ..........(c) in the case of a nonresident (not being a company), or a foreign company,(i) .............(ii) the amount of income-tax calculated on such long-term capital gains at the rate of twenty percent;""3. Therefore, I have reason to believe that the incorrect application of rate of tax has resulted in short levy of tax of Rs.20,05,42,421/including interest of Rs.5,76,83,260/- under Section 234B. In other words, the income is escaped chargeable to tax to that extent. Accordingly, the assessment for A.Y. 2001-02 is being reopened and notice u/s.148 of the I.T. Act, is being issued."5. From the aforesaid reasons, it is clear that the only reason for reopening the assessment was that under Section 112(1)(c)(ii) of the Act, the long term capital gains are liable to be taxed at twenty percent, where as, in the present case, the tax has been levied under Section 112 at ten per cent.6. Section 112, to the extent relevant, reads thus :-"Tax on long-term capital gains.112. (1) Where the total income of an assessee includes any income, arising from the transfer of a long-term capital asset, which is chargeable under the head "Capital gains", the tax payable by the assessee on the total income shall be the aggregate of, -(a) ................(b) ...............(c) in the case of a nonresident (not being a company) or a foreign company,(i) the amount of income-tax payable on the total income as reduced by the amount of such long-term capital gains, had the total income as so reduced been its total income; and(ii) the amount of income-tax calculated on such long-term capital gains at the rate of twenty per cent ;(d) ................Provided, that where the tax payable in respect of any income arising from the transfer of a long-term capital asset, being listed securities or unit or zero coupon bond, exceeds ten per cent of the amount of capital gains before giving effect to the provisions of the second proviso to section 48, then, such excess shall be ignored for the purpose of computing the tax payable by the assessee."7. Thus, under Section 112 of the Act the tax payable by a non-resident on long-term capital gains is twenty per cent. However, the proviso to Section 112(1) provides that in cases specified therein the long-term capital gains in excess of ten per cent shall be ignored. In the present case, the assessing officer in the original assessment order, after considering the second proviso to Section 48 of the Act has held that on the long term capital gains income, the assessee is liable to pay tax at ten per cent. Obviously, the long-term capital gains were taxed by the assessing officer at ten per cent by invoking the proviso to Section 112 of the Act.8. The reasons recorded for re-opening of the assessment, neither records that the proviso to Section 112 is not applicable to the case of the assessee nor does it record that the long term capital gains earned by the assessee do not fall in any of the categories specified in the proviso to Section 112 of the Act. Thus, the reasons recorded for re-opening of the assessment merely states that under Section 112(1)(c)(ii), the long term capital gains tax payable by a non-resident is twenty per cent and does not find fault with the original assessment order, wherein ten per cent tax has been levied by invoking the proviso to Section 112 of the Act. Therefore, in the absence of any reasons recorded to the effect that the proviso to Section 112 is not applicable to the case of the assessee or that the income of the assessee does not fall in any of the categories specified in the proviso to Section 112, the reopening of the assessment cannot be said to be valid in law.9. The argument of the learned counsel for the Revenue was that the proviso to Section 112(1) refers to the second proviso to Section 48 and the second proviso to Section 48 is not applicable to a non-resident and, therefore, in the original assessment the proviso to Section 112(1) could not be invoked in the case of the assessee. We see no merit in the above contention, because, that was not the ground on which the assessment was sought to be re-opened. The validity of the re-opening of the assessment has to be judged on the basis of the reasons recorded for re-opening of the assessment. If the reasons recorded do not even remotely suggest that the assessing officer was not justified in invoking the proviso to Section 112 of the Act, it would not be open to the Revenue to justify re-opening of the assessment on the grounds which are not recorded in the reasons for reopening the assessment. In the present case, it is relevant to note that in the original assessment order, the assessing officer has specifically referred to the second proviso to Section 48 and thereafter applied the proviso to Section 112 of the Act. Assuming that the assessing officer was wrong in invoking the proviso to Section 112, in the absence of any reason recorded to the effect that the proviso to Section 112 has been wrongly invoked by the assessing officer, it cannot be said that the assessment has been validly re-opened. | 0[ds]5. From the aforesaid reasons, it is clear that the only reason for reopening the assessment was that under Section 112(1)(c)(ii) of the Act, the longare liable to be taxed at twenty percent, where as, in the present case, the tax has been levied under Section 112 at ten per cent.Thus, under Section 112 of the Act the tax payable by arm capital gainsis twenty per cent. However, the proviso to Section 112(1) provides that in cases specified therein thein excess of ten per cent shall be ignored. In the present case, the assessing officer in the original assessment order, after considering the second proviso to Section 48 of the Act has held that on the longme, the assessee is liable to pay tax at ten per cent. Obviously, thecapital gains weretaxed by the assessing officer at ten per cent by invoking the proviso to Section 112 of the Act.The argument of the learned counsel for the Revenue was that the proviso to Section 112(1) refers to the second proviso to Section 48 and the second proviso to Section 48 is not applicable to aand, therefore, in the original assessment the proviso to Section 112(1) could not be invoked in the case of the assessee. We see no merit in the above contention, because, that was not the ground on which the assessment was sought to beThe validity of thereopening of theassessment has to be judged on the basis of the reasons recorded forreopening of theassessment. If the reasons recorded do not even remotely suggest that the assessing officer was not justified in invoking the proviso to Section 112 of the Act, it would not be open to the Revenue to justifyreopening of theassessment on the grounds which are not recorded in the reasons for reopening the assessment. In the present case, it is relevant to note that in the original assessment order, the assessing officer has specifically referred to the second proviso to Section 48 and thereafter applied the proviso to Section 112 of the Act. Assuming that the assessing officer was wrong in invoking the proviso to Section 112, in the absence of any reason recorded to the effect that the proviso to Section 112 has been wrongly invoked by the assessing officer, it cannot be said that the assessment has been validly | 0 | 1,583 | 436 | ### Instruction:
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the assets were required and no indexation is to be allowed separately.""2. The said long term capital gain of Rs.1,42,85,91,065/was taxed@ 10% as per provisions to section 112(1). However, as per the provisions of section 112(1)(c)(ii), the amount of income-tax calculated on such long term capital gains should be at the rate of twenty percent, except as provided in the proviso below section 112. The provisions of section 112(1)(c)(ii) are reproduced herein under for reference :-"Tax on long-term capital gains :-112(1) Where the total income of an assessee includes any income arising from the transfer of a long-term capital asset, which is chargeable under the head "Capital Gains", the tax payable by the assessee on the total income shall be the aggregate of -(a) ...........(b) ..........(c) in the case of a nonresident (not being a company), or a foreign company,(i) .............(ii) the amount of income-tax calculated on such long-term capital gains at the rate of twenty percent;""3. Therefore, I have reason to believe that the incorrect application of rate of tax has resulted in short levy of tax of Rs.20,05,42,421/including interest of Rs.5,76,83,260/- under Section 234B. In other words, the income is escaped chargeable to tax to that extent. Accordingly, the assessment for A.Y. 2001-02 is being reopened and notice u/s.148 of the I.T. Act, is being issued."5. From the aforesaid reasons, it is clear that the only reason for reopening the assessment was that under Section 112(1)(c)(ii) of the Act, the long term capital gains are liable to be taxed at twenty percent, where as, in the present case, the tax has been levied under Section 112 at ten per cent.6. Section 112, to the extent relevant, reads thus :-"Tax on long-term capital gains.112. (1) Where the total income of an assessee includes any income, arising from the transfer of a long-term capital asset, which is chargeable under the head "Capital gains", the tax payable by the assessee on the total income shall be the aggregate of, -(a) ................(b) ...............(c) in the case of a nonresident (not being a company) or a foreign company,(i) the amount of income-tax payable on the total income as reduced by the amount of such long-term capital gains, had the total income as so reduced been its total income; and(ii) the amount of income-tax calculated on such long-term capital gains at the rate of twenty per cent ;(d) ................Provided, that where the tax payable in respect of any income arising from the transfer of a long-term capital asset, being listed securities or unit or zero coupon bond, exceeds ten per cent of the amount of capital gains before giving effect to the provisions of the second proviso to section 48, then, such excess shall be ignored for the purpose of computing the tax payable by the assessee."7. Thus, under Section 112 of the Act the tax payable by a non-resident on long-term capital gains is twenty per cent. However, the proviso to Section 112(1) provides that in cases specified therein the long-term capital gains in excess of ten per cent shall be ignored. In the present case, the assessing officer in the original assessment order, after considering the second proviso to Section 48 of the Act has held that on the long term capital gains income, the assessee is liable to pay tax at ten per cent. Obviously, the long-term capital gains were taxed by the assessing officer at ten per cent by invoking the proviso to Section 112 of the Act.8. The reasons recorded for re-opening of the assessment, neither records that the proviso to Section 112 is not applicable to the case of the assessee nor does it record that the long term capital gains earned by the assessee do not fall in any of the categories specified in the proviso to Section 112 of the Act. Thus, the reasons recorded for re-opening of the assessment merely states that under Section 112(1)(c)(ii), the long term capital gains tax payable by a non-resident is twenty per cent and does not find fault with the original assessment order, wherein ten per cent tax has been levied by invoking the proviso to Section 112 of the Act. Therefore, in the absence of any reasons recorded to the effect that the proviso to Section 112 is not applicable to the case of the assessee or that the income of the assessee does not fall in any of the categories specified in the proviso to Section 112, the reopening of the assessment cannot be said to be valid in law.9. The argument of the learned counsel for the Revenue was that the proviso to Section 112(1) refers to the second proviso to Section 48 and the second proviso to Section 48 is not applicable to a non-resident and, therefore, in the original assessment the proviso to Section 112(1) could not be invoked in the case of the assessee. We see no merit in the above contention, because, that was not the ground on which the assessment was sought to be re-opened. The validity of the re-opening of the assessment has to be judged on the basis of the reasons recorded for re-opening of the assessment. If the reasons recorded do not even remotely suggest that the assessing officer was not justified in invoking the proviso to Section 112 of the Act, it would not be open to the Revenue to justify re-opening of the assessment on the grounds which are not recorded in the reasons for reopening the assessment. In the present case, it is relevant to note that in the original assessment order, the assessing officer has specifically referred to the second proviso to Section 48 and thereafter applied the proviso to Section 112 of the Act. Assuming that the assessing officer was wrong in invoking the proviso to Section 112, in the absence of any reason recorded to the effect that the proviso to Section 112 has been wrongly invoked by the assessing officer, it cannot be said that the assessment has been validly re-opened.
