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P. ISHWARI BAI Vs. ANJANI BAI & ANR | proceeding a party dies and one of the legal representatives is already on the record in another capacity, it is only necessary that he should be described by an appropriate application made in that behalf that he is also on the record, as an heir and legal representative. Even if there are other heirs and legal representatives and no application for impleading them is made within the period of limitation prescribed by the Limitation Act, the proceeding will not abate. 6. As stated earlier, Defendant No.1 is the wife of Defendant No.2, who died during the pendency of this appeal. As the legal representative of the 2 nd Defendant is on record, we propose to hear this Appeal on merits. 7. The Plaintiffs case before the Civil Court is that the suit property which is the house in survey No. 134, Malakpet, Hyderabad was purchased from Defendant No.4. It was averred in the plaint that Defendants No.1 and 2 trespassed on the property in September, 1975. Defendants No. 1 & 2 denied the averments made in the plaint. According to Defendants No.1 & 2, Mrs. Akbarunnissa Begum was the owner of Survey No.108. She sold 490 sq. yards to Mr. B. N. Chowlkar through a registered sale deed dated 26.07.1960. Mr. B. N. Chowlkar sold the plot to Mrs. Pullasetty Maniamma by a registered sale deed dated 21.08.1961. Defendant No.1 purchased the said plot on 18.09.1974 and a registered sale deed was executed in her favour on 03.09.1975. 8. The Trial Court held that Defendant No.4 had title to the said house. The Plaintiff purchased the property from Defendants No.3 and 4. Defendant Nos.1 and 2 were declared to be trespassers. In the appeal filed by Defendants No. 1 and 2, a learned Single Judge of the High Court allowed the application filed under Order XLI Rule 27 and accepted the judgement dated 18.06.1987 in CCCA No.146 of 1979 as additional evidence and marked it as Exhibit B-14. CCCA No.146 of 1979 arose out of a judgment dated 30.12.1978 in O.S. No.22 of 1970 on the file of the Additional Chief Judge, City Civil Court, Hyderabad. The learned Single Judge held that the suit house is not in Plot No.14 forming part of Survey No.134 at Malakpet, Hyderabad but it is part of plot No. 213- A forming part of Survey No. 108 at Malakpet as pleaded by Defendant Nos. 1 & 2. The reasons given by the High Court for such conclusion is that Defendants No.3 and 4, the vendors of the Plaintiff were not examined. The evidence of the son of Defendant No.4 was scrutinised by the learned Single Judge and found him to be unreliable for the following reasons: - a) He did not know the contents of the power of attorney though he executed the sale deed in favour of the Plaintiff as attorney to his father, Defendant No.4. b) He did not have any clue as to when his father made an oral gift of the suit house to Defendant No.3, and c) He did not have any knowledge about the house number of the suit house. 9. On the basis of the findings in an earlier judgement of the civil Court (Exhibit B-8), the learned Single Judge held that the son of Defendant No.4 used to indulge in speculative litigation claiming property worth lakhs of Rupees by filing suit as an indigent person. The evidence of PW-2 and PW-4 were also examined by the learned Single Judge to hold that it was not of much help to the Plaintiff. One strong circumstance, which was noted by the learned Single Judge is Exhibit A-1 in which it was mentioned that Defendant No.4 conveyed the suit premises in favour of Defendant No.3 by way of oral gift but the said recital was found struck off and initialled by Defendant No.3. The relationship, if any between Defendants No.3 and 4 was not proved. The learned Single Judge of the High Court disbelieved the averments of the Plaintiff that Defendant No.4 gifted valuable land measuring 490 sq. yards in Malakpet to Defendant No.3. Finally, the learned Single Judge held that the Plaintiff failed to establish her title over the suit house and possession of the same from 07.11.1974. 10. A Division Bench of the High Court upheld the judgement of the learned Single Judge and held that the suit plot is not forming part of plot in new Survey No.134 corresponding to old Survey No. 107 as pleaded by the Plaintiffs. 11. The main contention of the learned Senior Counsel for the Plaintiff is that the application filed under Order XLI Rule 27 by Defendant Nos. 1 and 2 was wrongly allowed by the learned Single Judge. The application filed under Order XLI Rule 27 by Defendant Nos. 1 and 2 was for placing a judgement of the High Court in CCCA No.146 of 1979 dated 18.06.1987 on record. CCCA No. 146 of 1979 arose out of the judgment dated 30.12.1978 in O.S. No.22 of 1970, which was not a part of the record in the Civil Court. No prejudice is caused to the Plaintiff by the judgment of the Appellate Court in CCCA No. 146 of 1979 being permitted to be adduced as additional evidence in the appeal. 12. We do not find any substance in the submission made by Mr. A.T.M. Rangaramanujam, learned Senior Counsel for the Plaintiff that the High Court committed an error in setting aside the judgement of the Trial Court. We are in agreement with the well-considered judgement of the High Court in which there is a detailed discussion of all the issues. The High Court thoroughly discussed the entire evidence to come to a conclusion that the Plaintiff has not made out any case for declaration of title over the disputed property in her favour. The judgement of the learned Single Judge was upheld by the Division Bench of the High Court on appreciation of the evidence, with which we agree. | 0[ds]12. We do not find any substance in the submission made by Mr. A.T.M. Rangaramanujam, learned Senior Counsel for the Plaintiff that the High Court committed an error in setting aside the judgement of the Trial Court. We are in agreement with the well-considered judgement of the High Court in which there is a detailed discussion of all the issues. The High Court thoroughly discussed the entire evidence to come to a conclusion that the Plaintiff has not made out any case for declaration of title over the disputed property in her favour. The judgement of the learned Single Judge was upheld by the Division Bench of the High Court on appreciation of the evidence, with which we agree. | 0 | 1,634 | 131 | ### Instruction:
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proceeding a party dies and one of the legal representatives is already on the record in another capacity, it is only necessary that he should be described by an appropriate application made in that behalf that he is also on the record, as an heir and legal representative. Even if there are other heirs and legal representatives and no application for impleading them is made within the period of limitation prescribed by the Limitation Act, the proceeding will not abate. 6. As stated earlier, Defendant No.1 is the wife of Defendant No.2, who died during the pendency of this appeal. As the legal representative of the 2 nd Defendant is on record, we propose to hear this Appeal on merits. 7. The Plaintiffs case before the Civil Court is that the suit property which is the house in survey No. 134, Malakpet, Hyderabad was purchased from Defendant No.4. It was averred in the plaint that Defendants No.1 and 2 trespassed on the property in September, 1975. Defendants No. 1 & 2 denied the averments made in the plaint. According to Defendants No.1 & 2, Mrs. Akbarunnissa Begum was the owner of Survey No.108. She sold 490 sq. yards to Mr. B. N. Chowlkar through a registered sale deed dated 26.07.1960. Mr. B. N. Chowlkar sold the plot to Mrs. Pullasetty Maniamma by a registered sale deed dated 21.08.1961. Defendant No.1 purchased the said plot on 18.09.1974 and a registered sale deed was executed in her favour on 03.09.1975. 8. The Trial Court held that Defendant No.4 had title to the said house. The Plaintiff purchased the property from Defendants No.3 and 4. Defendant Nos.1 and 2 were declared to be trespassers. In the appeal filed by Defendants No. 1 and 2, a learned Single Judge of the High Court allowed the application filed under Order XLI Rule 27 and accepted the judgement dated 18.06.1987 in CCCA No.146 of 1979 as additional evidence and marked it as Exhibit B-14. CCCA No.146 of 1979 arose out of a judgment dated 30.12.1978 in O.S. No.22 of 1970 on the file of the Additional Chief Judge, City Civil Court, Hyderabad. The learned Single Judge held that the suit house is not in Plot No.14 forming part of Survey No.134 at Malakpet, Hyderabad but it is part of plot No. 213- A forming part of Survey No. 108 at Malakpet as pleaded by Defendant Nos. 1 & 2. The reasons given by the High Court for such conclusion is that Defendants No.3 and 4, the vendors of the Plaintiff were not examined. The evidence of the son of Defendant No.4 was scrutinised by the learned Single Judge and found him to be unreliable for the following reasons: - a) He did not know the contents of the power of attorney though he executed the sale deed in favour of the Plaintiff as attorney to his father, Defendant No.4. b) He did not have any clue as to when his father made an oral gift of the suit house to Defendant No.3, and c) He did not have any knowledge about the house number of the suit house. 9. On the basis of the findings in an earlier judgement of the civil Court (Exhibit B-8), the learned Single Judge held that the son of Defendant No.4 used to indulge in speculative litigation claiming property worth lakhs of Rupees by filing suit as an indigent person. The evidence of PW-2 and PW-4 were also examined by the learned Single Judge to hold that it was not of much help to the Plaintiff. One strong circumstance, which was noted by the learned Single Judge is Exhibit A-1 in which it was mentioned that Defendant No.4 conveyed the suit premises in favour of Defendant No.3 by way of oral gift but the said recital was found struck off and initialled by Defendant No.3. The relationship, if any between Defendants No.3 and 4 was not proved. The learned Single Judge of the High Court disbelieved the averments of the Plaintiff that Defendant No.4 gifted valuable land measuring 490 sq. yards in Malakpet to Defendant No.3. Finally, the learned Single Judge held that the Plaintiff failed to establish her title over the suit house and possession of the same from 07.11.1974. 10. A Division Bench of the High Court upheld the judgement of the learned Single Judge and held that the suit plot is not forming part of plot in new Survey No.134 corresponding to old Survey No. 107 as pleaded by the Plaintiffs. 11. The main contention of the learned Senior Counsel for the Plaintiff is that the application filed under Order XLI Rule 27 by Defendant Nos. 1 and 2 was wrongly allowed by the learned Single Judge. The application filed under Order XLI Rule 27 by Defendant Nos. 1 and 2 was for placing a judgement of the High Court in CCCA No.146 of 1979 dated 18.06.1987 on record. CCCA No. 146 of 1979 arose out of the judgment dated 30.12.1978 in O.S. No.22 of 1970, which was not a part of the record in the Civil Court. No prejudice is caused to the Plaintiff by the judgment of the Appellate Court in CCCA No. 146 of 1979 being permitted to be adduced as additional evidence in the appeal. 12. We do not find any substance in the submission made by Mr. A.T.M. Rangaramanujam, learned Senior Counsel for the Plaintiff that the High Court committed an error in setting aside the judgement of the Trial Court. We are in agreement with the well-considered judgement of the High Court in which there is a detailed discussion of all the issues. The High Court thoroughly discussed the entire evidence to come to a conclusion that the Plaintiff has not made out any case for declaration of title over the disputed property in her favour. The judgement of the learned Single Judge was upheld by the Division Bench of the High Court on appreciation of the evidence, with which we agree.
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12. We do not find any substance in the submission made by Mr. A.T.M. Rangaramanujam, learned Senior Counsel for the Plaintiff that the High Court committed an error in setting aside the judgement of the Trial Court. We are in agreement with the well-considered judgement of the High Court in which there is a detailed discussion of all the issues. The High Court thoroughly discussed the entire evidence to come to a conclusion that the Plaintiff has not made out any case for declaration of title over the disputed property in her favour. The judgement of the learned Single Judge was upheld by the Division Bench of the High Court on appreciation of the evidence, with which we agree.
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National Insurance Co. Ltd Vs. Reena Devi | 1. Leave granted. 2. These appeals are directed against the common judgment and order passed by the High Court of Judicature of Himachal Pradesh in FAO(MVA) Nos, 404, 405, 406, 407, 408, 409, 410, 411, 412, 413, 414, 415, 416, 417, 418, 419, 420, 421, 425, of 2001 and 140, 141, 142, 143, 144, 145, 146, 147, 148, 149, 150, 151, 152, 153, 154 of 2002 and 453 of 2003, dated 10.9.04. By the impugned judgment and order, the high court has directed the petitioner to pay compensation to the respondents herein who were injured and also to the legal representatives of the deceased passengers.3. The facts in brief are:- The incident occurred on 18.7.1999 when the bus belonging to Sh.Jai Prakash, the owner of the vehicle, started its journey from shillai for Bali Koti. En route to Bali Koti, the said bus while negotiating the curve went out of the road and rolled down in the khud. Thereafter, the bus trampled down several persons on the road as well as on the pathway beneath the road thereby taking lives of several persons while others received multiple injuries. 4. We have heard Shri Vishnu Mehra, learned counsel for the Insurance Company and Shri Kartar Singh, learned counsel for the respondent(s).5. Shri Mehra, learned counsel, would submit that since the bus in question was carrying more passengers than the permitted capacity, the Insurance Company is not liable to pay to the persons who expired in the accident and also to those persons who sustained injuries. In support of that submission, the learned counsel invites our attention to the observations made by this Court in the case of National Insurance Co. Ltd. Vs. Anjana Shyam & Ors. reported in 2007(7) SCC 445.6. In reply to the submissions so made by Shri Mehra, the learned counsel appearing for the respondent(s) would bring to our notice, the issues raised by the Motor Accident Claims Tribunal (the Tribunal for short) and the conclusions reached thereon in particular, to the fourth issue that was raised and considered by the Tribunal. 7. The Tribunal, while coming to the conclusion that the bus in question was not over-loaded by more than its permitted capacity, has observed at paragraphs 13,14 and 15, as under : “13. Shri A.S.Shah, Advocate, the learned counsel for the owner and driver of the bus has argued that in all 51 claim petitions have been filed suggesting that the total number of injured and dead persons is not more than 51. He has further argued that the number of injured and the dead persons is also inclusive of the persons, who were not in the vehicle because it is in the reply of the Insurance Co. in para-22 or para-24 of the different petitions that the deceased was not travelling in the ill-fated bus. These averments in the reply suggests that some of the persons suffered injuries because at the relevant time, they were not in the bus. Moreover, as per para No.1 of the reply of the Insurance Co., the information of over-loading was received by th Insurance Co. after going through the newspaper or the inquiry report of the SDM, which are not admissible in evidence. The report of the SDM cannot be treated as reliable evidence as it is based on hearsay evidence and conducted at the back of the petitioners. According to the report, about 18 persons were examined. The Insurance Co. should have examined some of these persons in evidence to prove that actually there was over-loading in the bus.14. The petitioners examined many witnesses of whom PW 4 Jeet Singh and PW 5 Hari Singh are the persons who witnessed the accident in question. Their statements do not suggest that there was any over-loading in the bus. The cross-examination of PW 5 Hari Singh made by respondent no.1 and 2 further proves that few persons, who were walking on the road below the road where the bus fell down were also run over by the bus when it fell down. He has denied that more than 100 persons were there in the ill-fated bus.15. The above discussion of evidence suggests that it cannot be said that at the relevant time there was over-loading in the bus. Moreover only because o over-loading, it cannot be said that there is any breach of conditions of the permit. A reference in this regard may be made to the law laid down by the Honble Supreme Court in case State of Maharashtra and Others Vs. Nanded-Parbhani Z.L.B.M.V.Operator Sangh, reported in (200-2) 125 Punjab Law Reporter 558, wherein at page 561 in para-8 following proposition of law has been laid down :-“...But carrying passengers more than the number of specified in the permit will not be a violation of the purpose for which the permit is granted. If the legislature really wanted to confer power of detention on the police officer for violation of any condition of the permit, then there would not have been the necessity of adding the expression “relating to the route on which or the area in which or the purpose for which the vehicle may be used....”” 8. This finding of the Tribunal though raised before the High Court, the High Court, for the reasons best known to it has not answered the same.9. One thing is certain and clear to us, in view of the finding of fact reached by the Tribunal that the bus in question on the date of the incident was not carrying passengers more than the permitted capacity. It is also the finding of the Tribunal that apart from the persons who were travelling in the bus, the persons walking on the road were also involved in the accident. If that is so, the Tribunal is justified in directing the Insurance Company to compensate all those persons who died in the accident and also those who sustained injuries. | 0[ds]15. The above discussion of evidence suggests that it cannot be said that at the relevant time there wasin the bus. Moreover only because oit cannot be said that there is any breach of conditions of the permit. A reference in this regard may be made to the law laid down by the Honble Supreme Court in case State of Maharashtra and Others Vs.Z.L.B.M.V.Operator Sangh, reported in125 Punjab Law Reporter 558, wherein at page 561 infollowing proposition of law has been laid downcarrying passengers more than the number of specified in the permit will not be a violation of the purpose for which the permit is granted. If the legislature really wanted to confer power of detention on the police officer for violation of any condition of the permit, then there would not have been the necessity of adding the expressionto the route on which or the area in which or the purpose for which the vehicle may be used....This finding of the Tribunal though raised before the High Court, the High Court, for the reasons best known to it has not answered the same.9. One thing is certain and clear to us, in view of the finding of fact reached by the Tribunal that the bus in question on the date of the incident was not carrying passengers more than the permitted capacity. It is also the finding of the Tribunal that apart from the persons who were travelling in the bus, the persons walking on the road were also involved in the accident. If that is so, the Tribunal is justified in directing the Insurance Company to compensate all those persons who died in the accident and also those who sustained injuries. | 0 | 1,122 | 308 | ### 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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1. Leave granted. 2. These appeals are directed against the common judgment and order passed by the High Court of Judicature of Himachal Pradesh in FAO(MVA) Nos, 404, 405, 406, 407, 408, 409, 410, 411, 412, 413, 414, 415, 416, 417, 418, 419, 420, 421, 425, of 2001 and 140, 141, 142, 143, 144, 145, 146, 147, 148, 149, 150, 151, 152, 153, 154 of 2002 and 453 of 2003, dated 10.9.04. By the impugned judgment and order, the high court has directed the petitioner to pay compensation to the respondents herein who were injured and also to the legal representatives of the deceased passengers.3. The facts in brief are:- The incident occurred on 18.7.1999 when the bus belonging to Sh.Jai Prakash, the owner of the vehicle, started its journey from shillai for Bali Koti. En route to Bali Koti, the said bus while negotiating the curve went out of the road and rolled down in the khud. Thereafter, the bus trampled down several persons on the road as well as on the pathway beneath the road thereby taking lives of several persons while others received multiple injuries. 4. We have heard Shri Vishnu Mehra, learned counsel for the Insurance Company and Shri Kartar Singh, learned counsel for the respondent(s).5. Shri Mehra, learned counsel, would submit that since the bus in question was carrying more passengers than the permitted capacity, the Insurance Company is not liable to pay to the persons who expired in the accident and also to those persons who sustained injuries. In support of that submission, the learned counsel invites our attention to the observations made by this Court in the case of National Insurance Co. Ltd. Vs. Anjana Shyam & Ors. reported in 2007(7) SCC 445.6. In reply to the submissions so made by Shri Mehra, the learned counsel appearing for the respondent(s) would bring to our notice, the issues raised by the Motor Accident Claims Tribunal (the Tribunal for short) and the conclusions reached thereon in particular, to the fourth issue that was raised and considered by the Tribunal. 7. The Tribunal, while coming to the conclusion that the bus in question was not over-loaded by more than its permitted capacity, has observed at paragraphs 13,14 and 15, as under : “13. Shri A.S.Shah, Advocate, the learned counsel for the owner and driver of the bus has argued that in all 51 claim petitions have been filed suggesting that the total number of injured and dead persons is not more than 51. He has further argued that the number of injured and the dead persons is also inclusive of the persons, who were not in the vehicle because it is in the reply of the Insurance Co. in para-22 or para-24 of the different petitions that the deceased was not travelling in the ill-fated bus. These averments in the reply suggests that some of the persons suffered injuries because at the relevant time, they were not in the bus. Moreover, as per para No.1 of the reply of the Insurance Co., the information of over-loading was received by th Insurance Co. after going through the newspaper or the inquiry report of the SDM, which are not admissible in evidence. The report of the SDM cannot be treated as reliable evidence as it is based on hearsay evidence and conducted at the back of the petitioners. According to the report, about 18 persons were examined. The Insurance Co. should have examined some of these persons in evidence to prove that actually there was over-loading in the bus.14. The petitioners examined many witnesses of whom PW 4 Jeet Singh and PW 5 Hari Singh are the persons who witnessed the accident in question. Their statements do not suggest that there was any over-loading in the bus. The cross-examination of PW 5 Hari Singh made by respondent no.1 and 2 further proves that few persons, who were walking on the road below the road where the bus fell down were also run over by the bus when it fell down. He has denied that more than 100 persons were there in the ill-fated bus.15. The above discussion of evidence suggests that it cannot be said that at the relevant time there was over-loading in the bus. Moreover only because o over-loading, it cannot be said that there is any breach of conditions of the permit. A reference in this regard may be made to the law laid down by the Honble Supreme Court in case State of Maharashtra and Others Vs. Nanded-Parbhani Z.L.B.M.V.Operator Sangh, reported in (200-2) 125 Punjab Law Reporter 558, wherein at page 561 in para-8 following proposition of law has been laid down :-“...But carrying passengers more than the number of specified in the permit will not be a violation of the purpose for which the permit is granted. If the legislature really wanted to confer power of detention on the police officer for violation of any condition of the permit, then there would not have been the necessity of adding the expression “relating to the route on which or the area in which or the purpose for which the vehicle may be used....”” 8. This finding of the Tribunal though raised before the High Court, the High Court, for the reasons best known to it has not answered the same.9. One thing is certain and clear to us, in view of the finding of fact reached by the Tribunal that the bus in question on the date of the incident was not carrying passengers more than the permitted capacity. It is also the finding of the Tribunal that apart from the persons who were travelling in the bus, the persons walking on the road were also involved in the accident. If that is so, the Tribunal is justified in directing the Insurance Company to compensate all those persons who died in the accident and also those who sustained injuries.
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0
### Explanation:
15. The above discussion of evidence suggests that it cannot be said that at the relevant time there wasin the bus. Moreover only because oit cannot be said that there is any breach of conditions of the permit. A reference in this regard may be made to the law laid down by the Honble Supreme Court in case State of Maharashtra and Others Vs.Z.L.B.M.V.Operator Sangh, reported in125 Punjab Law Reporter 558, wherein at page 561 infollowing proposition of law has been laid downcarrying passengers more than the number of specified in the permit will not be a violation of the purpose for which the permit is granted. If the legislature really wanted to confer power of detention on the police officer for violation of any condition of the permit, then there would not have been the necessity of adding the expressionto the route on which or the area in which or the purpose for which the vehicle may be used....This finding of the Tribunal though raised before the High Court, the High Court, for the reasons best known to it has not answered the same.9. One thing is certain and clear to us, in view of the finding of fact reached by the Tribunal that the bus in question on the date of the incident was not carrying passengers more than the permitted capacity. It is also the finding of the Tribunal that apart from the persons who were travelling in the bus, the persons walking on the road were also involved in the accident. If that is so, the Tribunal is justified in directing the Insurance Company to compensate all those persons who died in the accident and also those who sustained injuries.
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Krishna Lal Dutta Vs. The State Of West Bengal | that under Section 11 of the Maintenance of Internal Security Act, 1971 (Act 26 of 1971), the Advisory Board shall if you desire to be so heard, hear you in person, and, if you desire to be heard by the Advisory Board, you shall intimate such desire in your representation to the State Government".3. An annexure to the affidavit filed by a Special Secretary in the Home Department of the Govt. of West Bengal, who was the District Magistrate concerned when the impugned detention order was made against the petitioner, is copy of the petitioners representation addressed to the Government. In the representation as well as in the petition before us, the petitioner asserts that the allegations against him are absolutely antrue. In his application to this Court he state that it is "palpably false and impracticable" to allege that the petitioner, with some associates, committed theft of some tea chests from a running wagon and that he fled when challenged, leaving behind three chests of tea "at the P. O." Be that as it may, it is difficult to understand what is meant by "the P. O." In his representation to the Government, the petitioner had submitted that there was no evidence that he was identified by anybody as a participator in the incident.4. In the affidavit in opposition to the petition, the official concerned, who had passed the detention order, stated:"The running goods train as stated therein actually means a goods train which had come to a stop due to traffic restriction and not actually a running one as sought to be suggested by the petitioner".The affidavit also contained the statement:"It appears from the records that the petitioner is a notorious wagon breaker operating near Dum Dum Junction Railway Station".5. Learned Counsel appearing for the State of West Bengal was asked to explain how the petitioner could possibly make an effective representation against his detention when the District Magistrate concerned had a stationery train in mind which he actually described as "a running goods train" in the grounds of detention, when it was not indicated what was meant by "the P. O., and when the allegation that the petitioner was a "notorious wagon breaker operating near Dum Dum Junction Railway Station" was never communicated to him although it, apparently, formed one of the grounds on which the detention was ordered.In reply, learned Counsel for the State of West Bengal stated that he had the whole record before him on which the detention was ordered and he placed that record before us. We were unable to find any mention in this record that the petitioner was "a notorious wagon breaker". On the other hand, we found a description there of the modus operandi of a gang of thieves operating on passenger trains which used to deprive the passengers of their trunks and other goods while one of the members of the gang sat near the passengers with a newspaper spread out in front of him which would be read out loudly to district their attention and used also to obstruct their view. It is mentioned there that the activities of this gang commenced after the incident of 11-10-1972. It is also mentioned there that a number of incriminating articles were recovered from members of this gang thieves including the petitioner and that prosecutions were pending against them.6. It is true that the incident which occurred at about 2 a. m. on 11-10-1972, forming the ground of detention, is also mentioned in the record, but there is no indication as to how any information whatsoever came to the District Magistrate from any source whatsoever that the petitioner was a member of the gang which was concerned with such an incident. Presumably, this was the whole record as learned Counsel for the State informed us. This makes petitioners assertion, that he was not only arrested on 20-10-1972 for reasons not disclosed to him, but, when sufficient evidence could not be found against him by the local officials, a detention order was made on a ground, covered by the Act, which could be conveniently trotted out at the time, seem plausible. Deprivation of a citizens personal liberty is a serious matter. Those exercising drastic powers of preventive detention, which are entrusted to them for protecting valuable social and public interests, should at least take care to ascertain whether a detention is being ordered in a manner and on materials which disclose that it is really "necessary" to order a detention with a view to preventing the person to be detained from acting in any manner prejudicial to the objects for which preventive detention may be lawfully ordered. If they misuse these powers, by acting unreasonably, capriciously, arbitrarily, or in a mala fide manner, public confidence in them is shaken. We are unable to say whether the District Magistrate acted unreasonable in making the detention order. But, presuming that, whatever was in the record operated, as learned Counsel for the State asserted, against the petitioner, he should have been fuller information of allegation against him. It is not explained why this was not done.7. We are not concerned herewith the adequacy or sufficiency of a ground of detention. There is clearly a nexus between the sole ground for detention given and the maintenance of essential supplies and services. But, as indicated above, we have found that matters which were never communicated to the petitioner also appear to have been taken into account while ordering the detention of the petitioner. Furthermore, the sole ground of detention is vague in so far as it is not apparent what is meant by the words "the P. O." Recently, it was held by this Court in Prabhu Dayal Deorah v. District Magistrate, Kamrup, AIR 1974 SC 183 = (1974 Cri LJ 286), that vagueness of a single ground could vitiate a detention order. The ground given could not, in our opinion enable the petitioner to effectively exercise his constitutional right of making a representation against his detention. | 1[ds]We were unable to find any mention in this record that the petitioner was "a notorious wagon breaker". On the other hand, we found a description there of the modus operandi of a gang of thieves operating on passenger trains which used to deprive the passengers of their trunks and other goods while one of the members of the gang sat near the passengers with a newspaper spread out in front of him which would be read out loudly to district their attention and used also to obstruct their view. It is mentioned there that the activities of this gang commenced after the incident ofIt is also mentioned there that a number of incriminating articles were recovered from members of this gang thieves including the petitioner and that prosecutions were pending against them.6. It is true that the incident which occurred at about 2 a. m. onforming the ground of detention, is also mentioned in the record, but there is no indication as to how any information whatsoever came to the District Magistrate from any source whatsoever that the petitioner was a member of the gang which was concerned with such an incident. Presumably, this was the whole record as learned Counsel for the State informed us. This makes petitioners assertion, that he was not only arrested onfor reasons not disclosed to him, but, when sufficient evidence could not be found against him by the local officials, a detention order was made on a ground, covered by the Act, which could be conveniently trotted out at the time, seem plausible. Deprivation of a citizens personal liberty is a serious matter. Those exercising drastic powers of preventive detention, which are entrusted to them for protecting valuable social and public interests, should at least take care to ascertain whether a detention is being ordered in a manner and on materials which disclose that it is really "necessary" to order a detention with a view to preventing the person to be detained from acting in any manner prejudicial to the objects for which preventive detention may be lawfully ordered. If they misuse these powers, by acting unreasonably, capriciously, arbitrarily, or in a mala fide manner, public confidence in them is shaken. We are unable to say whether the District Magistrate acted unreasonable in making the detention order. But, presuming that, whatever was in the record operated, as learned Counsel for the State asserted, against the petitioner, he should have been fuller information of allegation against him. It is not explained why this was not done.7. We are not concerned herewith the adequacy or sufficiency of a ground of detention. There is clearly a nexus between the sole ground for detention given and the maintenance of essential supplies and services. But, as indicated above, we have found that matters which were never communicated to the petitioner also appear to have been taken into account while ordering the detention of the petitioner. Furthermore, the sole ground of detention is vague in so far as it is not apparent what is meant by the words "the P. O." Recently, it was held by this Court in Prabhu Dayal Deorah v. District Magistrate, Kamrup, AIR 1974 SC 183 = (1974 Cri LJ 286), that vagueness of a single ground could vitiate a detention order. The ground given could not, in our opinion enable the petitioner to effectively exercise his constitutional right of making a representation against his detention. | 1 | 1,494 | 633 | ### Instruction:
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that under Section 11 of the Maintenance of Internal Security Act, 1971 (Act 26 of 1971), the Advisory Board shall if you desire to be so heard, hear you in person, and, if you desire to be heard by the Advisory Board, you shall intimate such desire in your representation to the State Government".3. An annexure to the affidavit filed by a Special Secretary in the Home Department of the Govt. of West Bengal, who was the District Magistrate concerned when the impugned detention order was made against the petitioner, is copy of the petitioners representation addressed to the Government. In the representation as well as in the petition before us, the petitioner asserts that the allegations against him are absolutely antrue. In his application to this Court he state that it is "palpably false and impracticable" to allege that the petitioner, with some associates, committed theft of some tea chests from a running wagon and that he fled when challenged, leaving behind three chests of tea "at the P. O." Be that as it may, it is difficult to understand what is meant by "the P. O." In his representation to the Government, the petitioner had submitted that there was no evidence that he was identified by anybody as a participator in the incident.4. In the affidavit in opposition to the petition, the official concerned, who had passed the detention order, stated:"The running goods train as stated therein actually means a goods train which had come to a stop due to traffic restriction and not actually a running one as sought to be suggested by the petitioner".The affidavit also contained the statement:"It appears from the records that the petitioner is a notorious wagon breaker operating near Dum Dum Junction Railway Station".5. Learned Counsel appearing for the State of West Bengal was asked to explain how the petitioner could possibly make an effective representation against his detention when the District Magistrate concerned had a stationery train in mind which he actually described as "a running goods train" in the grounds of detention, when it was not indicated what was meant by "the P. O., and when the allegation that the petitioner was a "notorious wagon breaker operating near Dum Dum Junction Railway Station" was never communicated to him although it, apparently, formed one of the grounds on which the detention was ordered.In reply, learned Counsel for the State of West Bengal stated that he had the whole record before him on which the detention was ordered and he placed that record before us. We were unable to find any mention in this record that the petitioner was "a notorious wagon breaker". On the other hand, we found a description there of the modus operandi of a gang of thieves operating on passenger trains which used to deprive the passengers of their trunks and other goods while one of the members of the gang sat near the passengers with a newspaper spread out in front of him which would be read out loudly to district their attention and used also to obstruct their view. It is mentioned there that the activities of this gang commenced after the incident of 11-10-1972. It is also mentioned there that a number of incriminating articles were recovered from members of this gang thieves including the petitioner and that prosecutions were pending against them.6. It is true that the incident which occurred at about 2 a. m. on 11-10-1972, forming the ground of detention, is also mentioned in the record, but there is no indication as to how any information whatsoever came to the District Magistrate from any source whatsoever that the petitioner was a member of the gang which was concerned with such an incident. Presumably, this was the whole record as learned Counsel for the State informed us. This makes petitioners assertion, that he was not only arrested on 20-10-1972 for reasons not disclosed to him, but, when sufficient evidence could not be found against him by the local officials, a detention order was made on a ground, covered by the Act, which could be conveniently trotted out at the time, seem plausible. Deprivation of a citizens personal liberty is a serious matter. Those exercising drastic powers of preventive detention, which are entrusted to them for protecting valuable social and public interests, should at least take care to ascertain whether a detention is being ordered in a manner and on materials which disclose that it is really "necessary" to order a detention with a view to preventing the person to be detained from acting in any manner prejudicial to the objects for which preventive detention may be lawfully ordered. If they misuse these powers, by acting unreasonably, capriciously, arbitrarily, or in a mala fide manner, public confidence in them is shaken. We are unable to say whether the District Magistrate acted unreasonable in making the detention order. But, presuming that, whatever was in the record operated, as learned Counsel for the State asserted, against the petitioner, he should have been fuller information of allegation against him. It is not explained why this was not done.7. We are not concerned herewith the adequacy or sufficiency of a ground of detention. There is clearly a nexus between the sole ground for detention given and the maintenance of essential supplies and services. But, as indicated above, we have found that matters which were never communicated to the petitioner also appear to have been taken into account while ordering the detention of the petitioner. Furthermore, the sole ground of detention is vague in so far as it is not apparent what is meant by the words "the P. O." Recently, it was held by this Court in Prabhu Dayal Deorah v. District Magistrate, Kamrup, AIR 1974 SC 183 = (1974 Cri LJ 286), that vagueness of a single ground could vitiate a detention order. The ground given could not, in our opinion enable the petitioner to effectively exercise his constitutional right of making a representation against his detention.
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We were unable to find any mention in this record that the petitioner was "a notorious wagon breaker". On the other hand, we found a description there of the modus operandi of a gang of thieves operating on passenger trains which used to deprive the passengers of their trunks and other goods while one of the members of the gang sat near the passengers with a newspaper spread out in front of him which would be read out loudly to district their attention and used also to obstruct their view. It is mentioned there that the activities of this gang commenced after the incident ofIt is also mentioned there that a number of incriminating articles were recovered from members of this gang thieves including the petitioner and that prosecutions were pending against them.6. It is true that the incident which occurred at about 2 a. m. onforming the ground of detention, is also mentioned in the record, but there is no indication as to how any information whatsoever came to the District Magistrate from any source whatsoever that the petitioner was a member of the gang which was concerned with such an incident. Presumably, this was the whole record as learned Counsel for the State informed us. This makes petitioners assertion, that he was not only arrested onfor reasons not disclosed to him, but, when sufficient evidence could not be found against him by the local officials, a detention order was made on a ground, covered by the Act, which could be conveniently trotted out at the time, seem plausible. Deprivation of a citizens personal liberty is a serious matter. Those exercising drastic powers of preventive detention, which are entrusted to them for protecting valuable social and public interests, should at least take care to ascertain whether a detention is being ordered in a manner and on materials which disclose that it is really "necessary" to order a detention with a view to preventing the person to be detained from acting in any manner prejudicial to the objects for which preventive detention may be lawfully ordered. If they misuse these powers, by acting unreasonably, capriciously, arbitrarily, or in a mala fide manner, public confidence in them is shaken. We are unable to say whether the District Magistrate acted unreasonable in making the detention order. But, presuming that, whatever was in the record operated, as learned Counsel for the State asserted, against the petitioner, he should have been fuller information of allegation against him. It is not explained why this was not done.7. We are not concerned herewith the adequacy or sufficiency of a ground of detention. There is clearly a nexus between the sole ground for detention given and the maintenance of essential supplies and services. But, as indicated above, we have found that matters which were never communicated to the petitioner also appear to have been taken into account while ordering the detention of the petitioner. Furthermore, the sole ground of detention is vague in so far as it is not apparent what is meant by the words "the P. O." Recently, it was held by this Court in Prabhu Dayal Deorah v. District Magistrate, Kamrup, AIR 1974 SC 183 = (1974 Cri LJ 286), that vagueness of a single ground could vitiate a detention order. The ground given could not, in our opinion enable the petitioner to effectively exercise his constitutional right of making a representation against his detention.
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M. D. Shukla & Ors Vs. State Of Gujarat & Ors | was and must remain purely provisional until final integration is made by the Central Government. It is common ground that no such final integration had been made by the Central Government.14. Two grounds appealed to the High Court in deciding the case against the appellants: (1) that the appellants were transferred to the Secretariat of the State of Gujarat, but they were not absorbed in the ministerial service of the Secretariat of the State of Gujarat. In the view of the High Court there was nearly (sic) "regularisation" of the appointment of those persons for the purpose of performing service in the Secretariat; and (2) that the order dated August 19, 1966 was contrary to the Recruitment Rules. 1957.15. If it be granted that the State was competent to transfer and did transfer the appellants to perform service in connection with the affairs of the State in the Secretariat, it is difficult to hold that when the State "regularised" the service of the appellants in the Secretariat with the consent of the Public Service Commission there was no absorption under the Absorption Rules. It is true that the expression "absorption" has not been used in the order, but that will not justify an inference that there was no intention to absorb the former Saurashtra and Kutch States personnel in the Secretariat. In the absence of determination of equivalent posts under the orders of the Central Government, the State of Gujarat was competent, as a matter of provisional arrangement to absorb the former Saurashtra and Kutch States personnel in the ministerial establishment of the Gujarat State Secretariat. In terms the order says that the persons named therein "should be treated to have been regularly appointed in the posts shown against their names in column 4 of the statement" appended to the order. That, in our judgment amounted to absorption.16. Original Rule 138 of the Bombay Civil Services Classification and Recruitment Rules, 1939, was deleted, and the following rule was substituted on May 22, 1957. The relevant part of the rule reads:"138. The ministerial staff in the Secretariat and attached offices is divided into two Divisions.(a) Upper; and (b) Lower.(i) Superintendents: Appointments shall be made by promotion from among Senior Assistants.(ii) Senior Assistants: Appointments shall be made by promotion from among Junior Assistants.(iii) Junior Assistants: Appointments shall be made either:-(a) by nomination on the results of a competitive examination held by the Bombay Public Service Commission, or(b) by promotion from among members of the Lower Division.Provided that not more than one out of every four vacancies in the posts of Junior Assistants shall ordinarily be filled by promotion.(2) To be eligible for appointment by nomination a candidate must:-(i) hold a degree in Arts, Law Science, Agriculture or Commerce of a recognised University or possess an equivalent qualification;(ii) have attained the age of 18 years; and(iii) not have attained the age of 30 years in the case of members of the Lower Division appointed on the recommendation of the commission and who have graduated while in service and in any other case 24 years on the first day of the month immediately following month in which the posts are advertised by the Commission.B. Lower Division(b) Clerks, clerk-typists, typists: Appointments shall be made by nomination on the results of a competitive examination held by the Commission. :Provided that suitable members of Class IV services who while in that service, have passed the Secondary School Certificate Examination or an examination recognised by Government as equivalent to that examination, shall be eligible for appointment to the posts of clerks by promotion(2) To be eligible for appointment by nomination, a candidate must:-(i) have passed the secondary school certificate examination or an examination recognised by Government as equivalent to that examination:(ii) have attained the age of 18 years, and(iii) not have attained the age of 23 years on the first day of the month immediately following the month in which the posts are advertised by the Commission.A candidate for the Post of clerk-typist or typist must, also be able to type neatly accurately at a minimum speed of 40 words Per minute.* * * *"17. The High Court held that recruitment to the ministerial staff in the Secretariat could only be by nomination or by promotion from among members of the Lower Division, nomination being on the result of a competitive examination held by the Public Service Commission and promotion being from the subordinate staff. In view of this rule, according to the High Court, it was not open to the State Government to adopt any other method of recruitment of the members of the ministerial staff.18. Counsel for the appellants contended that Rule 138 only dealt with the existing servants and did not prevent any additional members from being amalgamated in the ministerial staff in the Secretariat. He also contended that the recruitment did not amount to admission of an officer for the first time in the service It is unnecessary for the purpose of this appeal to consider these arguments. Assuming that Rule 138 requires the State to follow a certain method for recruitment to the ministerial service, that rule made under Article 309 of the Constitution cannot take away the statutory right vested in the personnel of the former Saurashtra and Kutch States which they acquired under the States Reorganisation Act, 1956, to hold posts in the new State which were equivalent and on terms which were not, unless the previous approval of the Central Government was obtained, disadvantageous. Since the arrangement which is made by the Government of the State of Gujarat must be regarded as provisional and to enure so long as the Central Government does not make a final decision it is not open to the officers of the Secretariat to challenge the authority of the Government of Gujarat either to transfer officers from the Districts and to post and assign them duties in the Secretariat or to fix their pay and seniority among the officers in the Secretariat performing ministerial duties. | 1[ds]13. It was conceded, and rightly, that the State has the authority to transfer, subject to the Constitution and the rules made under Article 309, any public servant to render service which by his training and aptitude he was competent to do. Transfer of the personnel from the States of Saurashtra and Kutch to the Secretariat in the State of Gujarat and assignment of duties performable by the ministerial staff in the Secretariat cannot be challenged, and that because they were posted between 1956 and 1960 in the Districts they will not be deprived of their statutory right under Section 115 (7) proviso. Posting in the districts was and must remain purely provisional until final integration is made by the Central Government. It is common ground that no such final integration had been made by the Central Government.The High Court held that recruitment to the ministerial staff in the Secretariat could only be by nomination or by promotion from among members of the Lower Division, nomination being on the result of a competitive examination held by the Public Service Commission and promotion being from the subordinate staff. In view of this rule, according to the High Court, it was not open to the State Government to adopt any other method of recruitment of the members of the ministerial staff.18. Counsel for the appellants contended that Rule 138 only dealt with the existing servants and did not prevent any additional members from being amalgamated in the ministerial staff in the Secretariat. He also contended that the recruitment did not amount to admission of an officer for the first time in the service It is unnecessary for the purpose of this appeal to consider these arguments. Assuming that Rule 138 requires the State to follow a certain method for recruitment to the ministerial service, that rule made under Article 309 of the Constitution cannot take away the statutory right vested in the personnel of the former Saurashtra and Kutch States which they acquired underthe States Reorganisation Act, 1956, to hold posts in the new State which were equivalent and on terms which were not, unless the previous approval of the Central Government was obtained, disadvantageous. Since the arrangement which is made by the Government of the State of Gujarat must be regarded as provisional and to enure so long as the Central Government does not make a final decision it is not open to the officers of the Secretariat to challenge the authority of the Government of Gujarat either to transfer officers from the Districts and to post and assign them duties in the Secretariat or to fix their pay and seniority among the officers in the Secretariat performing ministerial duties. | 1 | 3,245 | 480 | ### Instruction:
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was and must remain purely provisional until final integration is made by the Central Government. It is common ground that no such final integration had been made by the Central Government.14. Two grounds appealed to the High Court in deciding the case against the appellants: (1) that the appellants were transferred to the Secretariat of the State of Gujarat, but they were not absorbed in the ministerial service of the Secretariat of the State of Gujarat. In the view of the High Court there was nearly (sic) "regularisation" of the appointment of those persons for the purpose of performing service in the Secretariat; and (2) that the order dated August 19, 1966 was contrary to the Recruitment Rules. 1957.15. If it be granted that the State was competent to transfer and did transfer the appellants to perform service in connection with the affairs of the State in the Secretariat, it is difficult to hold that when the State "regularised" the service of the appellants in the Secretariat with the consent of the Public Service Commission there was no absorption under the Absorption Rules. It is true that the expression "absorption" has not been used in the order, but that will not justify an inference that there was no intention to absorb the former Saurashtra and Kutch States personnel in the Secretariat. In the absence of determination of equivalent posts under the orders of the Central Government, the State of Gujarat was competent, as a matter of provisional arrangement to absorb the former Saurashtra and Kutch States personnel in the ministerial establishment of the Gujarat State Secretariat. In terms the order says that the persons named therein "should be treated to have been regularly appointed in the posts shown against their names in column 4 of the statement" appended to the order. That, in our judgment amounted to absorption.16. Original Rule 138 of the Bombay Civil Services Classification and Recruitment Rules, 1939, was deleted, and the following rule was substituted on May 22, 1957. The relevant part of the rule reads:"138. The ministerial staff in the Secretariat and attached offices is divided into two Divisions.(a) Upper; and (b) Lower.(i) Superintendents: Appointments shall be made by promotion from among Senior Assistants.(ii) Senior Assistants: Appointments shall be made by promotion from among Junior Assistants.(iii) Junior Assistants: Appointments shall be made either:-(a) by nomination on the results of a competitive examination held by the Bombay Public Service Commission, or(b) by promotion from among members of the Lower Division.Provided that not more than one out of every four vacancies in the posts of Junior Assistants shall ordinarily be filled by promotion.(2) To be eligible for appointment by nomination a candidate must:-(i) hold a degree in Arts, Law Science, Agriculture or Commerce of a recognised University or possess an equivalent qualification;(ii) have attained the age of 18 years; and(iii) not have attained the age of 30 years in the case of members of the Lower Division appointed on the recommendation of the commission and who have graduated while in service and in any other case 24 years on the first day of the month immediately following month in which the posts are advertised by the Commission.B. Lower Division(b) Clerks, clerk-typists, typists: Appointments shall be made by nomination on the results of a competitive examination held by the Commission. :Provided that suitable members of Class IV services who while in that service, have passed the Secondary School Certificate Examination or an examination recognised by Government as equivalent to that examination, shall be eligible for appointment to the posts of clerks by promotion(2) To be eligible for appointment by nomination, a candidate must:-(i) have passed the secondary school certificate examination or an examination recognised by Government as equivalent to that examination:(ii) have attained the age of 18 years, and(iii) not have attained the age of 23 years on the first day of the month immediately following the month in which the posts are advertised by the Commission.A candidate for the Post of clerk-typist or typist must, also be able to type neatly accurately at a minimum speed of 40 words Per minute.* * * *"17. The High Court held that recruitment to the ministerial staff in the Secretariat could only be by nomination or by promotion from among members of the Lower Division, nomination being on the result of a competitive examination held by the Public Service Commission and promotion being from the subordinate staff. In view of this rule, according to the High Court, it was not open to the State Government to adopt any other method of recruitment of the members of the ministerial staff.18. Counsel for the appellants contended that Rule 138 only dealt with the existing servants and did not prevent any additional members from being amalgamated in the ministerial staff in the Secretariat. He also contended that the recruitment did not amount to admission of an officer for the first time in the service It is unnecessary for the purpose of this appeal to consider these arguments. Assuming that Rule 138 requires the State to follow a certain method for recruitment to the ministerial service, that rule made under Article 309 of the Constitution cannot take away the statutory right vested in the personnel of the former Saurashtra and Kutch States which they acquired under the States Reorganisation Act, 1956, to hold posts in the new State which were equivalent and on terms which were not, unless the previous approval of the Central Government was obtained, disadvantageous. Since the arrangement which is made by the Government of the State of Gujarat must be regarded as provisional and to enure so long as the Central Government does not make a final decision it is not open to the officers of the Secretariat to challenge the authority of the Government of Gujarat either to transfer officers from the Districts and to post and assign them duties in the Secretariat or to fix their pay and seniority among the officers in the Secretariat performing ministerial duties.