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5. From the aforesaid reasons, it is clear that the only reason for reopening the assessment was that under Section 112(1)(c)(ii) of the Act, the longare liable to be taxed at twenty percent, where as, in the present case, the tax has been levied under Section 112 at ten per cent.Thus, under Section 112 of the Act the tax payable by arm capital gainsis twenty per cent. However, the proviso to Section 112(1) provides that in cases specified therein thein excess of ten per cent shall be ignored. In the present case, the assessing officer in the original assessment order, after considering the second proviso to Section 48 of the Act has held that on the longme, the assessee is liable to pay tax at ten per cent. Obviously, thecapital gains weretaxed by the assessing officer at ten per cent by invoking the proviso to Section 112 of the Act.The argument of the learned counsel for the Revenue was that the proviso to Section 112(1) refers to the second proviso to Section 48 and the second proviso to Section 48 is not applicable to aand, therefore, in the original assessment the proviso to Section 112(1) could not be invoked in the case of the assessee. We see no merit in the above contention, because, that was not the ground on which the assessment was sought to beThe validity of thereopening of theassessment has to be judged on the basis of the reasons recorded forreopening of theassessment. If the reasons recorded do not even remotely suggest that the assessing officer was not justified in invoking the proviso to Section 112 of the Act, it would not be open to the Revenue to justifyreopening of theassessment on the grounds which are not recorded in the reasons for reopening the assessment. In the present case, it is relevant to note that in the original assessment order, the assessing officer has specifically referred to the second proviso to Section 48 and thereafter applied the proviso to Section 112 of the Act. Assuming that the assessing officer was wrong in invoking the proviso to Section 112, in the absence of any reason recorded to the effect that the proviso to Section 112 has been wrongly invoked by the assessing officer, it cannot be said that the assessment has been validly
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Sirsilk Ltd. and Ors Vs. Textiles Committee and Ors | pay and allowances of the officers and other employees of the Committee and for carrying out the purposes of the Act. The following is the table showing the fees realisable, fees actually realised and the total expenditure of the Inspectorate during the period from April 1, 1965 to March 31, 1971: 34. On these facts, there is no doubt whatever that the entire proceeds of the amount collected by way of fee under Rule 21 of the Rules are spent in carrying on the functions of the Textiles Committee. It cannot be doubted that the activities of the Committee in furtherance of the object and purpose of the Act are to ensure the quality of all textiles whether made wholly or partly of cotton, wool, silk, artificial fibre or silk. The functions of the Committee should generally be to ensure standard qualities of textiles for internal as well as external marketing and manufacture and use of standard type of textile machinery. The grievance of the appellants and the petitioners that there is no inspection of the rayon yam and nylon yarn manufactured by them at the stage of production is belied by the fact that there is pre-shipment inspection of the fabrics manufactured from such fibres for export. The provision for the levy of fees for inspection and examination of textiles under Section 12(1)(a) of the Act or the levy of the fee under Rule 21 of the Rules cannot be challenged on the ground that there is no reasonable relationship between the levy of the fee and the services rendered by the Committee to the entire textile industry to which the appellants and the petitioners before us owning large textile mills belong. When the levy of the fee is for the benefit of the entire textile industry, there is sufficient quid pro quo between the levy recovered from the appellants and the petitioners and the services rendered to the industry as a whole. In the premises, the principles laid down by this Court in Sreeniwasa General Traders are clearly attracted. One of us (Sen, J.) speaking for the Court had observed: The traditional view that there must be actual quid pro quo for a fee has undergone a sea change in the subsequent decisions. The distinction between a tax and a fee lies primarily in the fact that a tax is levied as part of a common burden, while a fee is for payment of a specific benefit or privilege although the special advantage is secondary to the primary motive of regulation in public interest. If the element of revenue for general purpose of the State predominates, the levy becomes a tax. In regard to fees there is, and must always be, correlation between the fee collected and the service intended to be rendered. In determining whether a levy is a fee, the true test must be whether its primary and essential purpose is to render specific services to a specified area or class; it may be of no consequence that the State may ultimately and indirectly be benefited by it. The power of any legislature to levy a fee is conditioned by the fact that it must be by and large a quid pro quo for the services rendered. However, correlationship between the levy and the services rendered or expected is one of general character and not of mathematical exactitude. All that is necessary is that there should be a reasonable relationship between the levy of the fee and the services rendered. If authority is needed for this proposition, it is to be found in the several decisions of this Court drawing a distinction between a tax and a fee. See The Commissioner, Hindu Religious Endowments, Madras v. Sri Lakshmindra Thirtha Swamiar of Sri Shirur Mutt [1954]1SCR1005 : H.H. Sudhundra Thirtha Swamiar v. Commissioner for Hindu Religious and Charitable Endowments, Mysore [1963] Supp 2 SCR 302 : The Hingir-Rampur Coal Co. Ltd. v. State of Orissa [1961]2SCR537 : H.H, Shri Swamiji of Shri Admar Mutt v. Commissioner Hindu Religious and Charitable Endowments Department [1980]1SCR368 : South Pharmaceuticals and Chemicals, Trichur v. State of Kerala [1982]1SCR519 and Municipal Corporation of Delhi v. Mohd. Yasin [1983]142ITR737(SC) . There is no generic difference between a tax and a free. Both are compulsory exactions of money by public authorities. Compulsion lies in the fact that payment is enforceable by law against a person in spite of his unwillingness or want of consent. A levy in the nature of a fee does not cease to be of that character merely because there is an element of compulsion or coerciveness present in it, nor is it a postulate of a fee that it must have direct relation to the actual service rendered by the authority to each individual who obtains the benefit of the service. It is now increasingly realised that merely because the collections for the services rendered or grant of a privilege or licence are taken to the consolidated fund of the State and not separately appropriated towards the expenditure for rendering the service is not by itself decisive. Presumably, the attention of the Court in the Shirur Mutt case was not drawn to Article 226 of the Constitution. The Constitution nowhere contemplates it to be an essential element of fee that it should be credited to a separate fund and not to the consolidated fund. It is also increasingly realised that the element of quid pro quo in the strict sense is not always a sine qua non for a fee. It is needless to stress that the element of quid pro quo is not necessarily absent in every tax. See also Amar Nath Om Prakash and Ors. v. State of Punjab and Ors. [1985]2SCR72 : City Corporation of Calicut v. Thachambalath Sadalinan and Ors. [1985] 2 SCR 1009 : I.T.C. Ltd. and Ors. v. State of Karnataka and Ors. (per Fazal Ali & Mukharji, JJ) (1985)ILLJ530SC and Om Parkash Agarwal and Ors. v. Giri Raj Kishori and Ors. [1987]164ITR376(SC) . | 0[ds]19. As to the first contention that the rayon yarn and nylon yarn manufactured by the appellants and the petitioners were filaments and not fibres and therefore did not fall within the ambit of the definition of textiles in Section 2(g) of the Act prior to its amendment, Shri Khaitan who first argued the case of Sirsilk Limited and more particularly Shri Tarkunde appearing on behalf of J.K. Cotton Spg. & Wvg. Mills Co. Ltd., followed by Shri Krishna Kumar appearing for Modipon Limited placed strong reliance on scientific and technological material explaining the manufacturing process of rayon yarn and nylon yarn to contradistinguish the same from fibres. The learned Additional Solicitor General rightly drew our attention to the averments made in paragraph 1 of the writ petitions before the High Court in which each of the appellants and the petitioners has specifically averred that they are manufacturers of rayon, and submitted that they cannot be heard to say that the product manufactured by them was not rayon made of artificial silk or fibre. The contention of the learned Additional Solicitor General must prevail. The averments in paragraph 1 of the writ petitions are more or less the same. We need only reproduce paragraph 1 of the writ petition filed by Messrs Sirsilk Limited, and it reads:The petitioners are a Limited Company incorporated under the Indian Companies Act and are having their Registered office at Himayatnagar, Hyderabad-29. The Petitioners, inter alia, carry on the business of manufacture of rayon yarn and staple fibre both of which form species of what is popularly known as man made yarn. For the purpose of manufacturing the aforesaid yarns, the petitioners have established their factory at Sirpuro the same effect are the averments made in the writ petitions filed by the appellants M/s. J.K. Cotton Spinning & Weaving Co. Ltd., M/s. Baroda Rayon Corporation Ltd. and M/s. Modipon Ltd. as well as by the petitioners M/s. Century Spinning & Manufacturing Co. Ltd., Century Enka Ltd., M/s. Nirlon Synthetic Fibres & Chemicals Ltd. and M/s. Garware Nylons Ltd. On their own showing, the appellants as well as the petitioners are actually engaged in the manufacture of rayon yarn and nylon yarn both of which they aver are species of what is known as man-made fibres. In view of this undisputed factual position, the contention that rayon yarn and nylon yarn manufactured by them are filaments and not fibre or that they are not yarn and therefore do not fall within the definition of textiles under Section 2(g) of the Act prior to its amendment, cannot be countenanced.20. The main thrust of the argument of learned Counsel for the appellants and the petitioners that rayon yarn and nylon yarn manufactured by the appellants and the petitioners are not fibres but filaments, stems from the decision of the Madhya Pradesh High Court in The Gwalior Rayon Silk Manufacturing (Wvg.) Co. Ltd., Birlagram, Ujjain v. The Textile Committee, Bombay (supra). In the decision, the Madhya Pradesh High Court assumes that a fibre in order to answer the description of yarn, in the ordinary commercial sense must be a spun strand meant for use in weaving, knitting or rope-making. It proceeds upon the basis that although viscose staple fibre was manufactured out of fibre but it had to be subjected to various other operations such as blending, carding, combing or hackling and spinning before fibre could be converted into yarn. Upon that basis, the Madhya Pradesh High Court held that viscose staple fibre manufactured by the Gwalior Rayon Silk Manufacturing (Wvg.) Co. Ltd. was made wholly of filaments and therefore was not fibre and hence was not yarn and accordingly did not fall within the meaning of the expression textiles as defined in Section 2(g) of the Act. We are afraid, we cannot accept this line of reasoning.21. The Madhya Pradesh High Court was clearly wrong in giving to the expression textiles in Section 2(g) of the Act a narrow and restricted meaning. The reasoning of the Madhya Pradesh High Court is best stated in the words of G.P. Singh, CJ. speaking for himself and C.P. Sen, J:According to this definition, textiles meant any fabric or cloth or yarn made wholly or in part of cotton, or wool or silk, or artificial silk or other fibre. The use of the word means in the definition gives rise to the inference of its being restrictive and exhaustive. Further, it is clear that what was embraced by the definition before 1st January 1975 was any fabric or cloth or yarn and not any fibre. The definition made a distinction between yarn and fibre. The same distinction appears in Section 2(f) in the definition of textile machinery which expression is defined to mean the equipment employed for the processing of textile fibre into yarn.... The Act does not contain any definition of yarn and hence it has to be understood in its ordinary sense to mean any fibre, or wool, silk, flax, cotton, nylon etc. spun into strands for weaving, knitting or making thread. [Websters New Worlde learned Chief Justice then added:A fibre in order to answer the description of yarn in the ordinary commercial sense must be a spun strand meant for use in weaving, knitting or rope-making Commr. of Sales Tax U.P. v. Sarin Textile Mills AIR1975SC1262 . It is true that yarn is manufactured out of fibre but various operations such as blending, carding, combing or hackling and spinning have to be performed for converting fibre into yarn (See the New Encyclopaedia Britannica, 15th Edition, Vol. 18, p.e was no explicable reason for the legislature to have excluded rayon yarn and nylon yarn from the purview of the definition of textiles in Section 2(g) of the Act prior to its amendment. The expression textiles has been defined in Section 2(g) of the Act in a way as to include not only yarn but also man-made fibres or artificial silk. In the premises, the expression textiles as defined in Section 2(g) of the Act has to be given a broad and liberal construction, in furtherance of the purpose and object of the Act.22. The Madhya Pradesh High Court was clearly in error in construing the expression textiles as defined in Section 2(g) of the Act, prior to its amendment in a narrow and restricted sense. The particular words used by the legislature i.e. the terms yarn, man-made fibres, otherwise known as artificial silk had to be understood according to the common commercial understanding of the terms used, and not in their scientific or technical sense. The High Court failed to bear in mind that the Act is not a scientific treatise on organic or inorganic chemistry but is an enactment by the Parliament for the benefit of the indigenous textile industry, so that it may be able to hold its own in a fiercely competitive international market. In these circumstances, the Act and the words used therein have to be interpreted not on a technological or specialised scientific plane but in the popular sense as understood by experts in the sphere of the textile industry and the commercial world dealing with it. We find no discernible reason for Parliament to have left out man-made fibres like viscose staple fibre, rayon yarn and nylon yarn from the purview of the definition of textiles in Section 2(g) of the Act prior to its amendment particularly when synthetic fibres have a world market and India has entered into a competitive international trade in all textiles in a large way.29. For all these reasons the contention that rayon yarn and nylon yarn manufactured by the appellants and the petitioners are made wholly of filaments and not of fibres and therefore did not come within the purview of textiles as defined in Section 2(g) of the Act prior to its amendment and therefore they were not liable for payment of the fee levied under Rule 21 of the Rules, cannot prevail.30. The various activities undertaken by the Textiles Committee for the development of the textile industry and the promotion of textile exports which have expanded considerably, and the duties entrusted to the Committee to ensure the quality of all textiles whether made wholly or partly of cotton wool, silk, artificial fibre or silk, particularly when Indian Textiles by and large and artificial silk or man-made fibres like rayon yarn, viscose staple fibres and nylon yarn as well as fabrics made of artificial silk, are facing ever increasing competition in the international market from other exporting countries like Japan, China etc. and the production and export of textiles having substantially increased, the legislature thought it necessary to make adequate provision and accordingly created a Textiles Fund under Section 7 of the Act to meet the expenditure of the Textiles Committee which necessarily has to be on a larger scale. At the time when the Textiles Committee was established under Section 3, the legislature accordingly provided for the establishment of a Textiles Fund constituted under Section 7 of the Act from out of which the expenditure of the Committee has to be defrayed. Sub-section (1) of Section 7 provides that the Committee shall have a Fund to be called the Textiles Fund and there shall be credited thereto various items specified in Clauses (a) to (d), apart from all the moneys standing to the credit of the Cotton Textiles Fund established under the repealed Ordinance, immediately before the date on which the Textiles Committee came to be established, which by virtue of Section 24(2)(a) stood transferred to and formed part of the Textiles Fund, and such sums of money as the Central Government after due appropriation made by Parliament in that behalf, pays to the Committee in each financial year by way of grant, loan or otherwise for purposes of enabling the Committee to discharge its functions under the Act. There are only two other sources of income. One of the main sources of revenue, as indicated in Clause (c), is the income derived from the levy of the fee under Rule 21 of the Rules, and the other that indicated in Clause (d) viz. all moneys received by the Committee by way of grant, gift, donation, contribution, transfer or otherwise. After the imposition of the duty of excise as a cess by Section 5A of the Act introduced by Act No. 51/73, the income derived from such cess becomes another source. Sub-section (2) of Section 7 provides that the moneys in the Fund shall be applied for (a) meeting the pay and allowances of the officers and other employees of the Committee and other administrative expenses of the Committee, and (b) carrying out the purposes of the Act. Sub-section (3) of Section 7 provides that all moneys in the Fund shall be deposited in the State Bank of India or be invested in such securities, as may be approved by the Central Government.31. From these provisions, it is amply clear that all the income derived from the levy of the fee under Rule 21 of the Rules has to be credited to the Textiles Fund and the said income is utilised in defraying the expenditure of the Textiles Committee in carrying on its manifold duties. No part of the fee levied under Rule 21 goes into the Consolidated Fund of India. It is only by Section 5F introduced by Act No. 51/73 which provides that proceeds of the duty of excise collected under Section 5A reduced by the cost of collection as determined by the Central Government, shall first be credited to the Consolidated Fund of India and the Central