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13. It was conceded, and rightly, that the State has the authority to transfer, subject to the Constitution and the rules made under Article 309, any public servant to render service which by his training and aptitude he was competent to do. Transfer of the personnel from the States of Saurashtra and Kutch to the Secretariat in the State of Gujarat and assignment of duties performable by the ministerial staff in the Secretariat cannot be challenged, and that because they were posted between 1956 and 1960 in the Districts they will not be deprived of their statutory right under Section 115 (7) proviso. Posting in the districts was and must remain purely provisional until final integration is made by the Central Government. It is common ground that no such final integration had been made by the Central Government.The High Court held that recruitment to the ministerial staff in the Secretariat could only be by nomination or by promotion from among members of the Lower Division, nomination being on the result of a competitive examination held by the Public Service Commission and promotion being from the subordinate staff. In view of this rule, according to the High Court, it was not open to the State Government to adopt any other method of recruitment of the members of the ministerial staff.18. Counsel for the appellants contended that Rule 138 only dealt with the existing servants and did not prevent any additional members from being amalgamated in the ministerial staff in the Secretariat. He also contended that the recruitment did not amount to admission of an officer for the first time in the service It is unnecessary for the purpose of this appeal to consider these arguments. Assuming that Rule 138 requires the State to follow a certain method for recruitment to the ministerial service, that rule made under Article 309 of the Constitution cannot take away the statutory right vested in the personnel of the former Saurashtra and Kutch States which they acquired underthe States Reorganisation Act, 1956, to hold posts in the new State which were equivalent and on terms which were not, unless the previous approval of the Central Government was obtained, disadvantageous. Since the arrangement which is made by the Government of the State of Gujarat must be regarded as provisional and to enure so long as the Central Government does not make a final decision it is not open to the officers of the Secretariat to challenge the authority of the Government of Gujarat either to transfer officers from the Districts and to post and assign them duties in the Secretariat or to fix their pay and seniority among the officers in the Secretariat performing ministerial duties.
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U.P. State Electricity Board, Lucknow Vs. P.L. Kelkar, Etc | was averred by the Board before the Public Services Tribunal that the contents of paragraph 11 are admitted." 5. In view of the above reply, respondent no. 1 submits that it is wholly irrelevant whether the records are now available or not because the above affidavit in the Public Services Tribunal was made after perusing the records. We are rather surprised that the Electricity Board should file an affidavit by the Deputy Secretary stating that the relevant records of the interviews held in the year 1968 are not available unless they have been done away with. 6. We have given above the necessary back-ground facts for appreciating the dispute involved in these cases. A decision in these cases depends upon the correct interpretation of Regulation 7(iv)(b) before and after its amendment. The regulation comprises of two parts. The first part refers to the advantage of advance increments. This advantage is based on special qualification and past experience and its consequent effect on seniority. The grant of subsequent increments by the Board after joining its service is not governed by, this regulation.It is the second part of the regulation that gives a little difficulty and it was on this that considerable arguments were addressed before us. Special reliance was placed upon the expression in doing so occurring in the regulation. What is contended is that this expression indicates the manner in which the first part is to be construed. The regulation, before its amendment mentioned Government departments or other organisations but after its amendment it was changed to in the U.P. or Central Government Department. This change shows a deliberate attempt to deny its benefit to employees who came from service not comprised in either U.P. or Central Government departments. We do not think that it would be either just o r fair to give a limited meaning to the second part of the amended regulation and thereby to deny its benefit to those Engineers who came from other departments or corporations etc. It is necessary to note that the first part of the regulation does not speak of Engineers in the U.P. or the Central Government Departments. It speaks only of Engineers directly recruited by the Board before the commencement of this regulation, which expression takes in, Engineers who came into the service of the Boa rd from all sources. That being so, it would not be proper to completely eliminate Engineers who came from other sources from the benefit of the regulation giving a restricted meaning to the expression in doing so. It is useful to not e. that the Boards advertisement inviting applications provided higher start for those having special qualifications and experience irrespective of the source of the service held by them. The second part of the regulation has therefore to be construed only as a proviso to the first part confining its scope to the employees of the U.P. as well as Central Government and not to affect the generality as contemplated in the first part.The injustice that will be meted out to the Engineers who came from outside if the restricted meaning is given to the second part of the regulation, can be best illustrated by referring to the case of Shri P.L. Kelkar. He was appointed as a Junior Engineer, P.W.D., M.P. on July 19, 1957 and was promoted as Assistant Engineer and posted in Housing Department on May 20, 1959. On June 9, 1960 he was appointed Engineer Assistant Grade I in Indian Refinery Limited, Guwahati, after leaving the services of the M.P. Government. Thereafter, he was appointed as Assistant Engineer on May 10, 1961, in Associated Cement Company Limited, Bombay. It was while working in that company that he came across the advertisement made by he U.P. State Electricity Board. He applied pursuant to such advertisement. He was selected by the Board and appointed as per order dated August 22, 1964. He joined service on October 7, 1964. He was given nine increments taking into consideration his special qualification and experience. Two increments were common to all. Thus, the extra increments given to him were seven. It is apparent that if this extra increment on the basis of his experience and special qualification did not carry with it, seniority in the Board, he would not have either applied or acc epted the job. It cannot be assumed that he would have joined the Board willingly as a new entrant. Under these circumstances, the Tribunal was justified in holding that he should be deemed to have been appointed w.e.f. October 7, 1957, instead o f October 7, 1964, when he joined the service of the Board. The Tribunal according to us justifiably repelled the contention that he was not entitled to the above advantage under the second part of the Regulation 7(iv)(b). In our view, the Tribunal was justified also in holding that second part is in the nature of proviso limited to persons who had been in service of either U.P. or the Central Government Departments and who had been given advance increments in consideration of such service.The High Court considered the question in detail with reference to the regulation under consideration and agreed with the Tribunal in the construction put by it regarding the second part of the regulation. We have also given our anxious consideration to the regulation before and after the amendment. We also come to the conclusion that the interest of justice will be advanced by agreeing with the High Court and the Tribunal in the construction given by them to this regulation. In our judgment, therefore, seniority will have to be fixed in accordance with the number of increments excluding the original two increments given to the entrants in the Board both from the U.P. and the Central Government Departments an d from other sources. We do not think it necessary to answer other aspects of the case for this judgment. We do not think any interference is called for with the judgment of the High Court. | 0[ds]We have given above the necessary back-ground facts for appreciating the dispute involved in these cases. A decision in these cases depends upon the correct interpretation of Regulation 7(iv)(b) before and after its amendment. The regulation comprises of two parts. The first part refers to the advantage of advance increments. This advantage is based on special qualification and past experience and its consequent effect on seniority. The grant of subsequent increments by the Board after joining its service is not governed by, this regulation.It is the second part of the regulation that gives a little difficulty and it was on this that considerable arguments were addressed before us. Special reliance was placed upon the expression in doing so occurring in the regulation. What is contended is that this expression indicates the manner in which the first part is to be construed. The regulation, before its amendment mentioned Government departments or other organisations but after its amendment it was changed to in the U.P. or Central Government Department. This change shows a deliberate attempt to deny its benefit to employees who came from service not comprised in either U.P. or Central Government departments. We do not think that it would be either just o r fair to give a limited meaning to the second part of the amended regulation and thereby to deny its benefit to those Engineers who came from other departments or corporations etc. It is necessary to note that the first part of the regulation does not speak of Engineers in the U.P. or the Central Government Departments. It speaks only of Engineers directly recruited by the Board before the commencement of this regulation, which expression takes in, Engineers who came into the service of the Boa rd from all sources. That being so, it would not be proper to completely eliminate Engineers who came from other sources from the benefit of the regulation giving a restricted meaning to the expression in doing so. It is useful to not e. that the Boards advertisement inviting applications provided higher start for those having special qualifications and experience irrespective of the source of the service held by them. The second part of the regulation has therefore to be construed only as a proviso to the first part confining its scope to the employees of the U.P. as well as Central Government and not to affect the generality as contemplated in the first part.The injustice that will be meted out to the Engineers who came from outside if the restricted meaning is given to the second part of the regulation, can be best illustrated by referring to the case of Shri P.L. Kelkar. He was appointed as a Junior Engineer, P.W.D., M.P. on July 19, 1957 and was promoted as Assistant Engineer and posted in Housing Department on May 20, 1959. On June 9, 1960 he was appointed Engineer Assistant Grade I in Indian Refinery Limited, Guwahati, after leaving the services of the M.P. Government. Thereafter, he was appointed as Assistant Engineer on May 10, 1961, in Associated Cement Company Limited, Bombay. It was while working in that company that he came across the advertisement made by he U.P. State Electricity Board. He applied pursuant to such advertisement. He was selected by the Board and appointed as per order dated August 22, 1964. He joined service on October 7, 1964. He was given nine increments taking into consideration his special qualification and experience. Two increments were common to all. Thus, the extra increments given to him were seven. It is apparent that if this extra increment on the basis of his experience and special qualification did not carry with it, seniority in the Board, he would not have either applied or acc epted the job. It cannot be assumed that he would have joined the Board willingly as a new entrant. Under these circumstances, the Tribunal was justified in holding that he should be deemed to have been appointed w.e.f. October 7, 1957, instead o f October 7, 1964, when he joined the service of the Board. The Tribunal according to us justifiably repelled the contention that he was not entitled to the above advantage under the second part of the Regulation 7(iv)(b). In our view, the Tribunal was justified also in holding that second part is in the nature of proviso limited to persons who had been in service of either U.P. or the Central Government Departments and who had been given advance increments in consideration of such service.The High Court considered the question in detail with reference to the regulation under consideration and agreed with the Tribunal in the construction put by it regarding the second part of the regulation. We have also given our anxious consideration to the regulation before and after the amendment. We also come to the conclusion that the interest of justice will be advanced by agreeing with the High Court and the Tribunal in the construction given by them to this regulation. In our judgment, therefore, seniority will have to be fixed in accordance with the number of increments excluding the original two increments given to the entrants in the Board both from the U.P. and the Central Government Departments an d from other sources. We do not think it necessary to answer other aspects of the case for this judgment. We do not think any interference is called for with the judgment of the High Court. | 0 | 3,508 | 997 | ### Instruction:
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was averred by the Board before the Public Services Tribunal that the contents of paragraph 11 are admitted." 5. In view of the above reply, respondent no. 1 submits that it is wholly irrelevant whether the records are now available or not because the above affidavit in the Public Services Tribunal was made after perusing the records. We are rather surprised that the Electricity Board should file an affidavit by the Deputy Secretary stating that the relevant records of the interviews held in the year 1968 are not available unless they have been done away with. 6. We have given above the necessary back-ground facts for appreciating the dispute involved in these cases. A decision in these cases depends upon the correct interpretation of Regulation 7(iv)(b) before and after its amendment. The regulation comprises of two parts. The first part refers to the advantage of advance increments. This advantage is based on special qualification and past experience and its consequent effect on seniority. The grant of subsequent increments by the Board after joining its service is not governed by, this regulation.It is the second part of the regulation that gives a little difficulty and it was on this that considerable arguments were addressed before us. Special reliance was placed upon the expression in doing so occurring in the regulation. What is contended is that this expression indicates the manner in which the first part is to be construed. The regulation, before its amendment mentioned Government departments or other organisations but after its amendment it was changed to in the U.P. or Central Government Department. This change shows a deliberate attempt to deny its benefit to employees who came from service not comprised in either U.P. or Central Government departments. We do not think that it would be either just o r fair to give a limited meaning to the second part of the amended regulation and thereby to deny its benefit to those Engineers who came from other departments or corporations etc. It is necessary to note that the first part of the regulation does not speak of Engineers in the U.P. or the Central Government Departments. It speaks only of Engineers directly recruited by the Board before the commencement of this regulation, which expression takes in, Engineers who came into the service of the Boa rd from all sources. That being so, it would not be proper to completely eliminate Engineers who came from other sources from the benefit of the regulation giving a restricted meaning to the expression in doing so. It is useful to not e. that the Boards advertisement inviting applications provided higher start for those having special qualifications and experience irrespective of the source of the service held by them. The second part of the regulation has therefore to be construed only as a proviso to the first part confining its scope to the employees of the U.P. as well as Central Government and not to affect the generality as contemplated in the first part.The injustice that will be meted out to the Engineers who came from outside if the restricted meaning is given to the second part of the regulation, can be best illustrated by referring to the case of Shri P.L. Kelkar. He was appointed as a Junior Engineer, P.W.D., M.P. on July 19, 1957 and was promoted as Assistant Engineer and posted in Housing Department on May 20, 1959. On June 9, 1960 he was appointed Engineer Assistant Grade I in Indian Refinery Limited, Guwahati, after leaving the services of the M.P. Government. Thereafter, he was appointed as Assistant Engineer on May 10, 1961, in Associated Cement Company Limited, Bombay. It was while working in that company that he came across the advertisement made by he U.P. State Electricity Board. He applied pursuant to such advertisement. He was selected by the Board and appointed as per order dated August 22, 1964. He joined service on October 7, 1964. He was given nine increments taking into consideration his special qualification and experience. Two increments were common to all. Thus, the extra increments given to him were seven. It is apparent that if this extra increment on the basis of his experience and special qualification did not carry with it, seniority in the Board, he would not have either applied or acc epted the job. It cannot be assumed that he would have joined the Board willingly as a new entrant. Under these circumstances, the Tribunal was justified in holding that he should be deemed to have been appointed w.e.f. October 7, 1957, instead o f October 7, 1964, when he joined the service of the Board. The Tribunal according to us justifiably repelled the contention that he was not entitled to the above advantage under the second part of the Regulation 7(iv)(b). In our view, the Tribunal was justified also in holding that second part is in the nature of proviso limited to persons who had been in service of either U.P. or the Central Government Departments and who had been given advance increments in consideration of such service.The High Court considered the question in detail with reference to the regulation under consideration and agreed with the Tribunal in the construction put by it regarding the second part of the regulation. We have also given our anxious consideration to the regulation before and after the amendment. We also come to the conclusion that the interest of justice will be advanced by agreeing with the High Court and the Tribunal in the construction given by them to this regulation. In our judgment, therefore, seniority will have to be fixed in accordance with the number of increments excluding the original two increments given to the entrants in the Board both from the U.P. and the Central Government Departments an d from other sources. We do not think it necessary to answer other aspects of the case for this judgment. We do not think any interference is called for with the judgment of the High Court.
### Response:
0
### Explanation:
We have given above the necessary back-ground facts for appreciating the dispute involved in these cases. A decision in these cases depends upon the correct interpretation of Regulation 7(iv)(b) before and after its amendment. The regulation comprises of two parts. The first part refers to the advantage of advance increments. This advantage is based on special qualification and past experience and its consequent effect on seniority. The grant of subsequent increments by the Board after joining its service is not governed by, this regulation.It is the second part of the regulation that gives a little difficulty and it was on this that considerable arguments were addressed before us. Special reliance was placed upon the expression in doing so occurring in the regulation. What is contended is that this expression indicates the manner in which the first part is to be construed. The regulation, before its amendment mentioned Government departments or other organisations but after its amendment it was changed to in the U.P. or Central Government Department. This change shows a deliberate attempt to deny its benefit to employees who came from service not comprised in either U.P. or Central Government departments. We do not think that it would be either just o r fair to give a limited meaning to the second part of the amended regulation and thereby to deny its benefit to those Engineers who came from other departments or corporations etc. It is necessary to note that the first part of the regulation does not speak of Engineers in the U.P. or the Central Government Departments. It speaks only of Engineers directly recruited by the Board before the commencement of this regulation, which expression takes in, Engineers who came into the service of the Boa rd from all sources. That being so, it would not be proper to completely eliminate Engineers who came from other sources from the benefit of the regulation giving a restricted meaning to the expression in doing so. It is useful to not e. that the Boards advertisement inviting applications provided higher start for those having special qualifications and experience irrespective of the source of the service held by them. The second part of the regulation has therefore to be construed only as a proviso to the first part confining its scope to the employees of the U.P. as well as Central Government and not to affect the generality as contemplated in the first part.The injustice that will be meted out to the Engineers who came from outside if the restricted meaning is given to the second part of the regulation, can be best illustrated by referring to the case of Shri P.L. Kelkar. He was appointed as a Junior Engineer, P.W.D., M.P. on July 19, 1957 and was promoted as Assistant Engineer and posted in Housing Department on May 20, 1959. On June 9, 1960 he was appointed Engineer Assistant Grade I in Indian Refinery Limited, Guwahati, after leaving the services of the M.P. Government. Thereafter, he was appointed as Assistant Engineer on May 10, 1961, in Associated Cement Company Limited, Bombay. It was while working in that company that he came across the advertisement made by he U.P. State Electricity Board. He applied pursuant to such advertisement. He was selected by the Board and appointed as per order dated August 22, 1964. He joined service on October 7, 1964. He was given nine increments taking into consideration his special qualification and experience. Two increments were common to all. Thus, the extra increments given to him were seven. It is apparent that if this extra increment on the basis of his experience and special qualification did not carry with it, seniority in the Board, he would not have either applied or acc epted the job. It cannot be assumed that he would have joined the Board willingly as a new entrant. Under these circumstances, the Tribunal was justified in holding that he should be deemed to have been appointed w.e.f. October 7, 1957, instead o f October 7, 1964, when he joined the service of the Board. The Tribunal according to us justifiably repelled the contention that he was not entitled to the above advantage under the second part of the Regulation 7(iv)(b). In our view, the Tribunal was justified also in holding that second part is in the nature of proviso limited to persons who had been in service of either U.P. or the Central Government Departments and who had been given advance increments in consideration of such service.The High Court considered the question in detail with reference to the regulation under consideration and agreed with the Tribunal in the construction put by it regarding the second part of the regulation. We have also given our anxious consideration to the regulation before and after the amendment. We also come to the conclusion that the interest of justice will be advanced by agreeing with the High Court and the Tribunal in the construction given by them to this regulation. In our judgment, therefore, seniority will have to be fixed in accordance with the number of increments excluding the original two increments given to the entrants in the Board both from the U.P. and the Central Government Departments an d from other sources. We do not think it necessary to answer other aspects of the case for this judgment. We do not think any interference is called for with the judgment of the High Court.