Government may, after due appropriation made by Parliament by law, pay to the Committee from out of such proceeds, such sums of money as it thinks fit for being utilised for the purposes of the Act. We are not here concerned with the duty of excise recovered as a cess under Section 5A but only with the question whether levy of the fee under Rule 21 is sustainable as a fee. That is to say, whether there is sufficient quid pro quo between the levy of the fee and the services rendered. It has not been suggested that any part of the fees levied under Rule 21 can be diverted to any other purpose. When the entire proceeds of the fee are utilised in financing the various projects undertaken by the Textiles Committee, as also the inspection of all textiles including man-made fibres and textile machinery, the appellants cannot be heard to say that there is no reasonable and sufficient correlation between the levy of the fee and the services rendered. The learned Additional Solicitor General drew our attention to the various averments made in the counter-affidavit filed on behalf of the Textiles Committee as well as the Government of India showing the extent of income from the fee levied under Rule 21 and the expenditure of Textiles Committee in each financial year. From the material on record it is amply clear that the levy of the fee under Rule 21 is not commensurate with the expenditure incurred by the Textile Committee. It is not in dispute that the Textiles Committee has over the years built up a huge infrastructure and the Central Government has spent crores of rupees to make the legislation effective and meaningful and to bring about an overall improvement in the quality and standard of the textiles including man-made fibres or artificial silk so that our country may continue to retain its rightful place in the world market in a fiercely competitive international trade.33. Under the heading Collection of Fees, the necessary averments are there showing that the entire amount of fees levied and collected under Rule 21 of the Rules is utilised in meeting the expenses of the Committee on account of pay and allowances of the officers and other employees of the Committee and for carrying out the purposes of the Act. The following is the table showing the fees realisable, fees actually realised and the total expenditure of the Inspectorate during the period from April 1, 1965 to March 31, 1971:34. On these facts, there is no doubt whatever that the entire proceeds of the amount collected by way of fee under Rule 21 of the Rules are spent in carrying on the functions of the Textiles Committee. It cannot be doubted that the activities of the Committee in furtherance of the object and purpose of the Act are to ensure the quality of all textiles whether made wholly or partly of cotton, wool, silk, artificial fibre or silk. The functions of the Committee should generally be to ensure standard qualities of textiles for internal as well as external marketing and manufacture and use of standard type of textile machinery. The grievance of the appellants and the petitioners that there is no inspection of the rayon yam and nylon yarn manufactured by them at the stage of production is belied by the fact that there is pre-shipment inspection of the fabrics manufactured from such fibres for export. The provision for the levy of fees for inspection and examination of textiles under Section 12(1)(a) of the Act or the levy of the fee under Rule 21 of the Rules cannot be challenged on the ground that there is no reasonable relationship between the levy of the fee and the services rendered by the Committee to the entire textile industry to which the appellants and the petitioners before us owning large textile mills belong. When the levy of the fee is for the benefit of the entire textile industry, there is sufficient quid pro quo between the levy recovered from the appellants and the petitioners and the services rendered to the industry as a whole. In the premises, the principles laid down by this Court in Sreeniwasa General Traders are clearly attracted. One of us (Sen, J.) speaking for the Court had observed:The traditional view that there must be actual quid pro quo for a fee has undergone a sea change in the subsequent decisions. The distinction between a tax and a fee lies primarily in the fact that a tax is levied as part of a common burden, while a fee is for payment of a specific benefit or privilege although the special advantage is secondary to the primary motive of regulation in public interest. If the element of revenue for general purpose of the State predominates, the levy becomes a tax. In regard to fees there is, and must always be, correlation between the fee collected and the service intended to be rendered. In determining whether a levy is a fee, the true test must be whether its primary and essential purpose is to render specific services to a specified area or class; it may be of no consequence that the State may ultimately and indirectly be benefited by it. The power of any legislature to levy a fee is conditioned by the fact that it must be by and large a quid pro quo for the services rendered. However, correlationship between the levy and the services rendered or expected is one of general character and not of mathematical exactitude. All that is necessary is that there should be a reasonable relationship between the levy of the fee and the services rendered. If authority is needed for this proposition, it is to be found in the several decisions of this Court drawing a distinction between a tax and a fee. See The Commissioner, Hindu Religious Endowments, Madras v. Sri Lakshmindra Thirtha Swamiar of Sri Shirur Mutt [1954]1SCR1005 : H.H. Sudhundra Thirtha Swamiar v. Commissioner for Hindu Religious and Charitable Endowments, Mysore [1963] Supp 2 SCR 302 : The Hingir-Rampur Coal Co. Ltd. v. State of Orissa[1961]2SCR537 : H.H, Shri Swamiji of Shri Admar Mutt v. Commissioner Hindu Religious and Charitable Endowments Department [1980]1SCR368 : South Pharmaceuticals and Chemicals, Trichur v. State of Kerala [1982]1SCR519 and Municipal Corporation of Delhi v. Mohd. Yasin [1983]142ITR737(SC) .There is no generic difference between a tax and a free. Both are compulsory exactions of money by public authorities. Compulsion lies in the fact that payment is enforceable by law against a person in spite of his unwillingness or want of consent. A levy in the nature of a fee does not cease to be of that character merely because there is an element of compulsion or coerciveness present in it, nor is it a postulate of a fee that it must have direct relation to the actual service rendered by the authority to each individual who obtains the benefit of the service. It is now increasingly realised that merely because the collections for the services rendered or grant of a privilege or licence are taken to the consolidated fund of the State and not separately appropriated towards the expenditure for rendering the service is not by itself decisive. Presumably, the attention of the Court in the Shirur Mutt case was not drawn to Article 226 of the Constitution. The Constitution nowhere contemplates it to be an essential element of fee that it should be credited to a separate fund and not to the consolidated fund. It is also increasingly realised that the element of quid pro quo in the strict sense is not always a sine qua non for a fee. It is needless to stress that the element of quid pro quo is not necessarily absent in every tax.See also Amar Nath Om Prakash and Ors. v. State of Punjab and Ors. [1985]2SCR72 : City Corporation of Calicut v. Thachambalath Sadalinan and Ors. [1985] 2 SCR 1009 : I.T.C. Ltd. and Ors. v. State of Karnataka and Ors. (per Fazal Ali & Mukharji, JJ) (1985)ILLJ530SC and Om Parkash Agarwal and Ors. v. Giri Raj Kishori and Ors. [1987]164ITR376(SC) . | 0 | 11,708 | 3,645 | ### 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:
pay and allowances of the officers and other employees of the Committee and for carrying out the purposes of the Act. The following is the table showing the fees realisable, fees actually realised and the total expenditure of the Inspectorate during the period from April 1, 1965 to March 31, 1971: 34. On these facts, there is no doubt whatever that the entire proceeds of the amount collected by way of fee under Rule 21 of the Rules are spent in carrying on the functions of the Textiles Committee. It cannot be doubted that the activities of the Committee in furtherance of the object and purpose of the Act are to ensure the quality of all textiles whether made wholly or partly of cotton, wool, silk, artificial fibre or silk. The functions of the Committee should generally be to ensure standard qualities of textiles for internal as well as external marketing and manufacture and use of standard type of textile machinery. The grievance of the appellants and the petitioners that there is no inspection of the rayon yam and nylon yarn manufactured by them at the stage of production is belied by the fact that there is pre-shipment inspection of the fabrics manufactured from such fibres for export. The provision for the levy of fees for inspection and examination of textiles under Section 12(1)(a) of the Act or the levy of the fee under Rule 21 of the Rules cannot be challenged on the ground that there is no reasonable relationship between the levy of the fee and the services rendered by the Committee to the entire textile industry to which the appellants and the petitioners before us owning large textile mills belong. When the levy of the fee is for the benefit of the entire textile industry, there is sufficient quid pro quo between the levy recovered from the appellants and the petitioners and the services rendered to the industry as a whole. In the premises, the principles laid down by this Court in Sreeniwasa General Traders are clearly attracted. One of us (Sen, J.) speaking for the Court had observed: The traditional view that there must be actual quid pro quo for a fee has undergone a sea change in the subsequent decisions. The distinction between a tax and a fee lies primarily in the fact that a tax is levied as part of a common burden, while a fee is for payment of a specific benefit or privilege although the special advantage is secondary to the primary motive of regulation in public interest. If the element of revenue for general purpose of the State predominates, the levy becomes a tax. In regard to fees there is, and must always be, correlation between the fee collected and the service intended to be rendered. In determining whether a levy is a fee, the true test must be whether its primary and essential purpose is to render specific services to a specified area or class; it may be of no consequence that the State may ultimately and indirectly be benefited by it. The power of any legislature to levy a fee is conditioned by the fact that it must be by and large a quid pro quo for the services rendered. However, correlationship between the levy and the services rendered or expected is one of general character and not of mathematical exactitude. All that is necessary is that there should be a reasonable relationship between the levy of the fee and the services rendered. If authority is needed for this proposition, it is to be found in the several decisions of this Court drawing a distinction between a tax and a fee. See The Commissioner, Hindu Religious Endowments, Madras v. Sri Lakshmindra Thirtha Swamiar of Sri Shirur Mutt [1954]1SCR1005 : H.H. Sudhundra Thirtha Swamiar v. Commissioner for Hindu Religious and Charitable Endowments, Mysore [1963] Supp 2 SCR 302 : The Hingir-Rampur Coal Co. Ltd. v. State of Orissa [1961]2SCR537 : H.H, Shri Swamiji of Shri Admar Mutt v. Commissioner Hindu Religious and Charitable Endowments Department [1980]1SCR368 : South Pharmaceuticals and Chemicals, Trichur v. State of Kerala [1982]1SCR519 and Municipal Corporation of Delhi v. Mohd. Yasin [1983]142ITR737(SC) . There is no generic difference between a tax and a free. Both are compulsory exactions of money by public authorities. Compulsion lies in the fact that payment is enforceable by law against a person in spite of his unwillingness or want of consent. A levy in the nature of a fee does not cease to be of that character merely because there is an element of compulsion or coerciveness present in it, nor is it a postulate of a fee that it must have direct relation to the actual service rendered by the authority to each individual who obtains the benefit of the service. It is now increasingly realised that merely because the collections for the services rendered or grant of a privilege or licence are taken to the consolidated fund of the State and not separately appropriated towards the expenditure for rendering the service is not by itself decisive. Presumably, the attention of the Court in the Shirur Mutt case was not drawn to Article 226 of the Constitution. The Constitution nowhere contemplates it to be an essential element of fee that it should be credited to a separate fund and not to the consolidated fund. It is also increasingly realised that the element of quid pro quo in the strict sense is not always a sine qua non for a fee. It is needless to stress that the element of quid pro quo is not necessarily absent in every tax. See also Amar Nath Om Prakash and Ors. v. State of Punjab and Ors. [1985]2SCR72 : City Corporation of Calicut v. Thachambalath Sadalinan and Ors. [1985] 2 SCR 1009 : I.T.C. Ltd. and Ors. v. State of Karnataka and Ors. (per Fazal Ali & Mukharji, JJ) (1985)ILLJ530SC and Om Parkash Agarwal and Ors. v. Giri Raj Kishori and Ors. [1987]164ITR376(SC) .
### Response:
0
### Explanation:
the Committee on account of pay and allowances of the officers and other employees of the Committee and for carrying out the purposes of the Act. The following is the table showing the fees realisable, fees actually realised and the total expenditure of the Inspectorate during the period from April 1, 1965 to March 31, 1971:34. On these facts, there is no doubt whatever that the entire proceeds of the amount collected by way of fee under Rule 21 of the Rules are spent in carrying on the functions of the Textiles Committee. It cannot be doubted that the activities of the Committee in furtherance of the object and purpose of the Act are to ensure the quality of all textiles whether made wholly or partly of cotton, wool, silk, artificial fibre or silk. The functions of the Committee should generally be to ensure standard qualities of textiles for internal as well as external marketing and manufacture and use of standard type of textile machinery. The grievance of the appellants and the petitioners that there is no inspection of the rayon yam and nylon yarn manufactured by them at the stage of production is belied by the fact that there is pre-shipment inspection of the fabrics manufactured from such fibres for export. The provision for the levy of fees for inspection and examination of textiles under Section 12(1)(a) of the Act or the levy of the fee under Rule 21 of the Rules cannot be challenged on the ground that there is no reasonable relationship between the levy of the fee and the services rendered by the Committee to the entire textile industry to which the appellants and the petitioners before us owning large textile mills belong. When the levy of the fee is for the benefit of the entire textile industry, there is sufficient quid pro quo between the levy recovered from the appellants and the petitioners and the services rendered to the industry as a whole. In the premises, the principles laid down by this Court in Sreeniwasa General Traders are clearly attracted. One of us (Sen, J.) speaking for the Court had observed:The traditional view that there must be actual quid pro quo for a fee has undergone a sea change in the subsequent decisions. The distinction between a tax and a fee lies primarily in the fact that a tax is levied as part of a common burden, while a fee is for payment of a specific benefit or privilege although the special advantage is secondary to the primary motive of regulation in public interest. If the element of revenue for general purpose of the State predominates, the levy becomes a tax. In regard to fees there is, and must always be, correlation between the fee collected and the service intended to be rendered. In determining whether a levy is a fee, the true test must be whether its primary and essential purpose is to render specific services to a specified area or class; it may be of no consequence that the State may ultimately and indirectly be benefited by it. The power of any legislature to levy a fee is conditioned by the fact that it must be by and large a quid pro quo for the services rendered. However, correlationship between the levy and the services rendered or expected is one of general character and not of mathematical exactitude. All that is necessary is that there should be a reasonable relationship between the levy of the fee and the services rendered. If authority is needed for this proposition, it is to be found in the several decisions of this Court drawing a distinction between a tax and a fee. See The Commissioner, Hindu Religious Endowments, Madras v. Sri Lakshmindra Thirtha Swamiar of Sri Shirur Mutt [1954]1SCR1005 : H.H. Sudhundra Thirtha Swamiar v. Commissioner for Hindu Religious and Charitable Endowments, Mysore [1963] Supp 2 SCR 302 : The Hingir-Rampur Coal Co. Ltd. v. State of Orissa[1961]2SCR537 : H.H, Shri Swamiji of Shri Admar Mutt v. Commissioner Hindu Religious and Charitable Endowments Department [1980]1SCR368 : South Pharmaceuticals and Chemicals, Trichur v. State of Kerala [1982]1SCR519 and Municipal Corporation of Delhi v. Mohd. Yasin [1983]142ITR737(SC) .There is no generic difference between a tax and a free. Both are compulsory exactions of money by public authorities. Compulsion lies in the fact that payment is enforceable by law against a person in spite of his unwillingness or want of consent. A levy in the nature of a fee does not cease to be of that character merely because there is an element of compulsion or coerciveness present in it, nor is it a postulate of a fee that it must have direct relation to the actual service rendered by the authority to each individual who obtains the benefit of the service. It is now increasingly realised that merely because the collections for the services rendered or grant of a privilege or licence are taken to the consolidated fund of the State and not separately appropriated towards the expenditure for rendering the service is not by itself decisive. Presumably, the attention of the Court in the Shirur Mutt case was not drawn to Article 226 of the Constitution. The Constitution nowhere contemplates it to be an essential element of fee that it should be credited to a separate fund and not to the consolidated fund. It is also increasingly realised that the element of quid pro quo in the strict sense is not always a sine qua non for a fee. It is needless to stress that the element of quid pro quo is not necessarily absent in every tax.See also Amar Nath Om Prakash and Ors. v. State of Punjab and Ors. [1985]2SCR72 : City Corporation of Calicut v. Thachambalath Sadalinan and Ors. [1985] 2 SCR 1009 : I.T.C. Ltd. and Ors. v. State of Karnataka and Ors. (per Fazal Ali & Mukharji, JJ) (1985)ILLJ530SC and Om Parkash Agarwal and Ors. v. Giri Raj Kishori and Ors. [1987]164ITR376(SC) .