|
Ultratech Cement Limited Vs. Rajasthan Rajya Vidyut Utpadan Nigam Limited | the sale price determined under Section 9 (by way of an interim arrangement) of the Act. The arbitral awards also provided for an extension of the period of commercial activities between the parties for another 5 years, i.e., up to the year 2022.7. The question, that arises for adjudication before us is, as to whether the proceedings initiated under Section 9 of the Act, (whilst the arbitral proceedings were pending) survive, after the arbitral proceedings come to a closure. Insofar as the instant aspect of the matter is concerned, the answer thereto has to emanate from Section 9 of the Act. The above provision is extracted hereunder: "9. Interim measures, etc. by Court. - (1)A party may, before or during arbitral proceedings or at any time after the making of the arbitral award but before it is enforced in accordance with section 36, apply to a court-(i) for the appointment of a guardian for a minor or a person of unsound mind for the purposes of arbitral proceedings; or(ii) for an interim measure of protection in respect of any of the following matters, namely:-(a) the preservation, interim custody or sale of any goods which are the subject-matter of the arbitration agreement;(b) securing the amount in dispute in the arbitration;(c) the detention, preservation or inspection of any property or thing which is the subject-matter of the dispute in arbitration, or as to which any question may arise therein and authorising for any of the aforesaid purposes any person to enter upon any land or building in the possession of any party, or authorising any samples to be taken or any observation to be made, or experiment to be tried, which may be necessary or expedient for the purpose of obtaining full information or evidence;(d) interim injunction or the appointment of a receiver;(e) such other interim measure of protection as may appear to the court to be just and convenient, and the Court shall have the same power for making orders as it has for the purpose of, and in relation to, any proceedings before it.(2) Where, before the commencement of the arbitral proceedings, a Court passes an order for any interim measure of protection under sub-section (1), the arbitral proceedings shall be commenced within a period of ninety days from the date of such order or within such further time as the Court may determine.(3) Once the arbitral tribunal has been constituted, the Court shall not entertain an application under sub-section (1), unless the Court finds that circumstances exist which may not render the remedy provided under section 17 efficacious." A perusal of the above provision reveals, that interim measures can be allowed in favour of a party (who moves an application under Section 9 of the Act), either before the commencement of the arbitration proceedings, or during the pendencey of the arbitral proceedings, and even after the making of the arbitral award "... but before it is enforced in accordance with section 36...”. It is therefore apparent, that an interim arrangement, can be made under Section 9 of the Act, not only before and during the pendency of the arbitral proceedings, but also after the arbitral award has been pronounced. 8. As to whether the orders passed by the different Courts, which culminated in the two orders, extracted herein above, dated 13.12.2013 and 14.03.2014, would continue even after the passing of the arbitral award, in our considered view, would depend on the nature of the prayer made by the appellant, when the application under Section 9 was filed, before the concerned Court. We have extracted herein above the prayer made by the appellant in its section 9 application. A perusal thereof reveals, that the interim injunction was sought "...till adjudication of the dispute arises between the parties by appointing the arbitrator by the applicant as per Clause 9 of the agreement dated 15.10.2004 signed by and between the applicant and the respondent, passing of the award by the arbitrator, and also till enforcement of the said award...". It is therefore apparent, that the interim prayer made by the appellant under Section 9 of the Act in the very first instance was till the enforcement of the award. It is undoubtedly apparent from a perusal of Section 9 of the Act, extracted above, that the enforcement of the award can be effected only under Section 36 of the Act. The aforesaid stage has not yet emerged. The stage presently is of the interregnum, between the passing of the award, and the enforcement of the award under Section 36 of the Act.9. We are of the view, that the prayer made by the appellant clearly included the period, after the pronouncement of the award by the arbitral Tribunal. In the above view of the matter, it is not possible for us to hold, that the proceedings pending before this Court, have been rendered infructuous. In any case, it is now imperative for us to determine whether or not the impugned interim order, should continue till the proceedings under Section 34 of the Act (presently pending before the District Judge) are concluded. We are satisfied in directing, that the appellant shall, with effect from the date of the commencement of the arbitral award, pay for the fly ash taken by it from the respondent at the rate of Rs.245/- per metric tonne (i.e., in consonance with the arbitral award), till the determination of the proceedings under Section 34 of the Act. We however clarify, that in case, for any reason, the arbitral award is set aside or modified, as prayed for by the respondent – Nigam, the appellant would be liable to pay the higher amount, as the respondent would have been able to procure, as disclosed by the auction already held in 2011(for the period with effect from 2012). Likewise, in case the appellant before this Court succeeds, and is held to be entitled to pay a lesser amount, the payment with effect from 2012 would be regulated by the said determination. | 1[ds]8. As to whether the orders passed by the different Courts, which culminated in the two orders, extracted herein above, dated 13.12.2013 and 14.03.2014, would continue even after the passing of the arbitral award, in our considered view, would depend on the nature of the prayer made by the appellant, when the application under Section 9 was filed, before the concerned Court. We have extracted herein above the prayer made by the appellant in its section 9 application. A perusal thereof reveals, that the interim injunction was sought "...till adjudication of the dispute arises between the parties by appointing the arbitrator by the applicant as per Clause 9 of the agreement dated 15.10.2004 signed by and between the applicant and the respondent, passing of the award by the arbitrator, and also till enforcement of the said award...". It is therefore apparent, that the interim prayer made by the appellant under Section 9 of the Act in the very first instance was till the enforcement of the award. It is undoubtedly apparent from a perusal of Section 9 of the Act, extracted above, that the enforcement of the award can be effected only under Section 36 of the Act. The aforesaid stage has not yet emerged. The stage presently is of the interregnum, between the passing of the award, and the enforcement of the award under Section 36 of the Act.9. We are of the view, that the prayer made by the appellant clearly included the period, after the pronouncement of the award by the arbitral Tribunal. In the above view of the matter, it is not possible for us to hold, that the proceedings pending before this Court, have been rendered infructuous. In any case, it is now imperative for us to determine whether or not the impugned interim order, should continue till the proceedings under Section 34 of the Act (presently pending before the District Judge) are concluded. We are satisfied in directing, that the appellant shall, with effect from the date of the commencement of the arbitral award, pay for the fly ash taken by it from the respondent at the rate of Rs.245/per metric tonne (i.e., in consonance with the arbitral award), till the determination of the proceedings under Section 34 of the Act. We however clarify, that in case, for any reason, the arbitral award is set aside or modified, as prayed for by the respondent – Nigam, the appellant would be liable to pay the higher amount, as the respondent would have been able to procure, as disclosed by the auction already held in 2011(for the period with effect from 2012). Likewise, in case the appellant before this Court succeeds, and is held to be entitled to pay a lesser amount, the payment with effect from 2012 would be regulated by the saidperusal of the above provision reveals, that interim measures can be allowed in favour of a party (who moves an application under Section 9 of the Act), either before the commencement of the arbitration proceedings, or during the pendencey of the arbitral proceedings, and even after the making of the arbitral award "... but before it is enforced in accordance with section 36...It is therefore apparent, that an interim arrangement, can be made under Section 9 of the Act, not only before and during the pendency of the arbitral proceedings, but also after the arbitral award has been pronounced. | 1 | 2,002 | 646 | ### Instruction:
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the sale price determined under Section 9 (by way of an interim arrangement) of the Act. The arbitral awards also provided for an extension of the period of commercial activities between the parties for another 5 years, i.e., up to the year 2022.7. The question, that arises for adjudication before us is, as to whether the proceedings initiated under Section 9 of the Act, (whilst the arbitral proceedings were pending) survive, after the arbitral proceedings come to a closure. Insofar as the instant aspect of the matter is concerned, the answer thereto has to emanate from Section 9 of the Act. The above provision is extracted hereunder: "9. Interim measures, etc. by Court. - (1)A party may, before or during arbitral proceedings or at any time after the making of the arbitral award but before it is enforced in accordance with section 36, apply to a court-(i) for the appointment of a guardian for a minor or a person of unsound mind for the purposes of arbitral proceedings; or(ii) for an interim measure of protection in respect of any of the following matters, namely:-(a) the preservation, interim custody or sale of any goods which are the subject-matter of the arbitration agreement;(b) securing the amount in dispute in the arbitration;(c) the detention, preservation or inspection of any property or thing which is the subject-matter of the dispute in arbitration, or as to which any question may arise therein and authorising for any of the aforesaid purposes any person to enter upon any land or building in the possession of any party, or authorising any samples to be taken or any observation to be made, or experiment to be tried, which may be necessary or expedient for the purpose of obtaining full information or evidence;(d) interim injunction or the appointment of a receiver;(e) such other interim measure of protection as may appear to the court to be just and convenient, and the Court shall have the same power for making orders as it has for the purpose of, and in relation to, any proceedings before it.(2) Where, before the commencement of the arbitral proceedings, a Court passes an order for any interim measure of protection under sub-section (1), the arbitral proceedings shall be commenced within a period of ninety days from the date of such order or within such further time as the Court may determine.(3) Once the arbitral tribunal has been constituted, the Court shall not entertain an application under sub-section (1), unless the Court finds that circumstances exist which may not render the remedy provided under section 17 efficacious." A perusal of the above provision reveals, that interim measures can be allowed in favour of a party (who moves an application under Section 9 of the Act), either before the commencement of the arbitration proceedings, or during the pendencey of the arbitral proceedings, and even after the making of the arbitral award "... but before it is enforced in accordance with section 36...”. It is therefore apparent, that an interim arrangement, can be made under Section 9 of the Act, not only before and during the pendency of the arbitral proceedings, but also after the arbitral award has been pronounced. 8. As to whether the orders passed by the different Courts, which culminated in the two orders, extracted herein above, dated 13.12.2013 and 14.03.2014, would continue even after the passing of the arbitral award, in our considered view, would depend on the nature of the prayer made by the appellant, when the application under Section 9 was filed, before the concerned Court. We have extracted herein above the prayer made by the appellant in its section 9 application. A perusal thereof reveals, that the interim injunction was sought "...till adjudication of the dispute arises between the parties by appointing the arbitrator by the applicant as per Clause 9 of the agreement dated 15.10.2004 signed by and between the applicant and the respondent, passing of the award by the arbitrator, and also till enforcement of the said award...". It is therefore apparent, that the interim prayer made by the appellant under Section 9 of the Act in the very first instance was till the enforcement of the award. It is undoubtedly apparent from a perusal of Section 9 of the Act, extracted above, that the enforcement of the award can be effected only under Section 36 of the Act. The aforesaid stage has not yet emerged. The stage presently is of the interregnum, between the passing of the award, and the enforcement of the award under Section 36 of the Act.9. We are of the view, that the prayer made by the appellant clearly included the period, after the pronouncement of the award by the arbitral Tribunal. In the above view of the matter, it is not possible for us to hold, that the proceedings pending before this Court, have been rendered infructuous. In any case, it is now imperative for us to determine whether or not the impugned interim order, should continue till the proceedings under Section 34 of the Act (presently pending before the District Judge) are concluded. We are satisfied in directing, that the appellant shall, with effect from the date of the commencement of the arbitral award, pay for the fly ash taken by it from the respondent at the rate of Rs.245/- per metric tonne (i.e., in consonance with the arbitral award), till the determination of the proceedings under Section 34 of the Act. We however clarify, that in case, for any reason, the arbitral award is set aside or modified, as prayed for by the respondent – Nigam, the appellant would be liable to pay the higher amount, as the respondent would have been able to procure, as disclosed by the auction already held in 2011(for the period with effect from 2012). Likewise, in case the appellant before this Court succeeds, and is held to be entitled to pay a lesser amount, the payment with effect from 2012 would be regulated by the said determination.
### Response:
1
### Explanation:
8. As to whether the orders passed by the different Courts, which culminated in the two orders, extracted herein above, dated 13.12.2013 and 14.03.2014, would continue even after the passing of the arbitral award, in our considered view, would depend on the nature of the prayer made by the appellant, when the application under Section 9 was filed, before the concerned Court. We have extracted herein above the prayer made by the appellant in its section 9 application. A perusal thereof reveals, that the interim injunction was sought "...till adjudication of the dispute arises between the parties by appointing the arbitrator by the applicant as per Clause 9 of the agreement dated 15.10.2004 signed by and between the applicant and the respondent, passing of the award by the arbitrator, and also till enforcement of the said award...". It is therefore apparent, that the interim prayer made by the appellant under Section 9 of the Act in the very first instance was till the enforcement of the award. It is undoubtedly apparent from a perusal of Section 9 of the Act, extracted above, that the enforcement of the award can be effected only under Section 36 of the Act. The aforesaid stage has not yet emerged. The stage presently is of the interregnum, between the passing of the award, and the enforcement of the award under Section 36 of the Act.9. We are of the view, that the prayer made by the appellant clearly included the period, after the pronouncement of the award by the arbitral Tribunal. In the above view of the matter, it is not possible for us to hold, that the proceedings pending before this Court, have been rendered infructuous. In any case, it is now imperative for us to determine whether or not the impugned interim order, should continue till the proceedings under Section 34 of the Act (presently pending before the District Judge) are concluded. We are satisfied in directing, that the appellant shall, with effect from the date of the commencement of the arbitral award, pay for the fly ash taken by it from the respondent at the rate of Rs.245/per metric tonne (i.e., in consonance with the arbitral award), till the determination of the proceedings under Section 34 of the Act. We however clarify, that in case, for any reason, the arbitral award is set aside or modified, as prayed for by the respondent – Nigam, the appellant would be liable to pay the higher amount, as the respondent would have been able to procure, as disclosed by the auction already held in 2011(for the period with effect from 2012). Likewise, in case the appellant before this Court succeeds, and is held to be entitled to pay a lesser amount, the payment with effect from 2012 would be regulated by the saidperusal of the above provision reveals, that interim measures can be allowed in favour of a party (who moves an application under Section 9 of the Act), either before the commencement of the arbitration proceedings, or during the pendencey of the arbitral proceedings, and even after the making of the arbitral award "... but before it is enforced in accordance with section 36...It is therefore apparent, that an interim arrangement, can be made under Section 9 of the Act, not only before and during the pendency of the arbitral proceedings, but also after the arbitral award has been pronounced.
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Satyajit Kumar & Ors Vs. The State of Jharkhand & Ors | Areas who were already appointed and whose appointments are held to be illegal is concerned and their plea that the judgment of the High Court may be made applicable prospectively is concerned, the same may not be accepted. Reliance is placed upon the order passed by this Court in the case of Chebrolu Leela Prasad Rao (supra), by which, even this Court saved the appointments already made and the another decision of this Court in the case of Kailash Chand Sharma (supra) is concerned, such a prayer is not to be accepted. Once the Notification/Order dated 14.07.2016 are held to be ultra vires, as a necessary consequences, appointments made pursuant to such unconstitutional Notification/Order shall have to be set aside and such appointments as such cannot be regularized. As observed and held by this Court in the case of Secretary, State of Karnataka and Ors. Vs. Umadevi (supra), there is a distinction between illegal and irregular appointment and that the former cannot be regularized. 26.1. Now, so far as reliance placed upon the decision / order passed by this Court in the case of Chebrolu Leela Prasad Rao (supra) (para 167 to 169) is concerned, at the outset, it is required to be noted that before this Court the appointments were made since 1986 onwards and such appointments continued for a number of years and therefore, this Court saved the appointments already made which were continued for a number of years. While saving the appointments already made (which as such were found to be illegal), this Court specifically observed that in the peculiar facts and circumstances, the incumbents, who have been appointed, cannot be said to be at fault and they belong to the Scheduled Tribes. Even saving of the appointments was conditional as observed in para 168. 26.2. Now, so far as reliance placed upon the decision of this Court in the case of Kailash Chand Sharma (supra) in support of the prayer to apply judgment of the High Court prospectively and/or to save appointments already made is concerned, it is to be noted that in the said judgment also in para 47, it is specifically observed by this Court that the Court has moulded the relief on a consideration of special facts and circumstances of the case by acting within the framework of powers vested in this Court under Article 142 of the Constitution. It is further observed that even the judgment may not be treated as a binding precedent in any case that may arise in future. Therefore, once this Court has specifically observed that the said judgment may not be treated as a binding precedent in any case that may arise in future, the said judgment ought not to have been relied upon on behalf of the appellants. 26.3. In the present case, impugned Notification / Order is of the year 2016. The TGT recruitment process was initiated vide advertisement dated 28.12.2016 as modified on 04.02.2017 and same came to be challenged during the pendency of the recruitment process in the year 2017 itself. It is also required to be noted that by order dated 21.2.2019 the Division Bench of the High Court directed that notice be published in the daily newspapers having wide circulation about institution of the writ petition so that the person interested may intervene in the writ petition. Pursuant to such notice, several interlocutory applications/intervener applications came to be filed, which came to be allowed by the High Court. Thereafter, by order dated 18.09.2019, taking into consideration the question of Constitutional importance involved in the matters, the Division Bench of the High Court referred the matter to be decided by a Larger Bench. By the same order dated 18.09.2019, the High Court stayed the further implementation and operation of the impugned Notification No.5938 and Order No.5939 dated 14.7.2016, subject to the appointments already made, if any. Thus, from the aforesaid it can be seen that the original writ petitioners are always vigilant and diligent and approached the High Court at the first available opportunity. Their valuable right for consideration of their cases for appointment in the Scheduled Districts / Areas have been taken away. They have been successful before the High Court. Therefore, in the facts and circumstance of the case, the decision relied upon on behalf of the appellants to make impugned judgment and order passed by the High Court prospectively shall not be applicable to the facts of the case on hand. In the facts and circumstances of the case, the prayer on behalf of the appellants herein to make the impugned judgment and order passed by the High Court applicable prospectively, deserves to be rejected and is accordingly rejected. 27. However, at the same time and in the facts and circumstances of the case and more particularly, by quashing and setting aside the appointments already made there is a likelihood of more complication which would not be in the larger public interest. Hence, we are of the opinion that this is a fit case to mould the relief. Apart from the fact that the appellants herein – selected candidates belonging to the Scheduled Districts/Areas are already working since last about three years, in case appointments already made are not protected then thousands of schools in the State of Jharkhand would be without teachers and the ultimate sufferers would be the children of tribal areas. In view of the impugned judgment and order passed by the High Court, by which, the High Court has held all the appointments made in Scheduled Districts/Areas illegal and has further directed to go for fresh recruitment, the State will have to undergo fresh recruitment process which may take considerable time and, in the meantime, there shall be vacancies and number of schools in the tribal areas shall be without teachers. Therefore, the Court has to strike a balance between the rights of the original writ petitioners as well as persons/teachers already appointed (whose appointments are held to be illegal) and also the public interest. | 0[ds]18. Identical question came to be considered by the Constitutional Bench of this Court in the case of Chebrolu Leela Prasad Rao (supra). Before this Court the Governor of State of Andhra Pradesh issued GO in exercise of powers under paragraph 5(1) of the Schedule 5 of the Constitution of India, directing the posts of teachers in educational institutions in the scheduled tribe areas shall be reserved for Scheduled Tribes only notwithstanding anything contained in any other order or rule or law in force. Several questions were referred to the Constitution Bench. The following questions were ultimately framed for consideration by the Constitutional Bench:(1) What is the scope of paragraph 5(1), Schedule V to the Constitution of India?(a) Does the provision empower the Governor to make a new law?(b) Does the power extend to subordinate legislation?(c) Can the exercise of the power conferred therein override fundamental rights guaranteed under Part III?(d) Does the exercise of such power override any parallel exercise of power by the President under Article 371D?(2) Whether 100% reservation is permissible under the Constitution?(3) Whether the notification merely contemplates a classification under Article 16(1)and not reservation under Article 16(4)?(4) Whether the conditions of eligibility (i.e., origin and cut-off date) to avail the benefit of reservation in the notification are reasonable?18.1. Question No.1(a), (b), (c) and question no.3 referred to herein above are relevant for our purpose.18.2. After taking into consideration the relevant Constitutional provisions viz. Article 244, Fifth Schedule, so far as question No.1(a) viz. whether the provision empower the Governor to make a new law is concerned, it is observed and held by the Constitution Bench that the Governors power to make new law is not available in view of the clear language of Para 5(1) Fifth Schedule does not recognize or confer such power, but only power is not to apply the law or to apply it with exceptions or modifications.(para 51)18.3. Answering question no.1(b) viz. does the power extend to subordinate legislation, it is observed and held that Rules framed under the proviso to Article 309 of the Constitution cannot be said to be an Act of Parliament or of State Legislature. It is observed and held that the power of Governor under Para 5(1) of Schedule V of the Constitution is restricted to modifying or not to apply, Acts of the Parliament or Legislature of the State. Thus, Rules could not have been amended in the exercise of the powers conferred under Para 5(1) of the Schedule V. It is further observed and held that the Rules made under the proviso to Article 309 of the Constitution cannot be said to be an enactment by the State Legislature. (paras 52 to 57).18.4. While answering question 1(c) viz. can the exercise of the powers conferred under Para 5(1) of Fifth Schedule override fundamental rights guaranteed under Part III, after considering the decisions of this Court in the case of Kesavananda Bharati Vs. State of Kerala reported in (1973) 4 SCC 225 ; Waman Rao Vs. Union of India reported in (1981) 2 SCC 362 ; I.R. Coelho (Dead) by Lrs. Vs. State of T.N. reported in (2007) 2 SCC 1 ; S.R. Chaudhuri Vs. State of Punjab reported in (2001) 7 SCC 126 ; Ajay Hasia Vs. Khalid Mujib Sehravadi reported in (1981) 1 SCC 722 ; E.P. Royappa Vs. State of Tamil Nadu reported in (1974) 2 SCC 3; Maneka Gandhi Vs. Union of India reported in (1978) 1 SCC 248 ; Ramana Dayaram Shetty Vs. International Airport Authority of India and Ors. reported in (1979) 3 SCC 489 ; Neelima Misra Vs. Harinder Kaur Paintal reported in (1990) 2 SCC 746 and Peerless General Finance and Investment Co. Ltd Vs. Reserve Bank of India reported in (1992) 2 SCC 343, it is finally observed and held that the power conferred on the Governor to deal with the scheduled areas is not meant to prevail over the Constitution. The power of the Governor is pari passu with the legislative power of Parliament and the State. The legislative power can be exercised by the Parliament or the State subject to the provisions of Part III of the Constitution. Thereafter, it is ultimately observed and held that the power of the Governor does not supersede the fundamental rights guaranteed under Part III of the Constitution. It has to be exercised subject to Part III and other provisions of the Constitution. It is further observed and held that when Para 5 of the Fifth Schedule confers power on the Governor, it is not meant to confer an arbitrary power. The Constitution can never aim to confer any arbitrary power on the constitutional authorities. They are to be exercised in a legal and rational manner keeping in view the objectives and provisions of the Constitution. The powers are not in derogation but in the furtherance of the Constitutional aims and objectives. (para 78). While holding so, the Constitutional Bench also considered the effect of the non-obstante clause used in para 5(1) of the Fifth Schedule of the Constitution. While considering the effect of the non-obstante clause, it is observed in para 69, 70, 74 and 75 as under:69. Para 5(1) of the Fifth Schedule of the Constitution starts with a nonobstante clause. What is the effect of the non obstante clause vis-a- vis the applicability to other provisions of the Constitution? Whether the provisions of Para 5(1) prevail over all other provisions of the Constitution? Whether the fundamental rights in Part III of the Constitution are inapplicable and need not be satisfied?70. The provision of the Fifth Schedule beginning with the words notwithstanding anything in this Constitution cannot be construed as taking away the provision outside the limitations on the amending power and has to be harmoniously construed consistent with the foundational principles and the basic features of the Constitution.74. The nonobstante clause contained in Para 5(1) of the Fifth Schedule of the Constitution means the Governor can exercise power in spite of the provisions contained in Article 245 of the Constitution, conferring the power upon Parliament to make laws and the legislature of the State. The Parliament has the power to enact the law. It cannot be questioned on the ground that it would have extra territorial operation.75. The nonobstante clause has also been considered in Smt. Parayankandiyal Eravath Kanapravan Kalliani Amma & Ors. v. K. Devi & Ors., AIR 1996 SC 1963 . The scope has to be considered in the context and purpose for which it has been carved out.18.5. As observed herein above, we are also of the opinion that the non-obstante clause contained in para 5(1) of the Fifth Schedule of the Constitution shall be read with respect to power of the Governor to suspend and/or modify the law made by the Parliament despite Articles 244 and 245 of the Constitution of India. It cannot be read as conferring upon the Governor absolute power and/or unfettered power, notwithstanding the provisions contained in Part III of the Constitution.19. While answering question no.2 viz. whether 100% reservation is permissible under the Constitution, after referring to and / or considering various decisions of this Court on 100% reservation and after considering Articles 14, 15 and 16 and other relevant Constitutional provisions and after taking into consideration decision of this Court in the case of Indra Sawhney (supra), it is ultimately observed and held that the reservation that is permissible by protective mode, by making it 100 percent would become discriminatory and impermissible. It is further observed and held that the opportunity of public employment cannot be denied unjustly to the incumbents, and it is not the prerogative of a few. The citizens have equal rights, and the total exclusion of others by creating an opportunity for one class is not contemplated by the founding fathers of the Constitution of India.19.1. Thus, in the case of Chebrolu Leela Prasad Rao (supra), after considering the relevant Constitutional provisions in detail including the powers of the Governor conferred in para 5(1) of the Fifth Schedule of the Constitution of India, it is ultimately observed and held as under:166. We answer the questions referred to us thus:Question No.1: The Governor in the exercise of powers under Para 5(1), Fifth Schedule of the Constitution, can exercise the powers concerning any particular Act of the Parliament or the legislature of the State. The Governor can direct that such law shall not apply to the Scheduled Areas or any part thereof. The Governor is empowered to apply such law to the Scheduled Area or any part thereof in the State subject to such exceptions and modifications as he may specify in the notification and can also issue a notification with retrospective effect.Question No.1(a): The Governor is empowered under Para 5(1), Fifth Schedule of the Constitution, to direct that any particular Act of Parliament or the Legislature of the State, shall not apply to a Scheduled Area or apply the same with exceptions and modifications. The Governor can make a provision within the parameters of amendment/ modification of the Act of Parliament or State legislature. The power to make new laws/regulations, is provided in Para 5(2), Fifth Schedule of the Constitution for the purpose mentioned therein, not under Para 5(1) of the Fifth Schedule to the Constitution of India.Question No.1(b): The power of the Governor under Para 5(1), Fifth Schedule to the Constitution does not extend to subordinate legislation, it is with respect to an Act enacted in the sovereign function by the Parliament or legislature of the State which can be dealt with.Question No.1(c): The Governors power under Para 5(1) of the Fifth Schedule to the Constitution is subject to some restrictions, which have to be observed by the Parliament or the legislature of the State while making law and cannot override the fundamental rights guaranteed under Part III of the Constitution.Question No.1(d): In exercise of power under Para 5(1) of the Fifth Schedule to the Constitution of India, the Governor cannot override the notification issued by the President in the exercise of powers under Article 371D.The power has to be exercised harmoniously with such an order issued underArticle 371D, not in conflict thereof.Question No.2: G.O.Ms. No.3/2000 providing for 100 per cent reservation is not permissible under the Constitution, the outer limit is 50 per cent as specified in Indra Sawhney (supra).Question No.3: The notification in question cannot be treated as classification made underArticle 16(1).Once the reservation has been provided to Scheduled Tribes under Article 16(4), no such power can be exercised under Article 16(1). The notification is violative of Articles 14 and 16(4) of the Constitution of India.Question No.4 : The conditions of eligibility in the notification with a cut-off date i.e. 26-1-1950, to avail the benefits of reservation, is unreasonable and arbitrary one.20. Applying law laid down by the Constitution Bench of this Court in the case of Chebrolu Leela Prasad Rao (supra), to the facts of the case on hand, the impugned Order/ Notification No.5938 and the Order No.5939 dated 14.07.2016 providing 100% reservation for the local residents of concerned Scheduled Districts/ Areas only can be said to be(1) beyond the scope and ambit of powers conferred upon the Governor under para 5(1) of the Fifth Schedule of the Constitution of India;(2) 100% reservation provided for the local residents of the concerned Scheduled Districts / Areas only would be violative of Article 16(2) of the Constitution of India and affecting rights of the other candidates / citizens of non-scheduled areas / Districts guaranteed under Part III of the Constitution of India;(3) the exercise of powers by the Governor under para 5(1) of the Fifth Schedule of the Constitution of India modifying Recruitment Rules, 2015 which are framed under Article 309 of the Constitution of India which can be said to be subordinate legislation and cannot be said to be an Act or the Law made by the Parliament and / or State Legislature is beyond the scope and ambit of Governors power under para 5(1) of the Fifth Schedule of the Constitution of India.21. The submission on behalf of the appellants and State that the decision of this Court in the case of Chebrolu Leela Prasad Rao (supra) shall not be applicable to the facts of the case on hand inasmuch as in the said case there was 100% reservation for Scheduled Tribe candidates which was held to be violating the rights of the other reserved category candidates also and that the decision of this Court in the case of Chebrolu Leela Prasad Rao (supra) is required to be reconsidered is concerned has no substance. What is required to be considered is the ratio decidendi and law laid down by this Court. There is clear law laid down by Constitution Bench of this Court as noted above. The decision of the Constitution Bench which is rendered after considering the relevant constitutional provisions and a number of decisions of this Court is as such binding on us. It cannot be said that the relevant Constitutional provisions and/or binding decisions of this Court have not been dealt with and/or considered by this Court. The Constitutional Bench decision of this Court in the case of Chebrolu Leela Prasad Rao (supra) also cannot be said to be per incuriam ignoring and/or taking a contrary view than any of the binding decision of this Court. As such and as observed herein above, we reiterate that we are bound by the law laid down by this Court, more particularly, a Constitution Bench decision of this Court. We see no reason not to follow the binding Constitution Bench decision of this Court in the case of Chebrolu Leela Prasad Rao (supra). We see no reason to take a different view than the view taken by the Constitution Bench of this court in the case of Chebrolu Leela Prasad Rao (supra). We also see no reason to refer the matter to a Larger Bench as prayed by some of the counsel appearing on behalf of the appellants – candidates belonging to the Scheduled Areas/ Districts.22. One other submission which is made by the learned Advocate General appearing on behalf of the State before the High Court was that in order to overcome the factors of low human development indices, backwardness, poverty etc., in the scheduled districts and to secure justice - social, economic and political, the notification was issued by the Governor of the State for protecting the interests of the residents in the scheduled districts. That even otherwise, it would be of immense benefit to the school-going children in the scheduled districts, if they are taught in their own tribal language by the local teachers, than the outsiders, who may not be well conversant with the local language. At the outset, it is required to be noted that such submission was not pressed into service heavily by any of the counsel appearing on behalf of the appellants before the High Court. However, it is to be noted that in the case of Chebrolu Leela Prasad Rao (supra) the Constitution Bench of this Court also considered the very submission and negated the same by observing in para 130 and 131 as under:130. No law mandates that only tribal teachers can teach in the scheduled areas; thus, the action defies the logic. Another reason given is the phenomenal absenteeism of teachers in schools. That could not have been a ground for providing 100 percent reservation to the tribal teachers in the areas. It is not the case that incumbents of other categories are not available in the areas. When a district is a unit for the employment, the ground applied for providing reservation for phenomenal absenteeism is irrelevant and could not have formed the basis for providing 100 percent reservation. The problem of absenteeism could have been taken care of by providing better facilities and other incentives.131. The reason assigned that reservation was to cover impetus in the scheduled areas in the field of education and to strengthen educational infrastructure is also equally bereft of substance. By depriving opportunity to the others, it cannot be said that any impetus could have been given to the cause of students and effective education, and now that could have been strengthened. The provisions of 100 percent reservation are ignoring the merit. Thus, it would weaken the educational infrastructure and the merit and the standard of education imparted in the schools. Educational development of students cannot be made only by a particular class of teachers appointed by providing reservation, ignoring merit in toto. The ideal approach would be that teachers are selected based on merit.22.1. Even otherwise, it is to be noted that it may be true that so far as basic education (at the level of primary section) is concerned, it may help student at the primary level (while providing basic education) to be taught in their own tribal language. But the same principle may not be applicable when question is of providing education at higher level viz. above 5th standard. Therefore, if the candidates belonging to other areas (non-Scheduled Areas/ Districts) are given an opportunity to impart education (who may be more meritorious than the candidates belonging to the Scheduled Areas / Districts) than it will be more beneficial to the students belonging to the Scheduled Areas and their quality of the education shall certainly improve. The quality of education of the school-going children cannot be compromised by giving 100% reservation in favour of the teachers of the same/some districts and prohibiting the appointment to more meritorious teachers.23. At this stage, it is required to be noted that even the impugned Order/Notification dated 14.07.2016 and the advertisement providing 100% reservations for local residents of concerned Scheduled Areas/Districts can be said to be violative of Article 13 of the Constitution of India also. As observed herein above, the impugned Order/Notification making 100% reservation for the local resident of the concerned Scheduled Districts/Areas is violative of Article 16(2) of the Constitution of India as it affects the fundamental rights guaranteed to the candidate belonging to the non-Scheduled Areas guaranteed under part III of the Constitution of India. As per Article 13 of the Constitution of India, the State shall not make any law which takes away or abridges the rights conferred by this Part and any law made in contravention of Article 13(2) shall to the extent of the contravention, be void. Therefore, also impugned Notification/Order/Advertisement making 100% reservation for the local resident of the concerned Scheduled Areas / Districts shall be ultra vires Article 13 of the Constitution of India and shall be void.25. Applying the law laid down by this Court in the case of Chebrolu Leela Prasad Rao (supra) and in view of the above discussion and for the reasons stated above, the High Court has not committed any error in concluding and holding that the Notification No.5938 and Order No.5939 dated 14.7.2016 issued by the State Government providing 100% reservation for the local residents of concerned Scheduled Districts/Areas as being unconstitutional and ultra vires Articles 14, 13(2), 15 and 16(2) of the Constitution of India. It is rightly observed and held that said Notification and Order would also violate Articles 16(3) and 35(a-i) of the Constitution of India. The High Court has also rightly observed and held that aforesaid Notification and Order is ultra vires to paragraph 5(1) of the Fifth Schedule of the Constitution of India. We are in complete agreement with the view taken by the High Court.26. Now, so far as the prayer made on behalf of the respective appellants herein- candidates belonging to the Scheduled Districts / Areas who were already appointed and whose appointments are held to be illegal is concerned and their plea that the judgment of the High Court may be made applicable prospectively is concerned, the same may not be accepted. Reliance is placed upon the order passed by this Court in the case of Chebrolu Leela Prasad Rao (supra), by which, even this Court saved the appointments already made and the another decision of this Court in the case of Kailash Chand Sharma (supra) is concerned, such a prayer is not to be accepted. Once the Notification/Order dated 14.07.2016 are held to be ultra vires, as a necessary consequences, appointments made pursuant to such unconstitutional Notification/Order shall have to be set aside and such appointments as such cannot be regularized. As observed and held by this Court in the case of Secretary, State of Karnataka and Ors. Vs. Umadevi (supra), there is a distinction between illegal and irregular appointment and that the former cannot be regularized.26.1. Now, so far as reliance placed upon the decision / order passed by this Court in the case of Chebrolu Leela Prasad Rao (supra) (para 167 to 169) is concerned, at the outset, it is required to be noted that before this Court the appointments were made since 1986 onwards and such appointments continued for a number of years and therefore, this Court saved the appointments already made which were continued for a number of years. While saving the appointments already made (which as such were found to be illegal), this Court specifically observed that in the peculiar facts and circumstances, the incumbents, who have been appointed, cannot be said to be at fault and they belong to the Scheduled Tribes. Even saving of the appointments was conditional as observed in para 168.26.2. Now, so far as reliance placed upon the decision of this Court in the case of Kailash Chand Sharma (supra) in support of the prayer to apply judgment of the High Court prospectively and/or to save appointments already made is concerned, it is to be noted that in the said judgment also in para 47, it is specifically observed by this Court that the Court has moulded the relief on a consideration of special facts and circumstances of the case by acting within the framework of powers vested in this Court under Article 142 of the Constitution. It is further observed that even the judgment may not be treated as a binding precedent in any case that may arise in future. Therefore, once this Court has specifically observed that the said judgment may not be treated as a binding precedent in any case that may arise in future, the said judgment ought not to have been relied upon on behalf of the appellants.26.3. In the present case, impugned Notification / Order is of the year 2016. The TGT recruitment process was initiated vide advertisement dated 28.12.2016 as modified on 04.02.2017 and same came to be challenged during the pendency of the recruitment process in the year 2017 itself. It is also required to be noted that by order dated 21.2.2019 the Division Bench of the High Court directed that notice be published in the daily newspapers having wide circulation about institution of the writ petition so that the person interested may intervene in the writ petition. Pursuant to such notice, several interlocutory applications/intervener applications came to be filed, which came to be allowed by the High Court. Thereafter, by order dated 18.09.2019, taking into consideration the question of Constitutional importance involved in the matters, the Division Bench of the High Court referred the matter to be decided by a Larger Bench. By the same order dated 18.09.2019, the High Court stayed the further implementation and operation of the impugned Notification No.5938 and Order No.5939 dated 14.7.2016, subject to the appointments already made, if any. Thus, from the aforesaid it can be seen that the original writ petitioners are always vigilant and diligent and approached the High Court at the first available opportunity. Their valuable right for consideration of their cases for appointment in the Scheduled Districts / Areas have been taken away. They have been successful before the High Court. Therefore, in the facts and circumstance of the case, the decision relied upon on behalf of the appellants to make impugned judgment and order passed by the High Court prospectively shall not be applicable to the facts of the case on hand. In the facts and circumstances of the case, the prayer on behalf of the appellants herein to make the impugned judgment and order passed by the High Court applicable prospectively, deserves to be rejected and is accordingly rejected.27. However, at the same time and in the facts and circumstances of the case and more particularly, by quashing and setting aside the appointments already made there is a likelihood of more complication which would not be in the larger public interest. Hence, we are of the opinion that this is a fit case to mould the relief. Apart from the fact that the appellants herein – selected candidates belonging to the Scheduled Districts/Areas are already working since last about three years, in case appointments already made are not protected then thousands of schools in the State of Jharkhand would be without teachers and the ultimate sufferers would be the children of tribal areas. In view of the impugned judgment and order passed by the High Court, by which, the High Court has held all the appointments made in Scheduled Districts/Areas illegal and has further directed to go for fresh recruitment, the State will have to undergo fresh recruitment process which may take considerable time and, in the meantime, there shall be vacancies and number of schools in the tribal areas shall be without teachers. Therefore, the Court has to strike a balance between the rights of the original writ petitioners as well as persons/teachers already appointed (whose appointments are held to be illegal) and also the public interest. | 0 | 20,967 | 4,827 | ### Instruction:
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Areas who were already appointed and whose appointments are held to be illegal is concerned and their plea that the judgment of the High Court may be made applicable prospectively is concerned, the same may not be accepted. Reliance is placed upon the order passed by this Court in the case of Chebrolu Leela Prasad Rao (supra), by which, even this Court saved the appointments already made and the another decision of this Court in the case of Kailash Chand Sharma (supra) is concerned, such a prayer is not to be accepted. Once the Notification/Order dated 14.07.2016 are held to be ultra vires, as a necessary consequences, appointments made pursuant to such unconstitutional Notification/Order shall have to be set aside and such appointments as such cannot be regularized. As observed and held by this Court in the case of Secretary, State of Karnataka and Ors. Vs. Umadevi (supra), there is a distinction between illegal and irregular appointment and that the former cannot be regularized. 26.1. Now, so far as reliance placed upon the decision / order passed by this Court in the case of Chebrolu Leela Prasad Rao (supra) (para 167 to 169) is concerned, at the outset, it is required to be noted that before this Court the appointments were made since 1986 onwards and such appointments continued for a number of years and therefore, this Court saved the appointments already made which were continued for a number of years. While saving the appointments already made (which as such were found to be illegal), this Court specifically observed that in the peculiar facts and circumstances, the incumbents, who have been appointed, cannot be said to be at fault and they belong to the Scheduled Tribes. Even saving of the appointments was conditional as observed in para 168. 26.2. Now, so far as reliance placed upon the decision of this Court in the case of Kailash Chand Sharma (supra) in support of the prayer to apply judgment of the High Court prospectively and/or to save appointments already made is concerned, it is to be noted that in the said judgment also in para 47, it is specifically observed by this Court that the Court has moulded the relief on a consideration of special facts and circumstances of the case by acting within the framework of powers vested in this Court under Article 142 of the Constitution. It is further observed that even the judgment may not be treated as a binding precedent in any case that may arise in future. Therefore, once this Court has specifically observed that the said judgment may not be treated as a binding precedent in any case that may arise in future, the said judgment ought not to have been relied upon on behalf of the appellants. 26.3. In the present case, impugned Notification / Order is of the year 2016. The TGT recruitment process was initiated vide advertisement dated 28.12.2016 as modified on 04.02.2017 and same came to be challenged during the pendency of the recruitment process in the year 2017 itself. It is also required to be noted that by order dated 21.2.2019 the Division Bench of the High Court directed that notice be published in the daily newspapers having wide circulation about institution of the writ petition so that the person interested may intervene in the writ petition. Pursuant to such notice, several interlocutory applications/intervener applications came to be filed, which came to be allowed by the High Court. Thereafter, by order dated 18.09.2019, taking into consideration the question of Constitutional importance involved in the matters, the Division Bench of the High Court referred the matter to be decided by a Larger Bench. By the same order dated 18.09.2019, the High Court stayed the further implementation and operation of the impugned Notification No.5938 and Order No.5939 dated 14.7.2016, subject to the appointments already made, if any. Thus, from the aforesaid it can be seen that the original writ petitioners are always vigilant and diligent and approached the High Court at the first available opportunity. Their valuable right for consideration of their cases for appointment in the Scheduled Districts / Areas have been taken away. They have been successful before the High Court. Therefore, in the facts and circumstance of the case, the decision relied upon on behalf of the appellants to make impugned judgment and order passed by the High Court prospectively shall not be applicable to the facts of the case on hand. In the facts and circumstances of the case, the prayer on behalf of the appellants herein to make the impugned judgment and order passed by the High Court applicable prospectively, deserves to be rejected and is accordingly rejected. 27. However, at the same time and in the facts and circumstances of the case and more particularly, by quashing and setting aside the appointments already made there is a likelihood of more complication which would not be in the larger public interest. Hence, we are of the opinion that this is a fit case to mould the relief. Apart from the fact that the appellants herein – selected candidates belonging to the Scheduled Districts/Areas are already working since last about three years, in case appointments already made are not protected then thousands of schools in the State of Jharkhand would be without teachers and the ultimate sufferers would be the children of tribal areas. In view of the impugned judgment and order passed by the High Court, by which, the High Court has held all the appointments made in Scheduled Districts/Areas illegal and has further directed to go for fresh recruitment, the State will have to undergo fresh recruitment process which may take considerable time and, in the meantime, there shall be vacancies and number of schools in the tribal areas shall be without teachers. Therefore, the Court has to strike a balance between the rights of the original writ petitioners as well as persons/teachers already appointed (whose appointments are held to be illegal) and also the public interest.
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the Scheduled Districts / Areas who were already appointed and whose appointments are held to be illegal is concerned and their plea that the judgment of the High Court may be made applicable prospectively is concerned, the same may not be accepted. Reliance is placed upon the order passed by this Court in the case of Chebrolu Leela Prasad Rao (supra), by which, even this Court saved the appointments already made and the another decision of this Court in the case of Kailash Chand Sharma (supra) is concerned, such a prayer is not to be accepted. Once the Notification/Order dated 14.07.2016 are held to be ultra vires, as a necessary consequences, appointments made pursuant to such unconstitutional Notification/Order shall have to be set aside and such appointments as such cannot be regularized. As observed and held by this Court in the case of Secretary, State of Karnataka and Ors. Vs. Umadevi (supra), there is a distinction between illegal and irregular appointment and that the former cannot be regularized.26.1. Now, so far as reliance placed upon the decision / order passed by this Court in the case of Chebrolu Leela Prasad Rao (supra) (para 167 to 169) is concerned, at the outset, it is required to be noted that before this Court the appointments were made since 1986 onwards and such appointments continued for a number of years and therefore, this Court saved the appointments already made which were continued for a number of years. While saving the appointments already made (which as such were found to be illegal), this Court specifically observed that in the peculiar facts and circumstances, the incumbents, who have been appointed, cannot be said to be at fault and they belong to the Scheduled Tribes. Even saving of the appointments was conditional as observed in para 168.26.2. Now, so far as reliance placed upon the decision of this Court in the case of Kailash Chand Sharma (supra) in support of the prayer to apply judgment of the High Court prospectively and/or to save appointments already made is concerned, it is to be noted that in the said judgment also in para 47, it is specifically observed by this Court that the Court has moulded the relief on a consideration of special facts and circumstances of the case by acting within the framework of powers vested in this Court under Article 142 of the Constitution. It is further observed that even the judgment may not be treated as a binding precedent in any case that may arise in future. Therefore, once this Court has specifically observed that the said judgment may not be treated as a binding precedent in any case that may arise in future, the said judgment ought not to have been relied upon on behalf of the appellants.26.3. In the present case, impugned Notification / Order is of the year 2016. The TGT recruitment process was initiated vide advertisement dated 28.12.2016 as modified on 04.02.2017 and same came to be challenged during the pendency of the recruitment process in the year 2017 itself. It is also required to be noted that by order dated 21.2.2019 the Division Bench of the High Court directed that notice be published in the daily newspapers having wide circulation about institution of the writ petition so that the person interested may intervene in the writ petition. Pursuant to such notice, several interlocutory applications/intervener applications came to be filed, which came to be allowed by the High Court. Thereafter, by order dated 18.09.2019, taking into consideration the question of Constitutional importance involved in the matters, the Division Bench of the High Court referred the matter to be decided by a Larger Bench. By the same order dated 18.09.2019, the High Court stayed the further implementation and operation of the impugned Notification No.5938 and Order No.5939 dated 14.7.2016, subject to the appointments already made, if any. Thus, from the aforesaid it can be seen that the original writ petitioners are always vigilant and diligent and approached the High Court at the first available opportunity. Their valuable right for consideration of their cases for appointment in the Scheduled Districts / Areas have been taken away. They have been successful before the High Court. Therefore, in the facts and circumstance of the case, the decision relied upon on behalf of the appellants to make impugned judgment and order passed by the High Court prospectively shall not be applicable to the facts of the case on hand. In the facts and circumstances of the case, the prayer on behalf of the appellants herein to make the impugned judgment and order passed by the High Court applicable prospectively, deserves to be rejected and is accordingly rejected.27. However, at the same time and in the facts and circumstances of the case and more particularly, by quashing and setting aside the appointments already made there is a likelihood of more complication which would not be in the larger public interest. Hence, we are of the opinion that this is a fit case to mould the relief. Apart from the fact that the appellants herein – selected candidates belonging to the Scheduled Districts/Areas are already working since last about three years, in case appointments already made are not protected then thousands of schools in the State of Jharkhand would be without teachers and the ultimate sufferers would be the children of tribal areas. In view of the impugned judgment and order passed by the High Court, by which, the High Court has held all the appointments made in Scheduled Districts/Areas illegal and has further directed to go for fresh recruitment, the State will have to undergo fresh recruitment process which may take considerable time and, in the meantime, there shall be vacancies and number of schools in the tribal areas shall be without teachers. Therefore, the Court has to strike a balance between the rights of the original writ petitioners as well as persons/teachers already appointed (whose appointments are held to be illegal) and also the public interest.