|
Bindeshwari Chaudhary Vs. State of Bihar & Others | writ petition, another show cause notice dated 17.06.1998 (Annexure-P18) was issued against the appellant under Rule 43 (b) read with Rule 139 of Bihar Pension Rules, as to why the pension benefits be not decided at zero. The High Court, vide its order dated 04.12.1998, dismissed the writ petition. Aggrieved by said order, Letters Patent Appeal No. 436 of 2000 was filed by the appellant which was disposed of by the High Court vide impugned order dated 20.05.2008 restricting withholding of gratuity and pension to the extent of fifty percent. 8. Challenging the impugned order, Shri Das, learned counsel for appellant argued that action of the appellant in releasing the payment to the contractor was bonafide as the bank guarantee submitted by him was got verified from the Branch Manager of the Bank, and by the communication dated 01.09.1989 (Annexure-P3), the bank confirmed the bank guarantee in question. In this connection, it is further pointed out that after investigation, it is only Ramdahin Singh, official of the department, and Shri T.S. Gandhok, the then Branch Manager of the bank, are facing the trial, and not the appellant. It is further submitted that it is not a case where the appellant has caused pecuniary loss to the department, as the payments made to the contractor were either permissible mobilization advances or against the running bills. It is also contended that after the High Court quashed the punishment earlier awarded by the respondent authorities vide order dated 23.03.1995 passed in C.W.J.C. No. 942 of 1994, fresh departmental enquiry was not maintainable. Lastly, it is contended that from the evidence on record charge against the appellant cannot be said to have been proved. 9. On the other hand, Shri Shivam Singh, learned counsel for the respondent authorities submitted that Rule 43(b) read with Rule 139 of Bihar Pension Rules empowers the State Government to withhold the pension and gratuity of the employee, and the respondent authorities have done so for the sufficient reasons. 10. We have considered the submissions of learned counsel for the parties. The first charge sheet was admittedly served on the appellant on 13.06.1991, which was revoked consequent to order dated 10.10.1991, passed by the High Court in C.W.J.C. No. 4439 of 1991, whereby the suspension order issued against the appellant was quashed. By the same order dated 05.12.1991 (Annexure P-12) departmental enquiry was also dropped. Fresh charge sheet was served on the appellant on 20.05.1995 in the same matter. It is pertinent to mention here that when High Court in earlier round quashed the major punishment of withholding of three increments with cumulative effect, it did not disturb the minor punishment censure awarded against the employee. However, the High Court did observe that action can be taken in accordance with law. 11. The communication dated 29.08.1989 (Annexure P-1) sent by the appellant from the Branch Manager of the Bank, and reply dated 01.09.1989 (Annexure P-3) confirming bank guarantee received from the Bank are not disputed. It is also not disputed that after investigation C.B.I. found evidence against the then Branch Manager, and Ramdahin Singh, Senior Accounts Clerk of the appellant, as the persons responsible with the contractor, in the matter. It is also nobodys case that the appellant caused pecuniary loss to the exchequer. In the light of above, we find force in submission of learned counsel of the appellant that the appellant was bonafide in making the payment in question to the contractor, as he did make enquiries from the bank concerned before releasing mobilizing advance to the contractor. Copy of letter dated 29.08.1989 (Annexure-P1) sent by the appellant to Manager of Punjab & Sindh Bank is reproduced below:- OFFICE OF THE EXECUTIVE ENGINEER IRRIGATION DIVISION, GALUDIH Letter No. 916/Galudih/ Dated:29-08-1989 To, The Manager, Punjab and Sindh Bank, Jamshedpur Subject: Confirmation of Bank Guarantee No. 20/89 dated 29-08-1989 for Rs. 23,61,500/- issued in the name of Executive Engineer, Irrigation Division on behalf of M/s. D.K. Road Lines. Dear Sir, The above Bank Guarantee has been submitted by M/s. D.K. Road Lines as a security performance which has been issued by your Bank. It is, therefore, requested to please confirm the issue through Sri Ramdahin Singh, S.A.C of this Division, who is deputed in your bank for the purpose. It is also requested to please confirm the issue in future if any guarantee issued in my favour without waiting for any request letter. Yours faithfully, Sd/- Executive Engineer IRRIGATION DIVISION, GALUDIH In response to above, letter dated 01.09.1989 (Annexure-P3) appears to have been received by the appellant from the bank. The said letter reads as under:- PUNJAB AND SINDH BANK JAMSHEDPUR Dated: 01-09-1989 To, The Executive Engineer, Irrigation Division, Galudih Sir, Ref: Your letter No.916/Galudih dated 29-08-1989. In response to your letter mentioned above, we hereby confirm having issued bank guarantee No. 20/89 dated 29-08-1989 for Rs. 23,61,500/- and B.G. No. 21/89 dated 31-08-1989 for Rs. 23,61,500/- in your favour on behalf of M/s. D.K. Roadlines. This is for your information please. For PUNJAB & SINDH BANK Sd/- T.S. Gandhok, Manager, Jamshedpur 12. The Enquiry Report dated 18.10.1996 (enclosure to Annexure P-17), in its para 8, shows that though it is mentioned that charge is proved against the appellant in the enquiry, but the finding is based on earlier enquiry report. The earlier enquiry report was in question in C.W.J.C. No. 942 of 1994 in which punishment of withholding of three increments with cumulative effect was quashed. The authorities could not and should not have relied upon said enquiry report as basis in fresh enquiry for holding the appellant guilty of the charge and to award punishment of withholding of pension and gratuity. In the circumstances, we do not find that there was sufficient reason for the respondent authorities to exercise the powers under Rule 43 (b) read with Rule 139 of Bihar Pension Rules as neither there was pecuniary loss to the State, nor the present case is of a grave misconduct on the part of the appellant. | 1[ds]10. We have considered the submissions of learned counsel for the parties. The first charge sheet was admittedly served on the appellant on 13.06.1991, which was revoked consequent to order dated 10.10.1991, passed by the High Court in C.W.J.C. No. 4439 of 1991, whereby the suspension order issued against the appellant was quashed. By the same order dated 05.12.1991 (Annexuredepartmental enquiry was also dropped. Fresh charge sheet was served on the appellant on 20.05.1995 in the same matter. It is pertinent to mention here that when High Court in earlier round quashed the major punishment of withholding of three increments with cumulative effect, it did not disturb the minor punishment censure awarded against the employee. However, the High Court did observe that action can be taken in accordance with law11. The communication dated 29.08.1989 (AnnexureP1) sent by the appellantfrom the Branch Manager of the Bank, and reply dated 01.09.1989 (Annexureconfirming bank guarantee received from the Bank are not disputed. It is also not disputed that after investigation C.B.I. found evidence against the then Branch Manager, and Ramdahin Singh, Senior Accounts Clerk of the appellant, as the persons responsible with the contractor, in the matter. It is also nobodys case that the appellant caused pecuniary loss to the exchequer. In the light of above, we find force in submission of learned counsel of the appellant that the appellant was bonafide in making the payment in question to the contractor, as he did make enquiries from the bank concerned before releasing mobilizing advance to the contractor12. The Enquiry Report dated 18.10.1996 (enclosure to Annexure, in its para 8, shows that though it is mentioned that charge is proved against the appellant in the enquiry, but the finding is based on earlier enquiry report. The earlier enquiry report was in question in C.W.J.C. No. 942 of 1994 in which punishment of withholding of three increments with cumulative effect was quashed. The authorities could not and should not have relied upon said enquiry report as basis in fresh enquiry for holding the appellant guilty of the charge and to award punishment of withholding of pension and gratuity. In the circumstances, we do not find that there was sufficient reason for the respondent authorities to exercise the powers under Rule 43 (b) read with Rule 139 of Bihar Pension Rules as neither there was pecuniary loss to the State, nor the present case is of a grave misconduct on the part of the appellant. | 1 | 2,156 | 457 | ### Instruction:
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writ petition, another show cause notice dated 17.06.1998 (Annexure-P18) was issued against the appellant under Rule 43 (b) read with Rule 139 of Bihar Pension Rules, as to why the pension benefits be not decided at zero. The High Court, vide its order dated 04.12.1998, dismissed the writ petition. Aggrieved by said order, Letters Patent Appeal No. 436 of 2000 was filed by the appellant which was disposed of by the High Court vide impugned order dated 20.05.2008 restricting withholding of gratuity and pension to the extent of fifty percent. 8. Challenging the impugned order, Shri Das, learned counsel for appellant argued that action of the appellant in releasing the payment to the contractor was bonafide as the bank guarantee submitted by him was got verified from the Branch Manager of the Bank, and by the communication dated 01.09.1989 (Annexure-P3), the bank confirmed the bank guarantee in question. In this connection, it is further pointed out that after investigation, it is only Ramdahin Singh, official of the department, and Shri T.S. Gandhok, the then Branch Manager of the bank, are facing the trial, and not the appellant. It is further submitted that it is not a case where the appellant has caused pecuniary loss to the department, as the payments made to the contractor were either permissible mobilization advances or against the running bills. It is also contended that after the High Court quashed the punishment earlier awarded by the respondent authorities vide order dated 23.03.1995 passed in C.W.J.C. No. 942 of 1994, fresh departmental enquiry was not maintainable. Lastly, it is contended that from the evidence on record charge against the appellant cannot be said to have been proved. 9. On the other hand, Shri Shivam Singh, learned counsel for the respondent authorities submitted that Rule 43(b) read with Rule 139 of Bihar Pension Rules empowers the State Government to withhold the pension and gratuity of the employee, and the respondent authorities have done so for the sufficient reasons. 10. We have considered the submissions of learned counsel for the parties. The first charge sheet was admittedly served on the appellant on 13.06.1991, which was revoked consequent to order dated 10.10.1991, passed by the High Court in C.W.J.C. No. 4439 of 1991, whereby the suspension order issued against the appellant was quashed. By the same order dated 05.12.1991 (Annexure P-12) departmental enquiry was also dropped. Fresh charge sheet was served on the appellant on 20.05.1995 in the same matter. It is pertinent to mention here that when High Court in earlier round quashed the major punishment of withholding of three increments with cumulative effect, it did not disturb the minor punishment censure awarded against the employee. However, the High Court did observe that action can be taken in accordance with law. 11. The communication dated 29.08.1989 (Annexure P-1) sent by the appellant from the Branch Manager of the Bank, and reply dated 01.09.1989 (Annexure P-3) confirming bank guarantee received from the Bank are not disputed. It is also not disputed that after investigation C.B.I. found evidence against the then Branch Manager, and Ramdahin Singh, Senior Accounts Clerk of the appellant, as the persons responsible with the contractor, in the matter. It is also nobodys case that the appellant caused pecuniary loss to the exchequer. In the light of above, we find force in submission of learned counsel of the appellant that the appellant was bonafide in making the payment in question to the contractor, as he did make enquiries from the bank concerned before releasing mobilizing advance to the contractor. Copy of letter dated 29.08.1989 (Annexure-P1) sent by the appellant to Manager of Punjab & Sindh Bank is reproduced below:- OFFICE OF THE EXECUTIVE ENGINEER IRRIGATION DIVISION, GALUDIH Letter No. 916/Galudih/ Dated:29-08-1989 To, The Manager, Punjab and Sindh Bank, Jamshedpur Subject: Confirmation of Bank Guarantee No. 20/89 dated 29-08-1989 for Rs. 23,61,500/- issued in the name of Executive Engineer, Irrigation Division on behalf of M/s. D.K. Road Lines. Dear Sir, The above Bank Guarantee has been submitted by M/s. D.K. Road Lines as a security performance which has been issued by your Bank. It is, therefore, requested to please confirm the issue through Sri Ramdahin Singh, S.A.C of this Division, who is deputed in your bank for the purpose. It is also requested to please confirm the issue in future if any guarantee issued in my favour without waiting for any request letter. Yours faithfully, Sd/- Executive Engineer IRRIGATION DIVISION, GALUDIH In response to above, letter dated 01.09.1989 (Annexure-P3) appears to have been received by the appellant from the bank. The said letter reads as under:- PUNJAB AND SINDH BANK JAMSHEDPUR Dated: 01-09-1989 To, The Executive Engineer, Irrigation Division, Galudih Sir, Ref: Your letter No.916/Galudih dated 29-08-1989. In response to your letter mentioned above, we hereby confirm having issued bank guarantee No. 20/89 dated 29-08-1989 for Rs. 23,61,500/- and B.G. No. 21/89 dated 31-08-1989 for Rs. 23,61,500/- in your favour on behalf of M/s. D.K. Roadlines. This is for your information please. For PUNJAB & SINDH BANK Sd/- T.S. Gandhok, Manager, Jamshedpur 12. The Enquiry Report dated 18.10.1996 (enclosure to Annexure P-17), in its para 8, shows that though it is mentioned that charge is proved against the appellant in the enquiry, but the finding is based on earlier enquiry report. The earlier enquiry report was in question in C.W.J.C. No. 942 of 1994 in which punishment of withholding of three increments with cumulative effect was quashed. The authorities could not and should not have relied upon said enquiry report as basis in fresh enquiry for holding the appellant guilty of the charge and to award punishment of withholding of pension and gratuity. In the circumstances, we do not find that there was sufficient reason for the respondent authorities to exercise the powers under Rule 43 (b) read with Rule 139 of Bihar Pension Rules as neither there was pecuniary loss to the State, nor the present case is of a grave misconduct on the part of the appellant.
### Response:
1
### Explanation:
10. We have considered the submissions of learned counsel for the parties. The first charge sheet was admittedly served on the appellant on 13.06.1991, which was revoked consequent to order dated 10.10.1991, passed by the High Court in C.W.J.C. No. 4439 of 1991, whereby the suspension order issued against the appellant was quashed. By the same order dated 05.12.1991 (Annexuredepartmental enquiry was also dropped. Fresh charge sheet was served on the appellant on 20.05.1995 in the same matter. It is pertinent to mention here that when High Court in earlier round quashed the major punishment of withholding of three increments with cumulative effect, it did not disturb the minor punishment censure awarded against the employee. However, the High Court did observe that action can be taken in accordance with law11. The communication dated 29.08.1989 (AnnexureP1) sent by the appellantfrom the Branch Manager of the Bank, and reply dated 01.09.1989 (Annexureconfirming bank guarantee received from the Bank are not disputed. It is also not disputed that after investigation C.B.I. found evidence against the then Branch Manager, and Ramdahin Singh, Senior Accounts Clerk of the appellant, as the persons responsible with the contractor, in the matter. It is also nobodys case that the appellant caused pecuniary loss to the exchequer. In the light of above, we find force in submission of learned counsel of the appellant that the appellant was bonafide in making the payment in question to the contractor, as he did make enquiries from the bank concerned before releasing mobilizing advance to the contractor12. The Enquiry Report dated 18.10.1996 (enclosure to Annexure, in its para 8, shows that though it is mentioned that charge is proved against the appellant in the enquiry, but the finding is based on earlier enquiry report. The earlier enquiry report was in question in C.W.J.C. No. 942 of 1994 in which punishment of withholding of three increments with cumulative effect was quashed. The authorities could not and should not have relied upon said enquiry report as basis in fresh enquiry for holding the appellant guilty of the charge and to award punishment of withholding of pension and gratuity. In the circumstances, we do not find that there was sufficient reason for the respondent authorities to exercise the powers under Rule 43 (b) read with Rule 139 of Bihar Pension Rules as neither there was pecuniary loss to the State, nor the present case is of a grave misconduct on the part of the appellant.
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THE STATE OF UTTAR PRADESH Vs. SUDARSHANA CHATTERJEE | by contending that the respondent has abandoned the service of the appellants. The learned counsel further submitted that in CIMS, Regular Pension Scheme ceased to operate from 2004 and any employee who joined the service after 01.01.2004 was not entitled for Old Pension Scheme. It was submitted that since the respondent had the leave to her credit and it is not a case of ?absence? or ?overstay?, the High Court rightly directed the appellants to sanction and pay all the retiral benefits and the impugned orders do not warrant interference. 15. We have heard learned counsel for both the parties and considered the contentions and perused the impugned judgment and materials on record. 16. The High Court, with due respect, in our view, did not keep in view that even though the respondent?s leave application dated 30.04.2004 was pending consideration, the respondent on her own went and joined CIMS on 15.06.2004 and this has been suppressed by the respondent. It is also pertinent to note that after joining CIMS and working in CIMS, the respondent made another application for grant of one month earned leave on 23.07.2004 by citing the reason ?personal work?. This application came to be sanctioned vide order dated 07.08.2004 by granting the respondent earned leave from 23.07.2004 to 22.08.2004. In this manner, the respondent remained in the service of two State Governments i.e. State of UP and State of Chhattisgarh-CIMS and she is alleged to have drawn salary from both the State Governments for the period from June, 2004 to October, 2004. The High Court, in our view, did not keep in view the conduct of the respondent. The High Court appears to have proceeded merely on the ground that no orders came to be passed on the leave applications filed by the respondent. 17. Be that as it may, in Writ A. No.65084 of 2015, though the High Court directed the State Government to pass fresh orders in accordance with law, while directing the State Government to pass fresh orders in accordance with law, the High Court, in our view, was not right in putting restrictions upon the appellants by saying that the fresh orders will have to be passed in the light of the observations made by the High Court. In such view of the matter, we are of the view that the order passed by the High Court dated 24.08.2018 cannot be sustained and is liable to be set aside. 18. While disposing Writ A. No.65084 of 2015, the High Court directed the Principal Secretary (Medical Education and Training Department), Government of U.P. to examine the case of the respondent and pass fresh orders in accordance with law. Accordingly, the Principal Secretary has passed the order on 04.01.2019 whereby the claim of the respondent was considered afresh and the same was rejected by passing a speaking order. The respondent filed Writ-A No.3884 of 2019 challenging the order dated 04.01.2019. While entertaining the said writ petition of the respondent, vide the impugned order dated 15.03.2019, the High Court observed that the order dated 04.01.2019 could not have been passed since the order dated 01.04.2015 was already quashed by the High Court by finding that the respondent is entitled to pension and further for adjustment of the period of her absence from the Motilal Nehru Medical College, Allahabad till the time of her joining CIMS against such leave as may be available to her account and for voluntary retirement. The High Court has observed that in the light of its earlier order dated 24.08.2018, the order dated 04.01.2019 could not have been passed and directed the Principal Secretary (Medical Education and Training Department), Government of U.P. to appear before the court and explain. 19. The High Court, in our view, was not right in directing the Principal Secretary to appear in the court and explain the reason for passing the order dated 04.01.2019. Observing that merely because an order has been passed by the officer, it does not warrant the personal presence of the officer in the Court and summoning of officers to the Court and eventually affect the public at large, in Shri N.K. Janu, Deputy Director Social Forestary Division, Agra and Others v. Lakshmi Chandra 2019 (6) SCALE 236 , the Supreme Court held as under:-?22. Having said so, we find that the High Court was not justified in passing orders from time to time to secure presence of the officers. The officers of the State discharge public functions and duties. The orders are generally presumed to be passed in good faith unless proved otherwise. The officers pass orders as a custodian of public money. Therefore, merely because an order has been passed, it does not warrant their personal presence. The summoning of officers to the court to attend proceedings, impinges upon the functioning of the officers and eventually it is the public at large who suffer on account of their absence from the duties assigned to them. The practice of summoning officers to court is not proper and does not serve the purpose of administration of justice in view of the separation of powers of the Executive and the Judiciary. If an order is not legal, the Courts have ample jurisdiction to set aside such order and to issue such directions as may be warranted in the facts of the case.?The above observation squarely applies to the case in hand. When Writ-A No.65084 of 2015 was disposed of directing the Principal Secretary to pass orders in accordance with law, the Principal Secretary considered the matter afresh and passed the speaking order dated 04.01.2019. Merely because the Principal Secretary has passed the said order, the High Court, in our view, was not right in directing the presence of Principal Secretary in the Court and explain as to the reasons in passing the said order dated 04.01.2019. The impugned order dated 15.03.2019 passed in Writ A. No.3884 of 2019 is set aside and the appeal arising out of SLP(C) No.10542 of 2019 is allowed. | 1[ds]16. The High Court, with due respect, in our view, did not keep in view that even though the respondent?s leave application dated 30.04.2004 was pending consideration, the respondent on her own went and joined CIMS on 15.06.2004 and this has been suppressed by the respondent. It is also pertinent to note that after joining CIMS and working in CIMS, the respondent made another application for grant of one month earned leave on 23.07.2004 by citing the reason ?personal work?. This application came to be sanctioned vide order dated 07.08.2004 by granting the respondent earned leave from 23.07.2004 to 22.08.2004. In this manner, the respondent remained in the service of two State Governments i.e. State of UP and State of Chhattisgarh-CIMS and she is alleged to have drawn salary from both the State Governments for the period from June, 2004 to October, 2004. The High Court, in our view, did not keep in view the conduct of the respondent. The High Court appears to have proceeded merely on the ground that no orders came to be passed on the leave applications filed by the respondent.Be that as it may, in Writ A. No.65084 of 2015, though the High Court directed the State Government to pass fresh orders in accordance with law, while directing the State Government to pass fresh orders in accordance with law, the High Court, in our view, was not right in putting restrictions upon the appellants by saying that the fresh orders will have to be passed in the light of the observations made by the High Court. In such view of the matter, we are of the view that the order passed by the High Court dated 24.08.2018 cannot be sustained and is liable to be set aside.The High Court, in our view, was not right in directing the Principal Secretary to appear in the court and explain the reason for passing the order dated 04.01.2019. Observing that merely because an order has been passed by the officer, it does not warrant the personal presence of the officer in the Court and summoning of officers to the Court and eventually affect the public atShri N.K. Janu, Deputy Director Social Forestary Division, Agra and Others v. Lakshmi Chandra 2019 (6) SCALE 236 , the Supreme Court held asHaving said so, we find that the High Court was not justified in passing orders from time to time to secure presence of the officers. The officers of the State discharge public functions and duties. The orders are generally presumed to be passed in good faith unless proved otherwise. The officers pass orders as a custodian of public money. Therefore, merely because an order has been passed, it does not warrant their personal presence. The summoning of officers to the court to attend proceedings, impinges upon the functioning of the officers and eventually it is the public at large who suffer on account of their absence from the duties assigned to them. The practice of summoning officers to court is not proper and does not serve the purpose of administration of justice in view of the separation of powers of the Executive and the Judiciary. If an order is not legal, the Courts have ample jurisdiction to set aside such order and to issue such directions as may be warranted in the facts of theabove observation squarely applies to the case in hand. When Writ-A No.65084 of 2015 was disposed of directing the Principal Secretary to pass orders in accordance with law, the Principal Secretary considered the matter afresh and passed the speaking order dated 04.01.2019. Merely because the Principal Secretary has passed the said order, the High Court, in our view, was not right in directing the presence of Principal Secretary in the Court and explain as to the reasons in passing the said order dated 04.01.2019. The impugned order dated 15.03.2019 passed in Writ A. No.3884 of 2019 is set aside and the appeal arising out of SLP(C) No.10542 of 2019 is allowed. | 1 | 3,417 | 731 | ### 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:
by contending that the respondent has abandoned the service of the appellants. The learned counsel further submitted that in CIMS, Regular Pension Scheme ceased to operate from 2004 and any employee who joined the service after 01.01.2004 was not entitled for Old Pension Scheme. It was submitted that since the respondent had the leave to her credit and it is not a case of ?absence? or ?overstay?, the High Court rightly directed the appellants to sanction and pay all the retiral benefits and the impugned orders do not warrant interference. 15. We have heard learned counsel for both the parties and considered the contentions and perused the impugned judgment and materials on record. 16. The High Court, with due respect, in our view, did not keep in view that even though the respondent?s leave application dated 30.04.2004 was pending consideration, the respondent on her own went and joined CIMS on 15.06.2004 and this has been suppressed by the respondent. It is also pertinent to note that after joining CIMS and working in CIMS, the respondent made another application for grant of one month earned leave on 23.07.2004 by citing the reason ?personal work?. This application came to be sanctioned vide order dated 07.08.2004 by granting the respondent earned leave from 23.07.2004 to 22.08.2004. In this manner, the respondent remained in the service of two State Governments i.e. State of UP and State of Chhattisgarh-CIMS and she is alleged to have drawn salary from both the State Governments for the period from June, 2004 to October, 2004. The High Court, in our view, did not keep in view the conduct of the respondent. The High Court appears to have proceeded merely on the ground that no orders came to be passed on the leave applications filed by the respondent. 17. Be that as it may, in Writ A. No.65084 of 2015, though the High Court directed the State Government to pass fresh orders in accordance with law, while directing the State Government to pass fresh orders in accordance with law, the High Court, in our view, was not right in putting restrictions upon the appellants by saying that the fresh orders will have to be passed in the light of the observations made by the High Court. In such view of the matter, we are of the view that the order passed by the High Court dated 24.08.2018 cannot be sustained and is liable to be set aside. 18. While disposing Writ A. No.65084 of 2015, the High Court directed the Principal Secretary (Medical Education and Training Department), Government of U.P. to examine the case of the respondent and pass fresh orders in accordance with law. Accordingly, the Principal Secretary has passed the order on 04.01.2019 whereby the claim of the respondent was considered afresh and the same was rejected by passing a speaking order. The respondent filed Writ-A No.3884 of 2019 challenging the order dated 04.01.2019. While entertaining the said writ petition of the respondent, vide the impugned order dated 15.03.2019, the High Court observed that the order dated 04.01.2019 could not have been passed since the order dated 01.04.2015 was already quashed by the High Court by finding that the respondent is entitled to pension and further for adjustment of the period of her absence from the Motilal Nehru Medical College, Allahabad till the time of her joining CIMS against such leave as may be available to her account and for voluntary retirement. The High Court has observed that in the light of its earlier order dated 24.08.2018, the order dated 04.01.2019 could not have been passed and directed the Principal Secretary (Medical Education and Training Department), Government of U.P. to appear before the court and explain. 19. The High Court, in our view, was not right in directing the Principal Secretary to appear in the court and explain the reason for passing the order dated 04.01.2019. Observing that merely because an order has been passed by the officer, it does not warrant the personal presence of the officer in the Court and summoning of officers to the Court and eventually affect the public at large, in Shri N.K. Janu, Deputy Director Social Forestary Division, Agra and Others v. Lakshmi Chandra 2019 (6) SCALE 236 , the Supreme Court held as under:-?22. Having said so, we find that the High Court was not justified in passing orders from time to time to secure presence of the officers. The officers of the State discharge public functions and duties. The orders are generally presumed to be passed in good faith unless proved otherwise. The officers pass orders as a custodian of public money. Therefore, merely because an order has been passed, it does not warrant their personal presence. The summoning of officers to the court to attend proceedings, impinges upon the functioning of the officers and eventually it is the public at large who suffer on account of their absence from the duties assigned to them. The practice of summoning officers to court is not proper and does not serve the purpose of administration of justice in view of the separation of powers of the Executive and the Judiciary. If an order is not legal, the Courts have ample jurisdiction to set aside such order and to issue such directions as may be warranted in the facts of the case.?The above observation squarely applies to the case in hand. When Writ-A No.65084 of 2015 was disposed of directing the Principal Secretary to pass orders in accordance with law, the Principal Secretary considered the matter afresh and passed the speaking order dated 04.01.2019. Merely because the Principal Secretary has passed the said order, the High Court, in our view, was not right in directing the presence of Principal Secretary in the Court and explain as to the reasons in passing the said order dated 04.01.2019. The impugned order dated 15.03.2019 passed in Writ A. No.3884 of 2019 is set aside and the appeal arising out of SLP(C) No.10542 of 2019 is allowed.