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National Insurance Company Limited Vs. Dinesh | Leave granted We have heard learned for the parties. Feeling aggrieved by the order dated 25.8.1999 of the State Consumer Disputes Redressal Commission, Maharashtra in complaint No. C/228/1997 directing the appellant to pay a sum of Rs. 5, 38, 500/- with interest at the rate of 15% with effect from 1.4.1996 till the date of payment, the appellant National Insurance Co. Limited filed first appeal No. 59 of 2000 under Section 21 of the Consumer Protection Act, 1986 before the National Consumer Disputes Redressal Commission. The said appeal was summarily dismissed by a cryptic and unreasoned order which reads as follows : "Delay condoned. We have gone through the records of the case. We are disinclined to interfere with the order passed by the State Commission. The appeal is dismissed." Hence this appeal. In the order passed on 18th September, 2000 this Court while issuing notice to the respondent took note of the contention raised by the learned Counsel of the appellant that under the proviso to Section 64UM of the Insurance Act, 1938 it is open to the Insurance Company to dispute the correctness of the estimates of loss as made by the Surveyor and that the State Commission was wrong in directing the Insurance Company to pay the entire amount of Rs. 5, 38, 500/- as estimated by the Surveyor whereas the Insurance Company has accepted only a sum of Rs. 4, 13, 500/-. This Court noticed that there is no discussion on this aspect of the matter in the order of the National Commission and issued show cause why the case should not be remanded to the National Commission for a decision on the question. On perusal of the orders passed by the State Commission and the National Commission and on consideration of the contentions raised by learned Counsel for the parties it is our considered view that the National Commission while disposing of the first appeal filed under Section 21 of the Act should have considered the question as noted above raised on behalf of the appellant and should have passed a reasoned order. Thus the order under challenge is not sustainable and has to be vacated. Accordingly, the appeal is allowed. The order under challenge is set aside and the appeal is remitted to the National Consumer Disputes Redressal Commission for fresh disposal after giving opportunity of hearing to the parties and by passing a reasoned order in accordance with the law. | 1[ds]Thus the order under challenge is not sustainable and has to be vacated. Accordingly, the appeal is allowed. The order under challenge is set aside and the appeal is remitted to the National Consumer Disputes Redressal Commission for fresh disposal after giving opportunity of hearing to the parties and by passing a reasoned order in accordance with the lawOn perusal of the orders passed by the State Commission and the National Commission and on consideration of the contentions raised by learned Counsel for the parties it is our considered view that the National Commission while disposing of the first appeal filed under Section 21 of the Act should have considered the question as noted above raised on behalf of the appellant and should have passed a reasoned order. | 1 | 440 | 136 | ### Instruction:
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Leave granted We have heard learned for the parties. Feeling aggrieved by the order dated 25.8.1999 of the State Consumer Disputes Redressal Commission, Maharashtra in complaint No. C/228/1997 directing the appellant to pay a sum of Rs. 5, 38, 500/- with interest at the rate of 15% with effect from 1.4.1996 till the date of payment, the appellant National Insurance Co. Limited filed first appeal No. 59 of 2000 under Section 21 of the Consumer Protection Act, 1986 before the National Consumer Disputes Redressal Commission. The said appeal was summarily dismissed by a cryptic and unreasoned order which reads as follows : "Delay condoned. We have gone through the records of the case. We are disinclined to interfere with the order passed by the State Commission. The appeal is dismissed." Hence this appeal. In the order passed on 18th September, 2000 this Court while issuing notice to the respondent took note of the contention raised by the learned Counsel of the appellant that under the proviso to Section 64UM of the Insurance Act, 1938 it is open to the Insurance Company to dispute the correctness of the estimates of loss as made by the Surveyor and that the State Commission was wrong in directing the Insurance Company to pay the entire amount of Rs. 5, 38, 500/- as estimated by the Surveyor whereas the Insurance Company has accepted only a sum of Rs. 4, 13, 500/-. This Court noticed that there is no discussion on this aspect of the matter in the order of the National Commission and issued show cause why the case should not be remanded to the National Commission for a decision on the question. On perusal of the orders passed by the State Commission and the National Commission and on consideration of the contentions raised by learned Counsel for the parties it is our considered view that the National Commission while disposing of the first appeal filed under Section 21 of the Act should have considered the question as noted above raised on behalf of the appellant and should have passed a reasoned order. Thus the order under challenge is not sustainable and has to be vacated. Accordingly, the appeal is allowed. The order under challenge is set aside and the appeal is remitted to the National Consumer Disputes Redressal Commission for fresh disposal after giving opportunity of hearing to the parties and by passing a reasoned order in accordance with the law.
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Thus the order under challenge is not sustainable and has to be vacated. Accordingly, the appeal is allowed. The order under challenge is set aside and the appeal is remitted to the National Consumer Disputes Redressal Commission for fresh disposal after giving opportunity of hearing to the parties and by passing a reasoned order in accordance with the lawOn perusal of the orders passed by the State Commission and the National Commission and on consideration of the contentions raised by learned Counsel for the parties it is our considered view that the National Commission while disposing of the first appeal filed under Section 21 of the Act should have considered the question as noted above raised on behalf of the appellant and should have passed a reasoned order.
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KAIKHOSROU(CHICK) KAVASJI FRAMJI AND ANR Vs. UNION OF INDIA AND ANR | be, by filing civil suit in the Civil Court. The respondents cannot now be permitted to go back from their statement and take recourse to a remedy of summary procedure under the PP Act, which is otherwise not available to them. 69. Fourth, this Court while granting special leave to appeal on 03.08.2009 had also granted liberty to respondent No.1 (Union of India) to file civil suit against the appellants, if they are so advised. It was, however, not resorted to. 70. Fifth, the effect of quashing the resumption notice dated 21.01.1971 issued by the respondents by the High Court vide order dated 05.02.1979/06.02.1979 in relation to the suit property was that respondent No.1 (Union of India) was not entitled to resort to any kind of summary remedy to evict the appellants from the suit property not only under the Bombay Land Requisition Act, 1948 but also under the PP Act because the PP Act also provides similar summary remedy of eviction. 71. Sixth, the Civil Court alone could try and decide the question of declaration of ownership of any immovable property between the parties and such disputes could not be decided in summary proceedings under the PP Act. 72. This takes us to examine another question raised by the respondents as to whether judgment rendered by the Bombay High Court dated 06.02.1979 stood merged in the order of this Court dated 04.08.1998. In our view, it does not merge. 73. In our view, the principle of merger is fairly well settled. For merger to operate, the superior court must go into the merits of the issues decided by the subordinate court and record finding/s one way or other on its merits. If this is not done by the superior court, a plea of merger has no application in such a case and the order of subordinate court would continue to hold the field (see Shanmugaval Nadar vs. State of Tamil Nadu [1989 (4) SCC 187 ]. 74. In our view, this court while disposing of the appeals by its order dated 04.08.1998, did not go into the merits of the various contentions which were decided by the High Court in its order dated 06.02.1979 and disposed of the appeal on the statement made by the respondents through the Solicitor General that respondent No.1 (Union of India) would take recourse to the remedy of the civil court by filing a civil suit. 75. Indeed, in the light of such statement made by the respondents (who were appellants in the appeal), which resulted in disposal of their appeal, the respondents themselves did not call upon this Court to examine the merits of the issues raised by them in their appeals. In such a situation, there was no occasion for this Court to apply the mind to the merits much less to record any finding on any of the issues arising in the appeal. In this view of the matter, the principle of merger could not operate. 76. Now coming to another argument, the learned counsel for the respondents contended that there lies a distinction between the two types of Tribunals -one which exercises powers only when it is shown that certain state of facts exist and other which has jurisdiction to determine whether the preliminary state of facts exists as well as it has the jurisdiction to proceed further to do something more as explained in the case reported in Chaube Jagdish Prasad vs. Ganga Prasad Chaturvedi 1959 (supp) 1 SCR 733 pages 743-744. 77. It is on the basis of this submission, learned counsel contended that the Estate Officer has jurisdiction to examine the facts of this case in Section 4 proceedings under the Act. 78. We do not agree. In our opinion, once the Constitution Bench in the case of Kaiser-I Hind (supra) after examining the provisions of the PP Act has laid down the law as to how the PP Act operates and needs to be applied, all the issues arising under the PP Act has to be examined in the light of the law which deals with the PP Act. 79. The law laid down in Chaube Jagdish Prasad (supra) relied on by the learned counsel for the respondents was entirely on different context and has no application for deciding the issue involved in this appeal. 80. Yet, last submission of the learned counsel for the respondents that the writ petition was not maintainable to challenge the notice issued under Section 4 of the PP Act has no merit and deserves rejection. Suffice it to say, firstly, the High Court having entertained the writ petition and dismissing it on merits, this objection does not survive for consideration and second, in the light of long line of decisions on this question, a writ petition to question the legality and correctness of the notice issued under any Act is no bar in entertaining the writ petition in appropriate case. The case at hand was regarded as an appropriate case for entertaining the writ petition [see -Siemens Ltd. vs. State of Maharashtra 2006 (12) SCC 33 and Whirlpool Corporation vs. Registrar of Trade Marks (1998) 8 SCC 1 ]. 81. Before parting, we consider it apposite to mention that we have set out the facts of the case only for the purpose of appreciating and deciding the legal issue arising in the appeal namely - the validity of issuance of notice under Section 4 of the PP Act and not beyond it. We have not examined the rival claims of the parties over the property in question on merits and nor have recorded any finding on the rival claims. 82. In this view of the matter, whenever the question of ownership of the rights of the parties will be gone into by the concerned court, it shall decide the said question/s strictly on the basis of pleadings and the evidence adduced by the parties in accordance with law uninfluenced by any observations made by the High Court and this Court. | 1[ds]44. Having heard the learned counsel for the parties and on perusal of the record of the case including the written submissions, we find force in the submissions urged by the learned counsel for the appellants (writ petitioners)47. Though, in Express Newspaper case (supra) several other issues relating to Fundamental Rights conferred on the citizens under Article 19 (1) (a) and (g) of the Constitution and its violation qua State fell for consideration and were decided, this Court was also called upon to decide the legality and correctness of the notice issued by the Government of India through their officers in their capacity as the lessors of the land in question demanding therein a right of re-entry under the terms of the lease deed on the demised land from the lessee (writ petitioner of the case)48. It is this issue, which was extensively dealt in the context of civil law as also the special laws, which provides for taking recourse to the summary remedy by the State to take possession of the State land from its occupants.50. At this stage, it is necessary to deal with one objection raised by learned Additional Solicitor General on the aforementioned statement of law laid down in Express Newspaper case (supra)51. The objection of learned counsel for the respondent was that the view expressed by A.P. Sen J. in Paras 86-87 could at best be regarded as his own view but not the view of the Court by majority because other two learned Judges (E.S. Venkataramiah J. and R.B. Mishra J.) did not express any opinion on this question. It is for this reason the learned counsel submits that this Court should not place any reliance on the statement of law laid down in Paras 86-8756. Keeping in view the reasoning of Lord Esher M.R., when we examine the statement of law laid down in Express Newspaper decision (supra), we are of the considered view that the reasoning of A.P. Sen J. contained in Paraa 86-87 is the law laid down on behalf of all the three Judges. It is a law by majority and is thus a law laid down by the Court under Article 141 of the Constitution57. It is for the reason that first, though the lead judgment was authored by A.P. Sen J., the other two Judges concurred with the view and the reasoning of A.P. Sen J. Second, both the concurring Judges also expressed their individual views on the question on the same lines on which A.P. Sen J. expressed his view and the Third, there is no dissent inter se Lordships on any issue much less on the issue with which we are concerned in this appeal58. It is for these reasons, we are of the considered view that law laid down in the lead judgment in Express Newspaper (supra) is the law by three Honble Judges who constituted the Bench and thus binds all the Courts in the country under Article 141 of the Constitution. It satisfies the test laid down by Lord Esher M.R. in the case of The Guardian (supra)59. The question involved in Express Newspaper case (supra) in relation to remedy of the State qua person in possession of the land was again considered by a Bench consisted of three Judges in a case reported in State of Rajasthan vs. Padavati Devi [supra]60. In that case also, the question arose as to whether the State Government can take recourse to a summary remedy of eviction of a person under the State Revenue Laws from the land when such person raises a bona fide dispute about his right to remain in occupation over such land. Their Lordship held that in such a situation, the summary remedy to evict such person under the Act couldnt be resorted to64. Keeping in view the statement of law laid down by this Court in cited decisions supra, when we examine the facts of the case in hand, we have no hesitation in holding that the appellants have raised a bona fide dispute on the question of ownership of the suit property qua respondent No.1 (Union of India)65. A fortiori, in such case, respondent No. 2 has no jurisdiction to invoke the powers under section 4 of the PP Act by resorting to a summary procedure prescribed in the PP Act by sending a notice under Section 4 of the PP Act for appellants eviction from the suit property. This we say for the following six reasons66. First, the facts set out above and the documents filed in their support, in no uncertain terms, establish that there exists a bona fide long standing dispute as to who is the owner of the suit property -the appellants or Respondent No.1 (Union of India)67. Second, respondent No.1 itself admitted that there exists a bona fide dispute between the appellants and respondent No.1 (Union of India) over the suit property involving disputed questions of facts (see Paras 7, 8 & 18 of the Review Petition filed by Respondent No.1 in Civil Appeal Nos.608-612 against the appellants in respect of suit property in this Court)68. Third, respondent No.1 (Union of India) itself stated in this Court in earlier round of litigation while disposing of their Civil Appeal Nos.609, 611-613, 614 and 621 of 1980 that they would seek dispossession of the appellants from the property in question in accordance with law and, if need be, by filing civil suit in the Civil Court. The respondents cannot now be permitted to go back from their statement and take recourse to a remedy of summary procedure under the PP Act, which is otherwise not available to them69. Fourth, this Court while granting special leave to appeal on 03.08.2009 had also granted liberty to respondent No.1 (Union of India) to file civil suit against the appellants, if they are so advised. It was, however, not resorted to70. Fifth, the effect of quashing the resumption notice dated 21.01.1971 issued by the respondents by the High Court vide order dated 05.02.1979/06.02.1979 in relation to the suit property was that respondent No.1 (Union of India) was not entitled to resort to any kind of summary remedy to evict the appellants from the suit property not only under the Bombay Land Requisition Act, 1948 but also under the PP Act because the PP Act also provides similar summary remedy of eviction71. Sixth, the Civil Court alone could try and decide the question of declaration of ownership of any immovable property between the parties and such disputes could not be decided in summary proceedings under the PP Act73. In our view, the principle of merger is fairly well settled. For merger to operate, the superior court must go into the merits of the issues decided by the subordinate court and record finding/s one way or other on its merits. If this is not done by the superior court, a plea of merger has no application in such a case and the order of subordinate court would continue to hold the field (see Shanmugaval Nadar vs. State of Tamil Nadu [1989 (4) SCC 187 ]74. In our view, this court while disposing of the appeals by its order dated 04.08.1998, did not go into the merits of the various contentions which were decided by the High Court in its order dated 06.02.1979 and disposed of the appeal on the statement made by the respondents through the Solicitor General that respondent No.1 (Union of India) would take recourse to the remedy of the civil court by filing a civil suit75. Indeed, in the light of such statement made by the respondents (who were appellants in the appeal), which resulted in disposal of their appeal, the respondents themselves did not call upon this Court to examine the merits of the issues raised by them in their appeals. In such a situation, there was no occasion for this Court to apply the mind to the merits much less to record any finding on any of the issues arising in the appeal. In this view of the matter, the principle of merger could not operate76. Now coming to another argument, the learned counsel for the respondents contended that there lies a distinction between the two types of Tribunals -one which exercises powers only when it is shown that certain state of facts exist and other which has jurisdiction to determine whether the preliminary state of facts exists as well as it has the jurisdiction to proceed further to do something more as explained in the case reported in Chaube Jagdish Prasad vs. Ganga Prasad Chaturvedi 1959 (supp) 1 SCR 733 pages 743-74477. It is on the basis of this submission, learned counsel contended that the Estate Officer has jurisdiction to examine the facts of this case in Section 4 proceedings under the Act78. We do not agree. In our opinion, once the Constitution Bench in the case of Kaiser-I Hind (supra) after examining the provisions of the PP Act has laid down the law as to how the PP Act operates and needs to be applied, all the issues arising under the PP Act has to be examined in the light of the law which deals with the PP Act.79. The law laid down in Chaube Jagdish Prasad (supra) relied on by the learned counsel for the respondents was entirely on different context and has no application for deciding the issue involved in this appeal80. Yet, last submission of the learned counsel for the respondents that the writ petition was not maintainable to challenge the notice issued under Section 4 of the PP Act has no merit and deserves rejection. Suffice it to say, firstly, the High Court having entertained the writ petition and dismissing it on merits, this objection does not survive for consideration and second, in the light of long line of decisions on this question, a writ petition to question the legality and correctness of the notice issued under any Act is no bar in entertaining the writ petition in appropriate case. The case at hand was regarded as an appropriate case for entertaining the writ petition [see -Siemens Ltd. vs. State of Maharashtra 2006 (12) SCC 33 and Whirlpool Corporation vs. Registrar of Trade Marks (1998) 8 SCC 1 ]81. Before parting, we consider it apposite to mention that we have set out the facts of the case only for the purpose of appreciating and deciding the legal issue arising in the appeal namely - the validity of issuance of notice under Section 4 of the PP Act and not beyond it. We have not examined the rival claims of the parties over the property in question on merits and nor have recorded any finding on the rival claims82. In this view of the matter, whenever the question of ownership of the rights of the parties will be gone into by the concerned court, it shall decide the said question/s strictly on the basis of pleadings and the evidence adduced by the parties in accordance with law uninfluenced by any observations made by the High Court and this Court. | 1 | 7,927 | 2,035 | ### 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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be, by filing civil suit in the Civil Court. The respondents cannot now be permitted to go back from their statement and take recourse to a remedy of summary procedure under the PP Act, which is otherwise not available to them. 69. Fourth, this Court while granting special leave to appeal on 03.08.2009 had also granted liberty to respondent No.1 (Union of India) to file civil suit against the appellants, if they are so advised. It was, however, not resorted to. 70. Fifth, the effect of quashing the resumption notice dated 21.01.1971 issued by the respondents by the High Court vide order dated 05.02.1979/06.02.1979 in relation to the suit property was that respondent No.1 (Union of India) was not entitled to resort to any kind of summary remedy to evict the appellants from the suit property not only under the Bombay Land Requisition Act, 1948 but also under the PP Act because the PP Act also provides similar summary remedy of eviction. 71. Sixth, the Civil Court alone could try and decide the question of declaration of ownership of any immovable property between the parties and such disputes could not be decided in summary proceedings under the PP Act. 72. This takes us to examine another question raised by the respondents as to whether judgment rendered by the Bombay High Court dated 06.02.1979 stood merged in the order of this Court dated 04.08.1998. In our view, it does not merge. 73. In our view, the principle of merger is fairly well settled. For merger to operate, the superior court must go into the merits of the issues decided by the subordinate court and record finding/s one way or other on its merits. If this is not done by the superior court, a plea of merger has no application in such a case and the order of subordinate court would continue to hold the field (see Shanmugaval Nadar vs. State of Tamil Nadu [1989 (4) SCC 187 ]. 74. In our view, this court while disposing of the appeals by its order dated 04.08.1998, did not go into the merits of the various contentions which were decided by the High Court in its order dated 06.02.1979 and disposed of the appeal on the statement made by the respondents through the Solicitor General that respondent No.1 (Union of India) would take recourse to the remedy of the civil court by filing a civil suit. 75. Indeed, in the light of such statement made by the respondents (who were appellants in the appeal), which resulted in disposal of their appeal, the respondents themselves did not call upon this Court to examine the merits of the issues raised by them in their appeals. In such a situation, there was no occasion for this Court to apply the mind to the merits much less to record any finding on any of the issues arising in the appeal. In this view of the matter, the principle of merger could not operate. 76. Now coming to another argument, the learned counsel for the respondents contended that there lies a distinction between the two types of Tribunals -one which exercises powers only when it is shown that certain state of facts exist and other which has jurisdiction to determine whether the preliminary state of facts exists as well as it has the jurisdiction to proceed further to do something more as explained in the case reported in Chaube Jagdish Prasad vs. Ganga Prasad Chaturvedi 1959 (supp) 1 SCR 733 pages 743-744. 77. It is on the basis of this submission, learned counsel contended that the Estate Officer has jurisdiction to examine the facts of this case in Section 4 proceedings under the Act. 78. We do not agree. In our opinion, once the Constitution Bench in the case of Kaiser-I Hind (supra) after examining the provisions of the PP Act has laid down the law as to how the PP Act operates and needs to be applied, all the issues arising under the PP Act has to be examined in the light of the law which deals with the PP Act. 79. The law laid down in Chaube Jagdish Prasad (supra) relied on by the learned counsel for the respondents was entirely on different context and has no application for deciding the issue involved in this appeal. 80. Yet, last submission of the learned counsel for the respondents that the writ petition was not maintainable to challenge the notice issued under Section 4 of the PP Act has no merit and deserves rejection. Suffice it to say, firstly, the High Court having entertained the writ petition and dismissing it on merits, this objection does not survive for consideration and second, in the light of long line of decisions on this question, a writ petition to question the legality and correctness of the notice issued under any Act is no bar in entertaining the writ petition in appropriate case. The case at hand was regarded as an appropriate case for entertaining the writ petition [see -Siemens Ltd. vs. State of Maharashtra 2006 (12) SCC 33 and Whirlpool Corporation vs. Registrar of Trade Marks (1998) 8 SCC 1 ]. 81. Before parting, we consider it apposite to mention that we have set out the facts of the case only for the purpose of appreciating and deciding the legal issue arising in the appeal namely - the validity of issuance of notice under Section 4 of the PP Act and not beyond it. We have not examined the rival claims of the parties over the property in question on merits and nor have recorded any finding on the rival claims. 82. In this view of the matter, whenever the question of ownership of the rights of the parties will be gone into by the concerned court, it shall decide the said question/s strictly on the basis of pleadings and the evidence adduced by the parties in accordance with law uninfluenced by any observations made by the High Court and this Court.
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property in this Court)68. Third, respondent No.1 (Union of India) itself stated in this Court in earlier round of litigation while disposing of their Civil Appeal Nos.609, 611-613, 614 and 621 of 1980 that they would seek dispossession of the appellants from the property in question in accordance with law and, if need be, by filing civil suit in the Civil Court. The respondents cannot now be permitted to go back from their statement and take recourse to a remedy of summary procedure under the PP Act, which is otherwise not available to them69. Fourth, this Court while granting special leave to appeal on 03.08.2009 had also granted liberty to respondent No.1 (Union of India) to file civil suit against the appellants, if they are so advised. It was, however, not resorted to70. Fifth, the effect of quashing the resumption notice dated 21.01.1971 issued by the respondents by the High Court vide order dated 05.02.1979/06.02.1979 in relation to the suit property was that respondent No.1 (Union of India) was not entitled to resort to any kind of summary remedy to evict the appellants from the suit property not only under the Bombay Land Requisition Act, 1948 but also under the PP Act because the PP Act also provides similar summary remedy of eviction71. Sixth, the Civil Court alone could try and decide the question of declaration of ownership of any immovable property between the parties and such disputes could not be decided in summary proceedings under the PP Act73. In our view, the principle of merger is fairly well settled. For merger to operate, the superior court must go into the merits of the issues decided by the subordinate court and record finding/s one way or other on its merits. If this is not done by the superior court, a plea of merger has no application in such a case and the order of subordinate court would continue to hold the field (see Shanmugaval Nadar vs. State of Tamil Nadu [1989 (4) SCC 187 ]74. In our view, this court while disposing of the appeals by its order dated 04.08.1998, did not go into the merits of the various contentions which were decided by the High Court in its order dated 06.02.1979 and disposed of the appeal on the statement made by the respondents through the Solicitor General that respondent No.1 (Union of India) would take recourse to the remedy of the civil court by filing a civil suit75. Indeed, in the light of such statement made by the respondents (who were appellants in the appeal), which resulted in disposal of their appeal, the respondents themselves did not call upon this Court to examine the merits of the issues raised by them in their appeals. In such a situation, there was no occasion for this Court to apply the mind to the merits much less to record any finding on any of the issues arising in the appeal. In this view of the matter, the principle of merger could not operate76. Now coming to another argument, the learned counsel for the respondents contended that there lies a distinction between the two types of Tribunals -one which exercises powers only when it is shown that certain state of facts exist and other which has jurisdiction to determine whether the preliminary state of facts exists as well as it has the jurisdiction to proceed further to do something more as explained in the case reported in Chaube Jagdish Prasad vs. Ganga Prasad Chaturvedi 1959 (supp) 1 SCR 733 pages 743-74477. It is on the basis of this submission, learned counsel contended that the Estate Officer has jurisdiction to examine the facts of this case in Section 4 proceedings under the Act78. We do not agree. In our opinion, once the Constitution Bench in the case of Kaiser-I Hind (supra) after examining the provisions of the PP Act has laid down the law as to how the PP Act operates and needs to be applied, all the issues arising under the PP Act has to be examined in the light of the law which deals with the PP Act.79. The law laid down in Chaube Jagdish Prasad (supra) relied on by the learned counsel for the respondents was entirely on different context and has no application for deciding the issue involved in this appeal80. Yet, last submission of the learned counsel for the respondents that the writ petition was not maintainable to challenge the notice issued under Section 4 of the PP Act has no merit and deserves rejection. Suffice it to say, firstly, the High Court having entertained the writ petition and dismissing it on merits, this objection does not survive for consideration and second, in the light of long line of decisions on this question, a writ petition to question the legality and correctness of the notice issued under any Act is no bar in entertaining the writ petition in appropriate case. The case at hand was regarded as an appropriate case for entertaining the writ petition [see -Siemens Ltd. vs. State of Maharashtra 2006 (12) SCC 33 and Whirlpool Corporation vs. Registrar of Trade Marks (1998) 8 SCC 1 ]81. Before parting, we consider it apposite to mention that we have set out the facts of the case only for the purpose of appreciating and deciding the legal issue arising in the appeal namely - the validity of issuance of notice under Section 4 of the PP Act and not beyond it. We have not examined the rival claims of the parties over the property in question on merits and nor have recorded any finding on the rival claims82. In this view of the matter, whenever the question of ownership of the rights of the parties will be gone into by the concerned court, it shall decide the said question/s strictly on the basis of pleadings and the evidence adduced by the parties in accordance with law uninfluenced by any observations made by the High Court and this Court.
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Rakesh Baban Borhade Vs. The State Of Maharashtra & Anr Etc.Etc | R. Banumathi, J. 1. Leave granted. 2. These appeals by special leave challenge the Order dated 1.4.2014 passed by the Bombay High Court, in and by which, the High Court dismissed the anticipatory bail applications filed by the appellant while granting anticipatory bail to two other persons (Suresh Vallabhji Vora and Rajnikant N. Parekh) arrayed as accused in the same case. 3. Case of the prosecution arises out of a private complaint filed by M/s. Merit Magnum Construction alleging commission of offences against the appellant and other accused u/s 420, 406, 423, 424 r/w Section 34 IPC wherein directions were issued by the Magistrate u/s 156 (3) Cr.P.C. for proper investigation. Case of the complainant is that on 21.12.2005, the seven companies through their Directors entered into a Memorandum of Understanding (MOU) to sell the rights of their land to the complainant -M/s. Merit Magnum Construction, formerly M/s Vimal Builders. Till 2006, the complainant is said to have paid a sum of Rs.7,22,12,256/- to the said companies. It is alleged that inspite of the timely payment of Rs.7,22,12,256/-, the accused persons did not transfer the lands as promised in the MOU. It is the case of the complainant that during the period from 2005 to April 2013, the Directors and shareholders of the above mentioned seven companies– Suresh V. Vora, Rajnikant N. Parekh and the appellant– Rakesh Baban Borhade with common intention to deceive the complainant company avoided transferring ownership rights, interest, shares and related documents to the complainant company and also deliberately suppressed several transactions relating to the property prior to MOU.4. The Sessions Court dismissed the anticipatory bail application filed by the appellant and other accused. Aggrieved by the same, the accused persons moved the High Court, which vide its impugned order dated 1.4.2014 while granting bail to the other accused persons, dismissed the application of the appellant. The appellant is before us, assailing the correctness of the impugned order. 5. Mr. Ravindra Shrivastava, learned Senior Counsel for the appellant contended that the appellant became Director of Alpha Omega Home Fund Pvt. Ltd. only in November 2010 and that he was not a party to the MOU dated 21.12.2005 as at that time he was neither a shareholder nor a director of the said seven companies. Learned senior counsel has drawn our attention to the challans and cheques at pages 283-288 of the SLP paperbook and submitted that those cheques were meant for the companies mentioned therein and the appellant was not a beneficiary of those cheques. It was urged that in any event, entire case is based on documentary evidence which is in the form of MOU dated 21.12.2005 and the registered sale agreements and bank cheques and challans and hence, the custody of the appellant is not at all required and the High Court was not justified in refusing anticipatory bail to the appellant.6. Mr. Shekhar Naphade, learned Senior Counsel for the second respondent submitted that to unearth the trail of the transactions and the money received by the appellant, a thorough interrogation is necessary and the High Court rightly declined anticipatory bail to the appellant. 7. We have considered the submissions of the learned counsel for the appearing parties and perused the impugned order and the materials on record. 8. Sub-section (1) of Section 438 has been amended by Cr.P.C. (Amendment) Act 2005 (Act 25 of 2005), by which old sub-section (1) has been substituted by new sub-sections (1), (1A) and (1B). The guiding factors for grant of anticipatory bail have been mentioned in sub-section (1) of Section 438 itself. The Court would grant or refuse anticipatory bail after taking into consideration the following factors, namely:- the nature and gravity of the accusation; the antecedents of the applicant including the fact as to whether he has previously undergone imprisonment on conviction by a Court in respect of any cognizable offence; the possibility of the applicant to flee from justice; and where the accusation has been made with the object of injuring or humiliating the applicant by having him so arrested. Anticipatory bail is not to be granted as a matter of rule, but should be granted only when a special case is made out and the Court is convinced that the accused would not misuse his liberty. After analysing various judgments and guidelines in Siddharam Satlingappa Mhetre vs. State of Maharashtra and Ors., (2011) 1 SCC 694 , this Court has enumerated the parameters that can be taken into consideration by the courts while dealing with the anticipatory bail. 9. In the light of the parameters laid down in Siddharam Satlingappa Mhetre’s case, we have considered rival contentions of the parties. The dispute between the parties revolves around MOU dated 21.12.2005 and the previous MOU dated 3.2.2005. The dispute is purely a business transaction based on the said MOUs. According to the appellant-accused, he sold the land belonging to his father in Survey No.75/18 to M/s. Siddhivinayak Enterprises by sale deed dated 31.12.2007 as legal representative of his father and there is no illegality involved in it. Whether the appellant-accused has sold the property to M/s. Siddhivinayak Enterprises in his capacity as the legal heir of his father or as a representative of the company and whether there was any dishonest intention to cheat the complainant remains to be seen only when the parties adduce oral and documentary evidence. 10. When the Special Leave Petitions came up for hearing, by order dated 9.5.2014 interim protection from arrest was granted to the appellant-accused and without prejudice to the contentions, the appellant was directed to deposit a sum of rupees one crore in the Registry of the Supreme Court and in compliance of the said order, the appellant has deposited rupees one crore. Since the transaction is in the nature of commercial transaction and since the appellant has also shown his bonafide by depositing rupees one crore, pending further investigation, in our view, anticipatory bail could be granted to the appellant. | 1[ds]10. When the Special Leave Petitions came up for hearing, by order dated 9.5.2014 interim protection from arrest was granted to theand without prejudice to the contentions, the appellant was directed to deposit a sum of rupees one crore in the Registry of the Supreme Court and in compliance of the said order, the appellant has deposited rupees one crore. Since the transaction is in the nature of commercial transaction and since the appellant has also shown his bonafide by depositing rupees one crore, pending further investigation, in our view, anticipatory bail could be granted to the appellant. | 1 | 1,104 | 111 | ### Instruction:
Decide if the appeal in the case proceeding is more likely to be successful (1) or unsuccessful (0), and then justify your decision by focusing on essential sentences in the document.
### Input:
R. Banumathi, J. 1. Leave granted. 2. These appeals by special leave challenge the Order dated 1.4.2014 passed by the Bombay High Court, in and by which, the High Court dismissed the anticipatory bail applications filed by the appellant while granting anticipatory bail to two other persons (Suresh Vallabhji Vora and Rajnikant N. Parekh) arrayed as accused in the same case. 3. Case of the prosecution arises out of a private complaint filed by M/s. Merit Magnum Construction alleging commission of offences against the appellant and other accused u/s 420, 406, 423, 424 r/w Section 34 IPC wherein directions were issued by the Magistrate u/s 156 (3) Cr.P.C. for proper investigation. Case of the complainant is that on 21.12.2005, the seven companies through their Directors entered into a Memorandum of Understanding (MOU) to sell the rights of their land to the complainant -M/s. Merit Magnum Construction, formerly M/s Vimal Builders. Till 2006, the complainant is said to have paid a sum of Rs.7,22,12,256/- to the said companies. It is alleged that inspite of the timely payment of Rs.7,22,12,256/-, the accused persons did not transfer the lands as promised in the MOU. It is the case of the complainant that during the period from 2005 to April 2013, the Directors and shareholders of the above mentioned seven companies– Suresh V. Vora, Rajnikant N. Parekh and the appellant– Rakesh Baban Borhade with common intention to deceive the complainant company avoided transferring ownership rights, interest, shares and related documents to the complainant company and also deliberately suppressed several transactions relating to the property prior to MOU.4. The Sessions Court dismissed the anticipatory bail application filed by the appellant and other accused. Aggrieved by the same, the accused persons moved the High Court, which vide its impugned order dated 1.4.2014 while granting bail to the other accused persons, dismissed the application of the appellant. The appellant is before us, assailing the correctness of the impugned order. 5. Mr. Ravindra Shrivastava, learned Senior Counsel for the appellant contended that the appellant became Director of Alpha Omega Home Fund Pvt. Ltd. only in November 2010 and that he was not a party to the MOU dated 21.12.2005 as at that time he was neither a shareholder nor a director of the said seven companies. Learned senior counsel has drawn our attention to the challans and cheques at pages 283-288 of the SLP paperbook and submitted that those cheques were meant for the companies mentioned therein and the appellant was not a beneficiary of those cheques. It was urged that in any event, entire case is based on documentary evidence which is in the form of MOU dated 21.12.2005 and the registered sale agreements and bank cheques and challans and hence, the custody of the appellant is not at all required and the High Court was not justified in refusing anticipatory bail to the appellant.6. Mr. Shekhar Naphade, learned Senior Counsel for the second respondent submitted that to unearth the trail of the transactions and the money received by the appellant, a thorough interrogation is necessary and the High Court rightly declined anticipatory bail to the appellant. 7. We have considered the submissions of the learned counsel for the appearing parties and perused the impugned order and the materials on record. 8. Sub-section (1) of Section 438 has been amended by Cr.P.C. (Amendment) Act 2005 (Act 25 of 2005), by which old sub-section (1) has been substituted by new sub-sections (1), (1A) and (1B). The guiding factors for grant of anticipatory bail have been mentioned in sub-section (1) of Section 438 itself. The Court would grant or refuse anticipatory bail after taking into consideration the following factors, namely:- the nature and gravity of the accusation; the antecedents of the applicant including the fact as to whether he has previously undergone imprisonment on conviction by a Court in respect of any cognizable offence; the possibility of the applicant to flee from justice; and where the accusation has been made with the object of injuring or humiliating the applicant by having him so arrested. Anticipatory bail is not to be granted as a matter of rule, but should be granted only when a special case is made out and the Court is convinced that the accused would not misuse his liberty. After analysing various judgments and guidelines in Siddharam Satlingappa Mhetre vs. State of Maharashtra and Ors., (2011) 1 SCC 694 , this Court has enumerated the parameters that can be taken into consideration by the courts while dealing with the anticipatory bail. 9. In the light of the parameters laid down in Siddharam Satlingappa Mhetre’s case, we have considered rival contentions of the parties. The dispute between the parties revolves around MOU dated 21.12.2005 and the previous MOU dated 3.2.2005. The dispute is purely a business transaction based on the said MOUs. According to the appellant-accused, he sold the land belonging to his father in Survey No.75/18 to M/s. Siddhivinayak Enterprises by sale deed dated 31.12.2007 as legal representative of his father and there is no illegality involved in it. Whether the appellant-accused has sold the property to M/s. Siddhivinayak Enterprises in his capacity as the legal heir of his father or as a representative of the company and whether there was any dishonest intention to cheat the complainant remains to be seen only when the parties adduce oral and documentary evidence. 10. When the Special Leave Petitions came up for hearing, by order dated 9.5.2014 interim protection from arrest was granted to the appellant-accused and without prejudice to the contentions, the appellant was directed to deposit a sum of rupees one crore in the Registry of the Supreme Court and in compliance of the said order, the appellant has deposited rupees one crore. Since the transaction is in the nature of commercial transaction and since the appellant has also shown his bonafide by depositing rupees one crore, pending further investigation, in our view, anticipatory bail could be granted to the appellant.
### Response:
1
### Explanation:
10. When the Special Leave Petitions came up for hearing, by order dated 9.5.2014 interim protection from arrest was granted to theand without prejudice to the contentions, the appellant was directed to deposit a sum of rupees one crore in the Registry of the Supreme Court and in compliance of the said order, the appellant has deposited rupees one crore. Since the transaction is in the nature of commercial transaction and since the appellant has also shown his bonafide by depositing rupees one crore, pending further investigation, in our view, anticipatory bail could be granted to the appellant.