### Response:
1
### Explanation:
16. The High Court, with due respect, in our view, did not keep in view that even though the respondent?s leave application dated 30.04.2004 was pending consideration, the respondent on her own went and joined CIMS on 15.06.2004 and this has been suppressed by the respondent. It is also pertinent to note that after joining CIMS and working in CIMS, the respondent made another application for grant of one month earned leave on 23.07.2004 by citing the reason ?personal work?. This application came to be sanctioned vide order dated 07.08.2004 by granting the respondent earned leave from 23.07.2004 to 22.08.2004. In this manner, the respondent remained in the service of two State Governments i.e. State of UP and State of Chhattisgarh-CIMS and she is alleged to have drawn salary from both the State Governments for the period from June, 2004 to October, 2004. The High Court, in our view, did not keep in view the conduct of the respondent. The High Court appears to have proceeded merely on the ground that no orders came to be passed on the leave applications filed by the respondent.Be that as it may, in Writ A. No.65084 of 2015, though the High Court directed the State Government to pass fresh orders in accordance with law, while directing the State Government to pass fresh orders in accordance with law, the High Court, in our view, was not right in putting restrictions upon the appellants by saying that the fresh orders will have to be passed in the light of the observations made by the High Court. In such view of the matter, we are of the view that the order passed by the High Court dated 24.08.2018 cannot be sustained and is liable to be set aside.The High Court, in our view, was not right in directing the Principal Secretary to appear in the court and explain the reason for passing the order dated 04.01.2019. Observing that merely because an order has been passed by the officer, it does not warrant the personal presence of the officer in the Court and summoning of officers to the Court and eventually affect the public atShri N.K. Janu, Deputy Director Social Forestary Division, Agra and Others v. Lakshmi Chandra 2019 (6) SCALE 236 , the Supreme Court held asHaving said so, we find that the High Court was not justified in passing orders from time to time to secure presence of the officers. The officers of the State discharge public functions and duties. The orders are generally presumed to be passed in good faith unless proved otherwise. The officers pass orders as a custodian of public money. Therefore, merely because an order has been passed, it does not warrant their personal presence. The summoning of officers to the court to attend proceedings, impinges upon the functioning of the officers and eventually it is the public at large who suffer on account of their absence from the duties assigned to them. The practice of summoning officers to court is not proper and does not serve the purpose of administration of justice in view of the separation of powers of the Executive and the Judiciary. If an order is not legal, the Courts have ample jurisdiction to set aside such order and to issue such directions as may be warranted in the facts of theabove observation squarely applies to the case in hand. When Writ-A No.65084 of 2015 was disposed of directing the Principal Secretary to pass orders in accordance with law, the Principal Secretary considered the matter afresh and passed the speaking order dated 04.01.2019. Merely because the Principal Secretary has passed the said order, the High Court, in our view, was not right in directing the presence of Principal Secretary in the Court and explain as to the reasons in passing the said order dated 04.01.2019. The impugned order dated 15.03.2019 passed in Writ A. No.3884 of 2019 is set aside and the appeal arising out of SLP(C) No.10542 of 2019 is allowed.
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The Commissioner Of Income-Tax, West Bengal,Ii Calcutta Vs. M/S. Naga Hills Tea Co. Ltd | was referred to the High Court. As mentioned earlier, the High Court has answered that question in favour of the assessee.5. We may now read the relevant provisions of the Finance Act, 1959. They are found in Paragraph D of Part II of the First Schedule to the Finance Act, 1959 and are as under:"In the case of the Life Insurance Corporation of India established under the Life Insurance Corporation Act, 1956 (XXXI of 1956),RATE OF SUPER-TAXOn the whole of its profits and gains from life insurance business. ... 11% In the case of every other company,- RATE OF SUPER-TAXOn the whole of the total income... 50% Provided that, -(i) a rebate at the rate of 40 per cent on so much of the total income as consists of dividends from a subsidiary Indian company and a rebate at the rate of 35 per cent on the balance of the total income shall be allowed in the case of any company which-(a) in respect of its profits liable to tax under the Income-tax Act for the year ending on the 31st day of March, 1960, has made the prescribed arrangement for the declaration and payment within India of the dividends payable out of such profits and for the deduction of super-tax from dividends in accordance with the provisions of sub-section (3-D) of Section 18 of that Act, and(b) is such a company as is referred to in sub-section (9) of Section 23-A of the Income-tax Act with a total Income not exceeding Rs. 25,000;(ii) a-rebate at the rate of 40 per cent on so much of the total income as consists of dividends from a subsidiary Indian company and a rebate at the rate of 30% on the balance of the total income shall be allowed in the case of any company which satisfied condition (a) but not condition (b) of the preceding clause;(iii) a rebate at the rate of 40% on so much of the total income as consists of dividends from a subsidiary Indian company and a rebate at the rate of 20% on the balance of the total income shall be allowed in the case of any company not entitled to a rebate under either of the preceding clauses: Provided further that,-(i) the amount of the rebate under clause (i) or clause (ii) shall be reduced by the sum, if any, equal to the amount or the aggregate of the amounts, as the case may be, computed as hereunder:(a) on that part of the aggregate of the sums arrived at in accordance with clause (i) of the second proviso to paragraph D of Part II of the First Schedule to the Finance Act, 1958 (XI of 1958), as has not been deemed to have been taken into account, in accordance with clause (ii) of the said proviso, for the purpose of reducing the rebate mentioned ~ clause (i) of the said proviso to nil;(b) ............"6. At the outset we may mention that the provision of law is extremely confusing.It required more than one reading on our pert to understand what it means. One thing is clear from the provision, namely it does not provide for carryover of any unabsorbed rebate from year to year. Mr. Ramachandran contended that when the Finance Act says "on that part of the aggregate of the sums arrived at in accordance with clause (i) of the second proviso to Paragraph D of Part II of the First Schedule to the Finance Act 1958 (Act XI of 1958) as has not been deemed to have been taken into account, in accordance with clause (ii) of the said proviso, for the purpose of reducing the rebate mentioned in clause (i) of the said proviso to nil", it means that the unabsorbed reduction of rebate can be carried forward until it is reduced to nil. We are unable to accept this contention as correct. In our opinion, all that provision provides for is that i! there is any unabsorbed reduction of rebate in the assessment year 1958-59, then that can be taken into consideration while allowing rebate in the assessment year 1959-60.We are unable to read into the provision in question a power to the Revenue to take into consideration any unabsorbed reduction in rebate for any year prior to l958-59. That is e view taken by the Calcutta High Court in the case mentioned earlier. The Calcutta High Court opined in that case that the second proviso to Paragraph D of Part II of the First Schedule to the Finance Act, 1559 provides that the amount of rebate to be allowed under clauses (i) and (ii) of the first proviso thereto has to Ix reduced to the sum, if any, equal to the amount or the aggregate of the amount, as the case may be, computed in the manner set out in the second proviso. It further observed:"Now, clause (i) (a) of the second proviso refers to the aggregate of the sums arrived, at in accordance with clause (i) of the second proviso to Paragraph D of Part II of the First Schedule to the Finance Act of l958. The aforesaid proviso in 1958 Act, therefore, can apply only when there was a total income in terms of 1958 Act and certain reduction from that total income remained unabsorbed in 1958. If a particular assessee had suffered loss in 1958, there was no income to which a rate of super-tax prescribed in the 1958 Act could be applied and if no rate of super-tax was applicable, there was no question of rebate or reduction in rebate to be allowed under the 1958 Act" We are in entire agreement with the view expressed therein At any rate the view taken by the High Court appears to be a reasonable view. If a provision of a Taxing Statute can be reasonably interpreted in two ways, that interpretation which is favourable to the assessee, has got to be accepted. This is a well accepted view of law. | 0[ds]In our opinion, all that provision provides for is that i! there is any unabsorbed reduction of rebate in the assessment year 1958-59, then that can be taken into consideration while allowing rebate in the assessment year 1959-60.We are unable to read into the provision in question a power to the Revenue to take into consideration any unabsorbed reduction in rebate for any year prior to l958-59. That is e view taken by the Calcutta High Court in the case mentioned earlier. The Calcutta High Court opined in that case that the second proviso to Paragraph D of Part II of the First Schedule to the Finance Act, 1559 provides that the amount of rebate to be allowed under clauses (i) and (ii) of the first proviso thereto has to Ix reduced to the sum, if any, equal to the amount or the aggregate of the amount, as the case may be, computed in the manner set out in the secondare in entire agreement with the view expressed therein At any rate the view taken by the High Court appears to be a reasonable view. If a provision of a Taxing Statute can be reasonably interpreted in two ways, that interpretation which is favourable to the assessee, has got to be accepted. This is a well accepted view of law. | 0 | 1,718 | 243 | ### 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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was referred to the High Court. As mentioned earlier, the High Court has answered that question in favour of the assessee.5. We may now read the relevant provisions of the Finance Act, 1959. They are found in Paragraph D of Part II of the First Schedule to the Finance Act, 1959 and are as under:"In the case of the Life Insurance Corporation of India established under the Life Insurance Corporation Act, 1956 (XXXI of 1956),RATE OF SUPER-TAXOn the whole of its profits and gains from life insurance business. ... 11% In the case of every other company,- RATE OF SUPER-TAXOn the whole of the total income... 50% Provided that, -(i) a rebate at the rate of 40 per cent on so much of the total income as consists of dividends from a subsidiary Indian company and a rebate at the rate of 35 per cent on the balance of the total income shall be allowed in the case of any company which-(a) in respect of its profits liable to tax under the Income-tax Act for the year ending on the 31st day of March, 1960, has made the prescribed arrangement for the declaration and payment within India of the dividends payable out of such profits and for the deduction of super-tax from dividends in accordance with the provisions of sub-section (3-D) of Section 18 of that Act, and(b) is such a company as is referred to in sub-section (9) of Section 23-A of the Income-tax Act with a total Income not exceeding Rs. 25,000;(ii) a-rebate at the rate of 40 per cent on so much of the total income as consists of dividends from a subsidiary Indian company and a rebate at the rate of 30% on the balance of the total income shall be allowed in the case of any company which satisfied condition (a) but not condition (b) of the preceding clause;(iii) a rebate at the rate of 40% on so much of the total income as consists of dividends from a subsidiary Indian company and a rebate at the rate of 20% on the balance of the total income shall be allowed in the case of any company not entitled to a rebate under either of the preceding clauses: Provided further that,-(i) the amount of the rebate under clause (i) or clause (ii) shall be reduced by the sum, if any, equal to the amount or the aggregate of the amounts, as the case may be, computed as hereunder:(a) on that part of the aggregate of the sums arrived at in accordance with clause (i) of the second proviso to paragraph D of Part II of the First Schedule to the Finance Act, 1958 (XI of 1958), as has not been deemed to have been taken into account, in accordance with clause (ii) of the said proviso, for the purpose of reducing the rebate mentioned ~ clause (i) of the said proviso to nil;(b) ............"6. At the outset we may mention that the provision of law is extremely confusing.It required more than one reading on our pert to understand what it means. One thing is clear from the provision, namely it does not provide for carryover of any unabsorbed rebate from year to year. Mr. Ramachandran contended that when the Finance Act says "on that part of the aggregate of the sums arrived at in accordance with clause (i) of the second proviso to Paragraph D of Part II of the First Schedule to the Finance Act 1958 (Act XI of 1958) as has not been deemed to have been taken into account, in accordance with clause (ii) of the said proviso, for the purpose of reducing the rebate mentioned in clause (i) of the said proviso to nil", it means that the unabsorbed reduction of rebate can be carried forward until it is reduced to nil. We are unable to accept this contention as correct. In our opinion, all that provision provides for is that i! there is any unabsorbed reduction of rebate in the assessment year 1958-59, then that can be taken into consideration while allowing rebate in the assessment year 1959-60.We are unable to read into the provision in question a power to the Revenue to take into consideration any unabsorbed reduction in rebate for any year prior to l958-59. That is e view taken by the Calcutta High Court in the case mentioned earlier. The Calcutta High Court opined in that case that the second proviso to Paragraph D of Part II of the First Schedule to the Finance Act, 1559 provides that the amount of rebate to be allowed under clauses (i) and (ii) of the first proviso thereto has to Ix reduced to the sum, if any, equal to the amount or the aggregate of the amount, as the case may be, computed in the manner set out in the second proviso. It further observed:"Now, clause (i) (a) of the second proviso refers to the aggregate of the sums arrived, at in accordance with clause (i) of the second proviso to Paragraph D of Part II of the First Schedule to the Finance Act of l958. The aforesaid proviso in 1958 Act, therefore, can apply only when there was a total income in terms of 1958 Act and certain reduction from that total income remained unabsorbed in 1958. If a particular assessee had suffered loss in 1958, there was no income to which a rate of super-tax prescribed in the 1958 Act could be applied and if no rate of super-tax was applicable, there was no question of rebate or reduction in rebate to be allowed under the 1958 Act" We are in entire agreement with the view expressed therein At any rate the view taken by the High Court appears to be a reasonable view. If a provision of a Taxing Statute can be reasonably interpreted in two ways, that interpretation which is favourable to the assessee, has got to be accepted. This is a well accepted view of law.
### Response:
0
### Explanation:
In our opinion, all that provision provides for is that i! there is any unabsorbed reduction of rebate in the assessment year 1958-59, then that can be taken into consideration while allowing rebate in the assessment year 1959-60.We are unable to read into the provision in question a power to the Revenue to take into consideration any unabsorbed reduction in rebate for any year prior to l958-59. That is e view taken by the Calcutta High Court in the case mentioned earlier. The Calcutta High Court opined in that case that the second proviso to Paragraph D of Part II of the First Schedule to the Finance Act, 1559 provides that the amount of rebate to be allowed under clauses (i) and (ii) of the first proviso thereto has to Ix reduced to the sum, if any, equal to the amount or the aggregate of the amount, as the case may be, computed in the manner set out in the secondare in entire agreement with the view expressed therein At any rate the view taken by the High Court appears to be a reasonable view. If a provision of a Taxing Statute can be reasonably interpreted in two ways, that interpretation which is favourable to the assessee, has got to be accepted. This is a well accepted view of law.
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Kiran Gems Private Limited Vs. Union of India and Others | is not a government company 48. It is well settled principle of interpretation that statutory rules must be construed in harmony with the rule making power, in exercise of which, the statutory rule has been made. If it were possible to interpret the statutory rule in more ways than one, the Courts would prefer that interpretation which would make the statutory rule workable and intra vires, to that interpretation which would render the rule ultra vires and invalid. 49. On a plain reading of Rule 5A(2) of the Service Tax Rules, the said Rule does not empower the CAG to audit the accounts of any assessee. While sub-rule (1) of Rule 5A provides for access of any officer authorized by the Commissioner to any premises registered under the Service Tax Rules, for carrying out any scrutiny, verification or check, as may be necessary to safeguard the interest of revenue, sub-rule (2) of Rule 5A only casts an obligation on the assessee to make the records and documents as specified in the said Rule available to the officer authorized by the Commissioner, or the audit party deputed by the Commissioner or the Comptroller and Auditor General of India within a reasonable time not exceeding 15 working days from the date of demand. 20.1. In the above case, Court accepted the statement of the petitioner that Section 16 of the CAGs (DPC) Act does not authorize the CAG or any audit team under the control of CAG to audit the accounts of a non-government company, that too, in the absence of any request either from the President of India or Governor of the State in which the company is having its operation. 21. In a subsequent decision in the case of A.C.L. Education Centre (P) Ltd Vs. Union of India & Ors.5 , a Division Bench of the Allahabad High Court considered the challenge to the vires of Rule 5A(2) of the Service Tax Rules, 1994, inter alia, on the ground that the said rule was contrary to the provisions of Section 72 of the Service Tax Act and rejected the said challenge. However, since in the facts of the said case, inquiry and investigation for special audit was specifically invoked under the provisions of Rule 5A of the Service Tax Rules, 1994 in the case of a private assessee i.e the petitioner therein, the Court in paragraphs 25, 26 and 27 held as under : 25. From the above, it is crystal clear that in case of private assessee, the Commissioner will refer the matter to an officer to collect the material or Chartered Accountant for the purpose of audit. Thus, for the purpose of audit, the material can be collected either by the officer authorized by the Commissioner or by the Auditor himself. But, audit will be performed only by the Chartered Accountant 26.It is pious duty of the assessee to make available the record as mentioned in Rule 5A i.e. trial balance or its equivalent; and the Income-tax audit report, if any, under Section 142(2A) of the Income Tax Act, 1961, for the scrutiny of the officer or the Audit Party, as the case may be. 27.Thus, we find that there is no inconsistency in Rule 5A and Section 72A of the Finance Act, 1994. The said provision is not arbitrary. The manner for conducting the audit is as per the accounting standard provided by the Institute of Chartered Accountant of India. The audit report will be made available to the assessee, as per law. 22. Petitioners submission that there are specific statutory provisions under which special audit of accounts of the petitioner company can be conducted by following the due process of law therefore needs to be accepted. Case of the respondents in the affidavit-in-reply that the impugned communication has been issued under the provisions of Section 16 of the CAGs (DPC) Act and that CERA is authorized to extend the audit exercise to the petitioners accounts therefore deserves to be rejected for want of jurisdiction and statutory authority. Case of the respondents that CERA is authorised to conduct the audit of the department and as part of the said audit examination of the records of the private company can be examined to ascertain whether the Government is getting its due share by way of indirect taxes deposited by the private company and therefore private company is bound to provide all records and documents called for by CERA deserves to be rejected looking at the scheme of Chapter III discussed above. 23. In view of the above, it is clear that the statutory responsibility of the CAG is to audit receipts of the Union and States. These receipts include both direct and indirect taxes. It is duty of the Central Excise Revenue Audit (CERA) to see that sums due to the Government are properly assessed, realized and credited to the Government account. The scheme enacted and envisaged in Chapter III of the CAGs (DPC) Act, 1971 begins with the word Comptroller or Auditor General to compile accounts of Union and or States. The statutory scheme clearly states that the CAG shall from the accounts compiled by him or by the Government or any person responsible prepare in each year accounts showing under the respective heads, the annual receipts and disbursement for the purpose of the Union, each State or each Union Territory and shall submit the same to the President or the Governor or the Administrator, as the case may be. It is in such context that the provisions of Section 16 pertaining to audit of all receipts which are payable into the Consolidated Fund of India and each State and of each Union Territory is required to be construed with respect to the accounts maintained in the Government departments / Corporations belonging to the Government. In view of the mandate of Section 16 of the CAGS (DPC) Act, 1971, CERA audit cannot be extended to call for audit of a private entity such as the petitioner company | 1[ds]11.1. The above-mentioned section is applicable, where the assessee is not maintaining the books of account properly to ascertain the liability of service tax. To determine the correct tax, books will have to be examined and if need be, audited by a qualified Chartered Accountant.11.2. It may be mentioned that the accounts will be audited by a Chartered Accountant or a Cost Accountant to be appointed by the Commissioner. In Clause (2) to Section 72A, it is stated that the Chartered Accountant or Cost Accountant will submit a report duly signed and certified by him to the Commissioner. In Clause (4), it is stated that the person liable to pay tax shall be given an opportunity of being heard in respect of any material gathered on the basis of the audit under sub-section (1) and proposed to be utilized in any proceeding. Copy of the audit report may be made available to the assessee and a proper opportunity will also be provided to him, as per law.12.1. Rule 5A sub-rule (2) states that every assessee shall, on demand, make available to the officer authorised or the audit party, records, trial balance and income-tax audit report, if any. The officer may demand the documents to ensure correctness of the books of accounts and ultimately, the audit will be conducted by the audit party headed by the Chartered Accountant/Cost Accountant, as the case may be, deputed by the Commissioner. It is Commissioner on whose behalf the officer will collect the material and the auditor will perform the audit. In any case, the final report duly signed by the Chartered Accountant will be submitted to the Commissioner. In case of government autonomous bodies, the function of audit has been assigned to CAG.13. From the above, it is crystal clear that in case of a private assessee, Commissioner will refer the matter to an officer to collect the material or Chartered Accountant for the purpose of audit. Thus, for the purpose of audit, material can be collected either by the officer authorized by the Commissioner or by the auditor himself. But, audit will be performed only by the Chartered Accountant. It is the pious duty of the assessee to make available the record as mentioned in Rule 5A i.e. trial balance or its equivalent; and the Income-tax audit report, if any, under Section 142(2A) of the Income Tax Act, 1961, for the scrutiny of the officer or the audit party, as the case may be.14. Admittedly, in the present case the impugned notice / intimation dated 10.01.2019 seeking audit of petitioners accounts is not contemplated under the provisions of Rule 5A of the Service Tax Rules, 1994. On the contrary, it is the assertion of the respondents that these have been issued under section 16 of CAGs (DPC) Act.18. From the above it is clearly discernible that the power of the CAG under Chapter III extends to any office or department of the Government and cannot be construed to extend to a private entity. The provisions of Chapter III envisage that for the purpose of audit it shall be the duty of the CAG to conduct audit of the receipts payable into the Consolidated Fund of India of the Union or a State as applicable and to put such questions or make such observances as the CAG may consider necessary to the person in-charge of the office or to call for such information as required for preparation of any account or report pertaining to the concerned Government office or department. This scheme clearly concludes that the CAG cannot have jurisdiction to audit the accounts of a private entity directly18.1. However there is one exception to the above power and duty of the CAG which is contemplated under Section 20 of the CAGs (DPC) Act. Section 20 states that if the CAG is requested by the President of India or by the Governor of a State or by the Administrator of an Union Territory, as the case may be, to undertake the audit of accounts of any body or authority on such terms and conditions as may be agreed upon, then the CAG shall undertake such an exercise. This special power of audit of any body or authority which has not been entrusted in the CAG by or by any law made by Parliament is the only provision under which the CAG is empowered either by the President or by the Governor or by the Administrator to undertake the exercise of audit of accounts of any body or authority. But on a reading of this provision it is quite evident that even this provision would extend to a body or authority which undertakes the functions of the Government.We find sufficient force in the assertion of the petitioner keeping in mind provisions of Chapter III of the CAGs (DPC) Act.19. Further submission of learned counsel for the petitioner that the Central Goods and Services Tax Act, 2017 has no provision empowering CERA to conduct audit of the petitioners records also merits acceptance. Brief perusal of the annexure to the impugned communication reveals that detailed audit of the petitioners accounts and records is sought for the period 2015-16 to 2017-18 i.e. for a period of three years by respondent No.3. Such a detailed audit can only be called for under relevant and specific statutes. It is settled law that jurisdiction goes to the root of a matter and power of any authority invoking such jurisdiction to call for special audit needs to be traceable to the relevant statutory provision. In the absence of statutory backing, such an exercise of power would be invalid and nonest. In the present case, the impugned notice / letter dated 10.01.2019 calls for CERA audit and respondents in their affidavit-inreply have relied on the provisions of Section 16 of the CAGs (DPC) Act to justify the impugned communication. If that be the case then as discussed hereinabove, the respondents action is wholly without jurisdiction and unconstitutional.20. In the case of SKP Securities Ltd Vs. Deputy Director (Ra-IDT)4 , a single Judge of the Calcutta High Court was considering a challenge to a notice issued by the office of the Principal Director of Audit, Central Kolkata, for audit, by the Central Excise Revenue Audit (CERA) team, an audit team under the Comptroller and AuditorGeneral of India, of the service tax records, accounts and other related documents of the petitioner company. The question framed in the said writ petition was whether CERA, an audit wing of the Principal Director of Audit (Central), Kolkata under the Comptroller and Auditor-General of India, had the power and / or authority and / or jurisdiction to audit the accounts, service tax records or other documents of the petitioner company therein, which was not an undertaking of the Central Government or any State Government. It was an admitted position in that case that the petitioner company was not run out of funds or loans provided by the Central Government or by any State Government or by any other Government Undertaking or organization. In this backdrop, after considering governance of the petitioner company by the provisions of the Companies Act, 1956 containing provisions for special audit, the learned Single Judge in paragraphs 47 to 49 of the said decision made the following observations:-47. In the absence of any provision in Chapter V of the Finance Act, 1994 for audit of the accounts of a nongovernment company by the Comptroller and Auditor General of India or any team under him, the Central Government could not have framed, and has not framed any rules which provide for audit by the Comptroller and Auditor General of India or any audit team under his control of an assessee which is not a government company48. It is well settled principle of interpretation that statutory rules must be construed in harmony with the rule making power, in exercise of which, the statutory rule has been made. If it were possible to interpret the statutory rule in more ways than one, the Courts would prefer that interpretation which would make the statutory rule workable and intra vires, to that interpretation which would render the rule ultra vires and invalid.49. On a plain reading of Rule 5A(2) of the Service Tax Rules, the said Rule does not empower the CAG to audit the accounts of any assessee. While sub-rule (1) of Rule 5A provides for access of any officer authorized by the Commissioner to any premises registered under the Service Tax Rules, for carrying out any scrutiny, verification or check, as may be necessary to safeguard the interest of revenue, sub-rule (2) of Rule 5A only casts an obligation on the assessee to make the records and documents as specified in the said Rule available to the officer authorized by the Commissioner, or the audit party deputed by the Commissioner or the Comptroller and Auditor General of India within a reasonable time not exceeding 15 working days from the date of demand.20.1. In the above case, Court accepted the statement of the petitioner that Section 16 of the CAGs (DPC) Act does not authorize the CAG or any audit team under the control of CAG to audit the accounts of a non-government company, that too, in the absence of any request either from the President of India or Governor of the State in which the company is having its operation.21. In a subsequent decision in the case of A.C.L. Education Centre (P) Ltd Vs. Union of India & Ors.5 , a Division Bench of the Allahabad High Court considered the challenge to the vires of Rule 5A(2) of the Service Tax Rules, 1994, inter alia, on the ground that the said rule was contrary to the provisions of Section 72 of the Service Tax Act and rejected the said challenge. However, since in the facts of the said case, inquiry and investigation for special audit was specifically invoked under the provisions of Rule 5A of the Service Tax Rules, 1994 in the case of a private assessee i.e the petitioner therein, the Court in paragraphs 25, 26 and 27 held as under :25. From the above, it is crystal clear that in case of private assessee, the Commissioner will refer the matter to an officer to collect the material or Chartered Accountant for the purpose of audit. Thus, for the purpose of audit, the material can be collected either by the officer authorized by the Commissioner or by the Auditor himself. But, audit will be performed only by the Chartered Accountant26.It is pious duty of the assessee to make available the record as mentioned in Rule 5A i.e. trial balance or its equivalent; and the Income-tax audit report, if any, under Section 142(2A) of the Income Tax Act, 1961, for the scrutiny of the officer or the Audit Party, as the case may be.27.Thus, we find that there is no inconsistency in Rule 5A and Section 72A of the Finance Act, 1994. The said provision is not arbitrary. The manner for conducting the audit is as per the accounting standard provided by the Institute of Chartered Accountant of India. The audit report will be made available to the assessee, as per law.22. Petitioners submission that there are specific statutory provisions under which special audit of accounts of the petitioner company can be conducted by following the due process of law therefore needs to be accepted. Case of the respondents in the affidavit-in-reply that the impugned communication has been issued under the provisions of Section 16 of the CAGs (DPC) Act and that CERA is authorized to extend the audit exercise to the petitioners accounts therefore deserves to be rejected for want of jurisdiction and statutory authority. Case of the respondents that CERA is authorised to conduct the audit of the department and as part of the said audit examination of the records of the private company can be examined to ascertain whether the Government is getting its due share by way of indirect taxes deposited by the private company and therefore private company is bound to provide all records and documents called for by CERA deserves to be rejected looking at the scheme of Chapter III discussed above.23. In view of the above, it is clear that the statutory responsibility of the CAG is to audit receipts of the Union and States. These receipts include both direct and indirect taxes. It is duty of the Central Excise Revenue Audit (CERA) to see that sums due to the Government are properly assessed, realized and credited to the Government account. The scheme enacted and envisaged in Chapter III of the CAGs (DPC) Act, 1971 begins with the word Comptroller or Auditor General to compile accounts of Union and or States. The statutory scheme clearly states that the CAG shall from the accounts compiled by him or by the Government or any person responsible prepare in each year accounts showing under the respective heads, the annual receipts and disbursement for the purpose of the Union, each State or each Union Territory and shall submit the same to the President or the Governor or the Administrator, as the case may be. It is in such context that the provisions of Section 16 pertaining to audit of all receipts which are payable into the Consolidated Fund of India and each State and of each Union Territory is required to be construed with respect to the accounts maintained in the Government departments / Corporations belonging to the Government. In view of the mandate of Section 16 of the CAGS (DPC) Act, 1971, CERA audit cannot be extended to call for audit of a private entity such as the petitioner company | 1 | 9,478 | 2,496 | ### 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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is not a government company 48. It is well settled principle of interpretation that statutory rules must be construed in harmony with the rule making power, in exercise of which, the statutory rule has been made. If it were possible to interpret the statutory rule in more ways than one, the Courts would prefer that interpretation which would make the statutory rule workable and intra vires, to that interpretation which would render the rule ultra vires and invalid. 49. On a plain reading of Rule 5A(2) of the Service Tax Rules, the said Rule does not empower the CAG to audit the accounts of any assessee. While sub-rule (1) of Rule 5A provides for access of any officer authorized by the Commissioner to any premises registered under the Service Tax Rules, for carrying out any scrutiny, verification or check, as may be necessary to safeguard the interest of revenue, sub-rule (2) of Rule 5A only casts an obligation on the assessee to make the records and documents as specified in the said Rule available to the officer authorized by the Commissioner, or the audit party deputed by the Commissioner or the Comptroller and Auditor General of India within a reasonable time not exceeding 15 working days from the date of demand. 20.1. In the above case, Court accepted the statement of the petitioner that Section 16 of the CAGs (DPC) Act does not authorize the CAG or any audit team under the control of CAG to audit the accounts of a non-government company, that too, in the absence of any request either from the President of India or Governor of the State in which the company is having its operation. 21. In a subsequent decision in the case of A.C.L. Education Centre (P) Ltd Vs. Union of India & Ors.5 , a Division Bench of the Allahabad High Court considered the challenge to the vires of Rule 5A(2) of the Service Tax Rules, 1994, inter alia, on the ground that the said rule was contrary to the provisions of Section 72 of the Service Tax Act and rejected the said challenge. However, since in the facts of the said case, inquiry and investigation for special audit was specifically invoked under the provisions of Rule 5A of the Service Tax Rules, 1994 in the case of a private assessee i.e the petitioner therein, the Court in paragraphs 25, 26 and 27 held as under : 25. From the above, it is crystal clear that in case of private assessee, the Commissioner will refer the matter to an officer to collect the material or Chartered Accountant for the purpose of audit. Thus, for the purpose of audit, the material can be collected either by the officer authorized by the Commissioner or by the Auditor himself. But, audit will be performed only by the Chartered Accountant 26.It is pious duty of the assessee to make available the record as mentioned in Rule 5A i.e. trial balance or its equivalent; and the Income-tax audit report, if any, under Section 142(2A) of the Income Tax Act, 1961, for the scrutiny of the officer or the Audit Party, as the case may be. 27.Thus, we find that there is no inconsistency in Rule 5A and Section 72A of the Finance Act, 1994. The said provision is not arbitrary. The manner for conducting the audit is as per the accounting standard provided by the Institute of Chartered Accountant of India. The audit report will be made available to the assessee, as per law. 22. Petitioners submission that there are specific statutory provisions under which special audit of accounts of the petitioner company can be conducted by following the due process of law therefore needs to be accepted. Case of the respondents in the affidavit-in-reply that the impugned communication has been issued under the provisions of Section 16 of the CAGs (DPC) Act and that CERA is authorized to extend the audit exercise to the petitioners accounts therefore deserves to be rejected for want of jurisdiction and statutory authority. Case of the respondents that CERA is authorised to conduct the audit of the department and as part of the said audit examination of the records of the private company can be examined to ascertain whether the Government is getting its due share by way of indirect taxes deposited by the private company and therefore private company is bound to provide all records and documents called for by CERA deserves to be rejected looking at the scheme of Chapter III discussed above. 23. In view of the above, it is clear that the statutory responsibility of the CAG is to audit receipts of the Union and States. These receipts include both direct and indirect taxes. It is duty of the Central Excise Revenue Audit (CERA) to see that sums due to the Government are properly assessed, realized and credited to the Government account. The scheme enacted and envisaged in Chapter III of the CAGs (DPC) Act, 1971 begins with the word Comptroller or Auditor General to compile accounts of Union and or States. The statutory scheme clearly states that the CAG shall from the accounts compiled by him or by the Government or any person responsible prepare in each year accounts showing under the respective heads, the annual receipts and disbursement for the purpose of the Union, each State or each Union Territory and shall submit the same to the President or the Governor or the Administrator, as the case may be. It is in such context that the provisions of Section 16 pertaining to audit of all receipts which are payable into the Consolidated Fund of India and each State and of each Union Territory is required to be construed with respect to the accounts maintained in the Government departments / Corporations belonging to the Government. In view of the mandate of Section 16 of the CAGS (DPC) Act, 1971, CERA audit cannot be extended to call for audit of a private entity such as the petitioner company
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audit team under his control of an assessee which is not a government company48. It is well settled principle of interpretation that statutory rules must be construed in harmony with the rule making power, in exercise of which, the statutory rule has been made. If it were possible to interpret the statutory rule in more ways than one, the Courts would prefer that interpretation which would make the statutory rule workable and intra vires, to that interpretation which would render the rule ultra vires and invalid.49. On a plain reading of Rule 5A(2) of the Service Tax Rules, the said Rule does not empower the CAG to audit the accounts of any assessee. While sub-rule (1) of Rule 5A provides for access of any officer authorized by the Commissioner to any premises registered under the Service Tax Rules, for carrying out any scrutiny, verification or check, as may be necessary to safeguard the interest of revenue, sub-rule (2) of Rule 5A only casts an obligation on the assessee to make the records and documents as specified in the said Rule available to the officer authorized by the Commissioner, or the audit party deputed by the Commissioner or the Comptroller and Auditor General of India within a reasonable time not exceeding 15 working days from the date of demand.20.1. In the above case, Court accepted the statement of the petitioner that Section 16 of the CAGs (DPC) Act does not authorize the CAG or any audit team under the control of CAG to audit the accounts of a non-government company, that too, in the absence of any request either from the President of India or Governor of the State in which the company is having its operation.21. In a subsequent decision in the case of A.C.L. Education Centre (P) Ltd Vs. Union of India & Ors.5 , a Division Bench of the Allahabad High Court considered the challenge to the vires of Rule 5A(2) of the Service Tax Rules, 1994, inter alia, on the ground that the said rule was contrary to the provisions of Section 72 of the Service Tax Act and rejected the said challenge. However, since in the facts of the said case, inquiry and investigation for special audit was specifically invoked under the provisions of Rule 5A of the Service Tax Rules, 1994 in the case of a private assessee i.e the petitioner therein, the Court in paragraphs 25, 26 and 27 held as under :25. From the above, it is crystal clear that in case of private assessee, the Commissioner will refer the matter to an officer to collect the material or Chartered Accountant for the purpose of audit. Thus, for the purpose of audit, the material can be collected either by the officer authorized by the Commissioner or by the Auditor himself. But, audit will be performed only by the Chartered Accountant26.It is pious duty of the assessee to make available the record as mentioned in Rule 5A i.e. trial balance or its equivalent; and the Income-tax audit report, if any, under Section 142(2A) of the Income Tax Act, 1961, for the scrutiny of the officer or the Audit Party, as the case may be.27.Thus, we find that there is no inconsistency in Rule 5A and Section 72A of the Finance Act, 1994. The said provision is not arbitrary. The manner for conducting the audit is as per the accounting standard provided by the Institute of Chartered Accountant of India. The audit report will be made available to the assessee, as per law.22. Petitioners submission that there are specific statutory provisions under which special audit of accounts of the petitioner company can be conducted by following the due process of law therefore needs to be accepted. Case of the respondents in the affidavit-in-reply that the impugned communication has been issued under the provisions of Section 16 of the CAGs (DPC) Act and that CERA is authorized to extend the audit exercise to the petitioners accounts therefore deserves to be rejected for want of jurisdiction and statutory authority. Case of the respondents that CERA is authorised to conduct the audit of the department and as part of the said audit examination of the records of the private company can be examined to ascertain whether the Government is getting its due share by way of indirect taxes deposited by the private company and therefore private company is bound to provide all records and documents called for by CERA deserves to be rejected looking at the scheme of Chapter III discussed above.23. In view of the above, it is clear that the statutory responsibility of the CAG is to audit receipts of the Union and States. These receipts include both direct and indirect taxes. It is duty of the Central Excise Revenue Audit (CERA) to see that sums due to the Government are properly assessed, realized and credited to the Government account. The scheme enacted and envisaged in Chapter III of the CAGs (DPC) Act, 1971 begins with the word Comptroller or Auditor General to compile accounts of Union and or States. The statutory scheme clearly states that the CAG shall from the accounts compiled by him or by the Government or any person responsible prepare in each year accounts showing under the respective heads, the annual receipts and disbursement for the purpose of the Union, each State or each Union Territory and shall submit the same to the President or the Governor or the Administrator, as the case may be. It is in such context that the provisions of Section 16 pertaining to audit of all receipts which are payable into the Consolidated Fund of India and each State and of each Union Territory is required to be construed with respect to the accounts maintained in the Government departments / Corporations belonging to the Government. In view of the mandate of Section 16 of the CAGS (DPC) Act, 1971, CERA audit cannot be extended to call for audit of a private entity such as the petitioner company
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