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Indian Oil Corp.Ltd Vs. M/S Raja Transport(P) Ltd | any prescribed time limit, within a reasonable time, will enable the aggrieved party to file a petition under Section 11(6) of the Act.(v) Where the appointment procedure has been agreed between the parties, but the cause of action for invoking the jurisdiction of the Chief Justice or his designate under clauses (a), (b) or (c) of sub-section (6) has not arisen, then the question of Chief Justice or his designate exercising power under sub-section (6) does not arise. The condition precedent for approaching the Chief Justice or his designate for taking necessary measures under sub-section (6) is that (i) a party failing to act as required under the agreed appointment procedure; or (ii) the parties (or the two appointed arbitrators), failing to reach an agreement expected of them under the agreed appointment procedure; or (iii) a person/institution who has been entrusted with any function under the agreed appointment procedure, failing to perform such function.(vi) The Chief Justice or his designate while exercising power under sub-section (6) of section 11 shall endeavour to give effect to the appointment procedure prescribed in the arbitration clause.(vii) If circumstances exist, giving rise to justifiable doubts as to the independence and impartiality of the person nominated, or if other circumstances warrant appointment of an independent arbitrator by ignoring the procedure prescribed, the Chief Justice or his designate may, for reasons to be recorded ignore the designated arbitrator and appoint someone else. Re : Question (iii) 22. In this case, the respondent approached the Chief Justice of the High Court by alleging that it had acted in terms of the agreed procedure under the arbitration agreement, and that the appellant had failed to act as required under the appointment procedure. Therefore, the respondent invoked the power of the Chief Justice under sub-section (6) of section 11. In view of it, what falls for consideration is whether the appellant had failed to act as required under the appointment procedure. This pre-supposes that the respondent had called upon the appellant to act as required under the agreed appointment procedure. Let us examine whether the respondent had in fact called upon the appellant to act in accordance with the agreed procedure. 23. When the dispute arose, the respondent did not seek arbitration, but went to civil court. It was the appellant who sought reference to arbitration in terms of the arbitration agreement. The order dated 16.11.2005 of the Civil Judge, Junior Division directing reference to arbitration within two months from 16.11.2005 was challenged by both the parties. The District Judge, Dehradun by its order dated 20.1.2006 directed the parties to refer the dispute to arbitrator as per agreement, within two months. Therefore, the order dated 16.11.2005 stood merged with the order of the District Judge dated 20.1.2006, which directed reference of the dispute to arbitration as per the agreement, within two months. But there was no direction by the court to appoint an independent arbitrator contrary to the terms of the arbitration agreement. In view of the order dated 20.1.2006, the respondent ought to have referred the dispute to the Director (Marketing) of the appellant within two months from 20.1.2006. It failed to do so. Therefore, it was the respondent who failed to act in terms of the agreed procedure and not the appellant. In fact, as the Arbitrator was already identified, there was no need for the respondent to ask the appellant to act in accordance with the agreed procedure. On the other hand, the respondent ought to have directly referred the disputes to the Director (Marketing) of the appellant corporation in terms of the arbitration agreement. 24. We may now deal with the notice dated 4.1.2006 by which the respondent notified the appellant that it was not willing for appointment of arbitrator in terms of the agreement and that both should therefore hold discussions to decide upon an independent arbitrator. The letter dated 4.1.2006 cannot, be construed as a step taken by the respondent for invoking arbitration in terms of the arbitration agreement, as it is a demand in violation of the terms of arbitration agreement. It required the appellant to agree upon an arbitrator, contrary to the provisions of the arbitration agreement. If the respondent wanted to invoke arbitration in terms of the arbitration agreement, it ought to have referred the disputes to the Director (Marketing) in term of section 69 of the contract agreement for arbitration. Alternatively, the respondent ought to have at least called upon the appellant, to refer the dispute to the Director (Marketing) for arbitration. In the absence of any such a demand under clause 69, it cannot be said that the respondent invoked the arbitration clause or took necessary steps for invoking arbitration in terms of the arbitration agreement. If the respondent had called upon the appellant to act in a manner contrary to the appointment procedure mentioned in the arbitration agreement, it cannot be said that the appellant failed to respond and act as required under the agreed procedure. As the letter dated 4.1.2006 could not be construed as a valid demand for arbitration, the finding of the learned Chief Justice that non-compliance with such request would enable the respondent to appoint an independent arbitrator, is clearly illegal. What is significant is that even subsequent to the order dated 20.1.2006 passed by the District Court, the respondent did not refer the disputes to the Director (Marketing) of the appellant nor called upon the appellant to refer to the disputes in terms of the arbitration agreement, nor withdraw its earlier letter dated 4.1.2006 demanding appointment of an independent arbitrator contrary to the agreed procedure under the arbitration agreement. 25. In the circumstances, the third question is answered in the negative. Consequently, the learned Chief Justice erred in having proceeded on the basis that the respondent had performed its duty in terms of the arbitration agreement in seeking reference to arbitration and that the appellant had failed to act in the matter and therefore, there was justification for appointing an independent arbitrator. | 1[ds]13. We find no bar under the new Act, for an arbitration agreement providing for an employee of a government/ statutory corporation/public sector undertaking (which is a party to the contract), acting as Arbitrator. Section 11(8) of the Act requires the Chief Justice or his designate, in appointing an arbitrator, to have due regard to "(a) any qualifications required of the arbitrator by the agreement of the parties; and (b) other considerations as are likely to secure the appointment of an independent or impartial arbitrator". Section 12(1) requires an Arbitrator, when approached in connection with his possible appointment, to disclose in writing any circumstances likely to give rise to justifiable doubts as to his independence or impartiality. Sub-section 12(3) enables the Arbitrator being challenged if (i) the circumstances give rise to justifiable doubts as to his independence or impartiality, or (ii) he does not possess the qualifications agreed to by the parties. Section 18 requires the Arbitrator to treat the parties with equality (that is to say without bias) and give each party full opportunity to present his case. Nothing in sections 11, 12, 18 or other provisions of the Act suggests that any provision in an arbitration agreement, naming the Arbitrator will be invalid if such named arbitrator is an employee of one of the parties to the arbitration agreement. Sub-section (2) of section 11 provides that parties are free to agree upon a procedure for appointment of arbitrator/s. Sub-section (6) provides that where a party fails to act, as required under the procedure prescribed, the Chief Justice or his designate can take necessary measures. Sub-section (8) gives the discretion to the Chief Justice/his designate to choose an arbitrator suited to meet the requirements of a particular case. The said power is in no way intended to nullify a specific term of arbitration agreement naming a particular person as arbitrator. The power under sub-section (8) is intended to be used keeping in view the terms of the arbitration agreement. The fact that the named arbitrator is an employee of one of the parties is not ipso facto a ground to raise a presumption of bias or partiality of lack of independence on his part.Before parting from this issue, we may however refer to a ground reality. Contractors in their anxiety to secure contracts from government/ statutory bodies/public sector undertakings, agree to arbitration clauses providing for employee-arbitrators. But when subsequently disputes arise, they balk at the idea of arbitration by such employee-arbitrators and tend to litigate to secure an "independent" arbitrator. The number of litigations seeking appointment of independent Arbitrator bears testimony to this vexed problem. It will be appropriate if governments/statutory authorities/public sector undertaking reconsider their policy providing for arbitration by employee-arbitrators in deference to the specific provisions of the new Act reiterating the need for independence and impartiality in Arbitrators. A general shift may in future be necessary for understanding the word "independent" as referring to someone not connected with either party. That may improve the credibility of Arbitration as an alternative dispute resolution process. Be that as it may.In the light of the above discussion, the scope of section 11 of the Act containing the scheme of appointment of arbitrators may be summarisedWhere the agreement provides for arbitration with three arbitrators (each party to appoint one arbitrator and the two appointed arbitrators to appoint a third arbitrator), in the event of a party failing to appoint an Arbitrator within 30 days from the receipt of a request from the other party (or the two nominated arbitrators failing to agree on the third arbitrator within 30 days from the date of the appointment), the Chief Justice or his designate will exercise power under sub-section (4) of section 11 of the Act.(ii) Where the agreement provides for arbitration by a sole arbitrator and the parties have not agreed upon any appointment procedure, the Chief Justice or his designate will exercise power under sub-section (5) of section 11, if the parties fail to agree on the arbitration within thirty days from the receipt of a request by a party from the other party.(iii) Where the arbitration agreement specifies the appointment procedure, then irrespective of whether the arbitration is by a sole arbitrator or by a three-member Tribunal, the Chief Justice or his designate will exercise power under sub-section (6) of section 11, if a party fails to act as required under the agreed procedure (or the parties or the two appointed arbitrators fail to reach an agreement expected of them under the agreed procedure or any person/institution fails to perform any function entrusted to him/it under that procedure).(iv) While failure of the other party to act within 30 days will furnish a cause of action to the party seeking arbitration to approach the Chief Justice or his designate in cases falling under sub-sections (4) & (5), such a time bound requirement is not found in sub-section (6) of section 11. The failure to act as per the agreed procedure within the time limit prescribed by the arbitration agreement, or in the absence of any prescribed time limit, within a reasonable time, will enable the aggrieved party to file a petition under Section 11(6) of the Act.(v) Where the appointment procedure has been agreed between the parties, but the cause of action for invoking the jurisdiction of the Chief Justice or his designate under clauses (a), (b) or (c) of sub-section (6) has not arisen, then the question of Chief Justice or his designate exercising power under sub-section (6) does not arise. The condition precedent for approaching the Chief Justice or his designate for taking necessary measures under sub-section (6) is that (i) a party failing to act as required under the agreed appointment procedure; or (ii) the parties (or the two appointed arbitrators), failing to reach an agreement expected of them under the agreed appointment procedure; or (iii) a person/institution who has been entrusted with any function under the agreed appointment procedure, failing to perform such function.(vi) The Chief Justice or his designate while exercising power under sub-section (6) of section 11 shall endeavour to give effect to the appointment procedure prescribed in the arbitration clause.(vii) If circumstances exist, giving rise to justifiable doubts as to the independence and impartiality of the person nominated, or if other circumstances warrant appointment of an independent arbitrator by ignoring the procedure prescribed, the Chief Justice or his designate may, for reasons to be recorded ignore the designated arbitrator and appoint someone else.In the circumstances, the third question is answered in the negative. Consequently, the learned Chief Justice erred in having proceeded on the basis that the respondent had performed its duty in terms of the arbitration agreement in seeking reference to arbitration and that the appellant had failed to act in the matter and therefore, there was justification for appointing an independent arbitrator. | 1 | 7,548 | 1,311 | ### 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:
any prescribed time limit, within a reasonable time, will enable the aggrieved party to file a petition under Section 11(6) of the Act.(v) Where the appointment procedure has been agreed between the parties, but the cause of action for invoking the jurisdiction of the Chief Justice or his designate under clauses (a), (b) or (c) of sub-section (6) has not arisen, then the question of Chief Justice or his designate exercising power under sub-section (6) does not arise. The condition precedent for approaching the Chief Justice or his designate for taking necessary measures under sub-section (6) is that (i) a party failing to act as required under the agreed appointment procedure; or (ii) the parties (or the two appointed arbitrators), failing to reach an agreement expected of them under the agreed appointment procedure; or (iii) a person/institution who has been entrusted with any function under the agreed appointment procedure, failing to perform such function.(vi) The Chief Justice or his designate while exercising power under sub-section (6) of section 11 shall endeavour to give effect to the appointment procedure prescribed in the arbitration clause.(vii) If circumstances exist, giving rise to justifiable doubts as to the independence and impartiality of the person nominated, or if other circumstances warrant appointment of an independent arbitrator by ignoring the procedure prescribed, the Chief Justice or his designate may, for reasons to be recorded ignore the designated arbitrator and appoint someone else. Re : Question (iii) 22. In this case, the respondent approached the Chief Justice of the High Court by alleging that it had acted in terms of the agreed procedure under the arbitration agreement, and that the appellant had failed to act as required under the appointment procedure. Therefore, the respondent invoked the power of the Chief Justice under sub-section (6) of section 11. In view of it, what falls for consideration is whether the appellant had failed to act as required under the appointment procedure. This pre-supposes that the respondent had called upon the appellant to act as required under the agreed appointment procedure. Let us examine whether the respondent had in fact called upon the appellant to act in accordance with the agreed procedure. 23. When the dispute arose, the respondent did not seek arbitration, but went to civil court. It was the appellant who sought reference to arbitration in terms of the arbitration agreement. The order dated 16.11.2005 of the Civil Judge, Junior Division directing reference to arbitration within two months from 16.11.2005 was challenged by both the parties. The District Judge, Dehradun by its order dated 20.1.2006 directed the parties to refer the dispute to arbitrator as per agreement, within two months. Therefore, the order dated 16.11.2005 stood merged with the order of the District Judge dated 20.1.2006, which directed reference of the dispute to arbitration as per the agreement, within two months. But there was no direction by the court to appoint an independent arbitrator contrary to the terms of the arbitration agreement. In view of the order dated 20.1.2006, the respondent ought to have referred the dispute to the Director (Marketing) of the appellant within two months from 20.1.2006. It failed to do so. Therefore, it was the respondent who failed to act in terms of the agreed procedure and not the appellant. In fact, as the Arbitrator was already identified, there was no need for the respondent to ask the appellant to act in accordance with the agreed procedure. On the other hand, the respondent ought to have directly referred the disputes to the Director (Marketing) of the appellant corporation in terms of the arbitration agreement. 24. We may now deal with the notice dated 4.1.2006 by which the respondent notified the appellant that it was not willing for appointment of arbitrator in terms of the agreement and that both should therefore hold discussions to decide upon an independent arbitrator. The letter dated 4.1.2006 cannot, be construed as a step taken by the respondent for invoking arbitration in terms of the arbitration agreement, as it is a demand in violation of the terms of arbitration agreement. It required the appellant to agree upon an arbitrator, contrary to the provisions of the arbitration agreement. If the respondent wanted to invoke arbitration in terms of the arbitration agreement, it ought to have referred the disputes to the Director (Marketing) in term of section 69 of the contract agreement for arbitration. Alternatively, the respondent ought to have at least called upon the appellant, to refer the dispute to the Director (Marketing) for arbitration. In the absence of any such a demand under clause 69, it cannot be said that the respondent invoked the arbitration clause or took necessary steps for invoking arbitration in terms of the arbitration agreement. If the respondent had called upon the appellant to act in a manner contrary to the appointment procedure mentioned in the arbitration agreement, it cannot be said that the appellant failed to respond and act as required under the agreed procedure. As the letter dated 4.1.2006 could not be construed as a valid demand for arbitration, the finding of the learned Chief Justice that non-compliance with such request would enable the respondent to appoint an independent arbitrator, is clearly illegal. What is significant is that even subsequent to the order dated 20.1.2006 passed by the District Court, the respondent did not refer the disputes to the Director (Marketing) of the appellant nor called upon the appellant to refer to the disputes in terms of the arbitration agreement, nor withdraw its earlier letter dated 4.1.2006 demanding appointment of an independent arbitrator contrary to the agreed procedure under the arbitration agreement. 25. In the circumstances, the third question is answered in the negative. Consequently, the learned Chief Justice erred in having proceeded on the basis that the respondent had performed its duty in terms of the arbitration agreement in seeking reference to arbitration and that the appellant had failed to act in the matter and therefore, there was justification for appointing an independent arbitrator.
### Response:
1
### Explanation:
(ii) he does not possess the qualifications agreed to by the parties. Section 18 requires the Arbitrator to treat the parties with equality (that is to say without bias) and give each party full opportunity to present his case. Nothing in sections 11, 12, 18 or other provisions of the Act suggests that any provision in an arbitration agreement, naming the Arbitrator will be invalid if such named arbitrator is an employee of one of the parties to the arbitration agreement. Sub-section (2) of section 11 provides that parties are free to agree upon a procedure for appointment of arbitrator/s. Sub-section (6) provides that where a party fails to act, as required under the procedure prescribed, the Chief Justice or his designate can take necessary measures. Sub-section (8) gives the discretion to the Chief Justice/his designate to choose an arbitrator suited to meet the requirements of a particular case. The said power is in no way intended to nullify a specific term of arbitration agreement naming a particular person as arbitrator. The power under sub-section (8) is intended to be used keeping in view the terms of the arbitration agreement. The fact that the named arbitrator is an employee of one of the parties is not ipso facto a ground to raise a presumption of bias or partiality of lack of independence on his part.Before parting from this issue, we may however refer to a ground reality. Contractors in their anxiety to secure contracts from government/ statutory bodies/public sector undertakings, agree to arbitration clauses providing for employee-arbitrators. But when subsequently disputes arise, they balk at the idea of arbitration by such employee-arbitrators and tend to litigate to secure an "independent" arbitrator. The number of litigations seeking appointment of independent Arbitrator bears testimony to this vexed problem. It will be appropriate if governments/statutory authorities/public sector undertaking reconsider their policy providing for arbitration by employee-arbitrators in deference to the specific provisions of the new Act reiterating the need for independence and impartiality in Arbitrators. A general shift may in future be necessary for understanding the word "independent" as referring to someone not connected with either party. That may improve the credibility of Arbitration as an alternative dispute resolution process. Be that as it may.In the light of the above discussion, the scope of section 11 of the Act containing the scheme of appointment of arbitrators may be summarisedWhere the agreement provides for arbitration with three arbitrators (each party to appoint one arbitrator and the two appointed arbitrators to appoint a third arbitrator), in the event of a party failing to appoint an Arbitrator within 30 days from the receipt of a request from the other party (or the two nominated arbitrators failing to agree on the third arbitrator within 30 days from the date of the appointment), the Chief Justice or his designate will exercise power under sub-section (4) of section 11 of the Act.(ii) Where the agreement provides for arbitration by a sole arbitrator and the parties have not agreed upon any appointment procedure, the Chief Justice or his designate will exercise power under sub-section (5) of section 11, if the parties fail to agree on the arbitration within thirty days from the receipt of a request by a party from the other party.(iii) Where the arbitration agreement specifies the appointment procedure, then irrespective of whether the arbitration is by a sole arbitrator or by a three-member Tribunal, the Chief Justice or his designate will exercise power under sub-section (6) of section 11, if a party fails to act as required under the agreed procedure (or the parties or the two appointed arbitrators fail to reach an agreement expected of them under the agreed procedure or any person/institution fails to perform any function entrusted to him/it under that procedure).(iv) While failure of the other party to act within 30 days will furnish a cause of action to the party seeking arbitration to approach the Chief Justice or his designate in cases falling under sub-sections (4) & (5), such a time bound requirement is not found in sub-section (6) of section 11. The failure to act as per the agreed procedure within the time limit prescribed by the arbitration agreement, or in the absence of any prescribed time limit, within a reasonable time, will enable the aggrieved party to file a petition under Section 11(6) of the Act.(v) Where the appointment procedure has been agreed between the parties, but the cause of action for invoking the jurisdiction of the Chief Justice or his designate under clauses (a), (b) or (c) of sub-section (6) has not arisen, then the question of Chief Justice or his designate exercising power under sub-section (6) does not arise. The condition precedent for approaching the Chief Justice or his designate for taking necessary measures under sub-section (6) is that (i) a party failing to act as required under the agreed appointment procedure; or (ii) the parties (or the two appointed arbitrators), failing to reach an agreement expected of them under the agreed appointment procedure; or (iii) a person/institution who has been entrusted with any function under the agreed appointment procedure, failing to perform such function.(vi) The Chief Justice or his designate while exercising power under sub-section (6) of section 11 shall endeavour to give effect to the appointment procedure prescribed in the arbitration clause.(vii) If circumstances exist, giving rise to justifiable doubts as to the independence and impartiality of the person nominated, or if other circumstances warrant appointment of an independent arbitrator by ignoring the procedure prescribed, the Chief Justice or his designate may, for reasons to be recorded ignore the designated arbitrator and appoint someone else.In the circumstances, the third question is answered in the negative. Consequently, the learned Chief Justice erred in having proceeded on the basis that the respondent had performed its duty in terms of the arbitration agreement in seeking reference to arbitration and that the appellant had failed to act in the matter and therefore, there was justification for appointing an independent arbitrator.
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E.V. Balakrishnan Vs. Mahalakshmi Ammal & Another | out of the will and once that was so no question of any selection by the legatee arose. This case therefore does not in any way weaken the rule of benevolent construction by which the legatee is entitled in certain circumstances to make a selection. These two cases therefore have no application to the facts of the present case and do not detract from the rule of benevolent construction in cases where the testator has not made or intended to make the selection himself or has not nominated a third person to make the selection.11. This brings us to the second point, namely, whether the testator on the construction of this will intended his daughters to select. The main argument on behalf of the appellant in this connection is that on a fair and reasonable construction of the will the testator intended his brother Seetharama to select for the daughters and that as his brother had died without making the selection, the lands devised to the daughters must now be partitioned in the ordinary course. It is not disputed that if the intention of the testator was not to give the selection to his brother, the case would clearly be of the third kind indicated by us above and the daughters would have the right to select. We have already pointed out that by this will the testator appointed Seetharama as the guardian of his minor daughters as well as of his foster son, namely, the appellant. The he said as follows :-"He (Seetharama) shall as soon as the minors attain majority give to the female children per head immediately they attain majority one veli of nanja land and one veli of punja land in the said vattam No. 149 out of the aforesaid properties and he shall deliver possession of the remaining properties to my son immediately after he attains majority."12. The argument is that these words show that it was Seetharama who was to make the selection and give the devised land to the two daughters and stress is laid on the words "he shall give to the female children". These words are contrasted with the words "he shall deliver possession of the remaining properties to my son." Now it is clear that there are no express words in the will which show that Seetharama shall select the land to be handed over to the two daughters. Can it be said merely because in one case the words used are "he shall give to the female children" and in the other case the words are "he shall deliver possession to my son" that by the use of the former words the testator was giving the right of selection to Seetharama? As we read the will it seems to us that though the words are different in the case of daughters as compared to the words used in the case of the foster son, the meaning of the testator is the same, namely, that Seetharama who was the guardian of the three children will be in possession so long as the three children were minor and shall deliver possession of the properties to the children as and when they became major. We do not think that the testator meant something different in the case of the daughters because he used the words "he shall give to the female children" in contrast with the words "he shall deliver possession........." used in the case of the appellant . In the context the words in our opinion mean the same. Therefore the direction of the testator was that as soon as the children obtain majority the guardian will deliver possession to them of the respective lands bequeathed to them. We cannot therefore read this sentence in the will to mean that the testator was giving the right of selection to Seetharama in the case of the property which he was bequeathing to his daughters; nor is there anything in the words of the will which would lead to the inference that the testator intended that the daughters would get their lands after taking into account the good and bad quality of the land. If that were the intention of the testator he should have given them a share in the vattam (No. 149) and not a specific area of land of both nanja and punja lands. Or he could have made this position clear, even if he wanted to indicate the extent of land, by using words which would indicate that good and bad quality land would be taken into account in computing the area to be given to the daughters. There are no words in the will from which it can be inferred that Seetharama was nominated by the testator to make the selection; nor are there any words from which it can be inferred that the testator intended that the daughters should get the area of land devised to them taking into account the good and bad quality. The case, therefore, squarely comes in the third class of cases mentioned above by us i.e. the testator had indicated with sufficient clarity what he wanted his daughters to get. The difficulty has arisen because vattam No. 149 has 21.38 acres of nanja land and 16.99 acres of punja land while each daughter is given 6.66 acres each of nanja and punja lands. The gift cannot be said to be void for uncertainty within the meaning of S. 89 for it can be made certain by the selection of the daughters and is not so uncertain that it is impossible to make it certain. The vattam is indicated from which the land is to come, the area of nanja and punja lands to be taken by each daughter is fixed. But the area of two kinds of land in the vattam is more than that given to the daughters; it must in the circumstances be held that the testator intended that each daughter will select the land devised out of the vattam. | 0[ds]The rule seems to be a common sense rule to give effect to the intentions of a testator which clearly show that he intended to bequeath something which could be made definite by choice.We do not see why such a rule of common sense to give effect to wills which are not quite uncertain and which can be made certain should be called an artificial rule.We also do not see why in appropriate cases this rule of common sense should not be extended to India. We have already said that it is only when the uncertainty is so great that there is no way of resolving it and finding out the intention of the testator that S. 89 comes into play.But where the uncertainty is of a less degree and the intention of the testator to gift certain property is clear, though there may be some difficulty because there is more property of that kind than actually bequeathed, that the benevolent rule should be applied to carry out the intention of the testator which is otherwisepointed out by the High Court in the present case these observations of Wallis, C. J. were unnecessary in the case before him, as he was dealing with a case where the legatee had died without making the selection. We think that the further English rule that the legatees heir cannot make the selection is also based on common sense, for the testator never had the legatees heirs in his mind when he made the bequest; his intention could only be in a case where selection was necessary that the legatee should make the selection. It seems to us therefore that where it is not possible to say on the construction of a will that the testator himself indicated the selection or appointed a third person to make the selection but still intended to make a gift which could be made certain by selection made by the legatee, the English rule of construction that in such cases the testator intended the legatee to select should be applied in India also and the decision in Narayanasami Gramanis case, ILR 18 Mad 460 is correct. The fact that there are ways of partition available to agriculturists in India would make to difference to the application of the rule, for we take it that there are ways of partition available to parties in England also. The application of this rule would avoid unnecessary litigation also, for once it is known that in such cases the selection is with the legatee the difficulty arising out of such wills could be easily resolved without recourse to courts. For this reason also we think that this rule of benevolent construction of wills of this description should be applied to Indiatwo cases therefore have no application to the facts of the present case and do not detract from the rule of benevolent construction in cases where the testator has not made or intended to make the selection himself or has not nominated a third person to make theis not disputed that if the intention of the testator was not to give the selection to his brother, the case would clearly be of the third kind indicated by us above and the daughters would have the right to select. We have already pointed out that by this will the testator appointed Seetharama as the guardian of his minor daughters as well as of his foster son, namely, theit is clear that there are no express words in the will which show that Seetharama shall select the land to be handed over to the twowe read the will it seems to us that though the words are different in the case of daughters as compared to the words used in the case of the foster son, the meaning of the testator is the same, namely, that Seetharama who was the guardian of the three children will be in possession so long as the three children were minor and shall deliver possession of the properties to the children as and when they became major. We do not think that the testator meant something different in the case of the daughters because he used the words "he shall give to the female children" in contrast with the words "he shall deliver possession........." used in the case of the appellant . In the context the words in our opinion mean the same. Therefore the direction of the testator was that as soon as the children obtain majority the guardian will deliver possession to them of the respective lands bequeathed to them. We cannot therefore read this sentence in the will to mean that the testator was giving the right of selection to Seetharama in the case of the property which he was bequeathing to his daughters; nor is there anything in the words of the will which would lead to the inference that the testator intended that the daughters would get their lands after taking into account the good and bad quality of the land. If that were the intention of the testator he should have given them a share in the vattam (No. 149) and not a specific area of land of both nanja and punja lands. Or he could have made this position clear, even if he wanted to indicate the extent of land, by using words which would indicate that good and bad quality land would be taken into account in computing the area to be given to the daughters. There are no words in the will from which it can be inferred that Seetharama was nominated by the testator to make the selection; nor are there any words from which it can be inferred that the testator intended that the daughters should get the area of land devised to them taking into account the good and bad quality. The case, therefore, squarely comes in the third class of cases mentioned above by us i.e. the testator had indicated with sufficient clarity what he wanted his daughters to get. The difficulty has arisen because vattam No. 149 has 21.38 acres of nanja land and 16.99 acres of punja land while each daughter is given 6.66 acres each of nanja and punja lands. The gift cannot be said to be void for uncertainty within the meaning of S. 89 for it can be made certain by the selection of the daughters and is not so uncertain that it is impossible to make it certain. The vattam is indicated from which the land is to come, the area of nanja and punja lands to be taken by each daughter is fixed. But the area of two kinds of land in the vattam is more than that given to the daughters; it must in the circumstances be held that the testator intended that each daughter will select the land devised out of the vattam. | 0 | 4,293 | 1,207 | ### Instruction:
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out of the will and once that was so no question of any selection by the legatee arose. This case therefore does not in any way weaken the rule of benevolent construction by which the legatee is entitled in certain circumstances to make a selection. These two cases therefore have no application to the facts of the present case and do not detract from the rule of benevolent construction in cases where the testator has not made or intended to make the selection himself or has not nominated a third person to make the selection.11. This brings us to the second point, namely, whether the testator on the construction of this will intended his daughters to select. The main argument on behalf of the appellant in this connection is that on a fair and reasonable construction of the will the testator intended his brother Seetharama to select for the daughters and that as his brother had died without making the selection, the lands devised to the daughters must now be partitioned in the ordinary course. It is not disputed that if the intention of the testator was not to give the selection to his brother, the case would clearly be of the third kind indicated by us above and the daughters would have the right to select. We have already pointed out that by this will the testator appointed Seetharama as the guardian of his minor daughters as well as of his foster son, namely, the appellant. The he said as follows :-"He (Seetharama) shall as soon as the minors attain majority give to the female children per head immediately they attain majority one veli of nanja land and one veli of punja land in the said vattam No. 149 out of the aforesaid properties and he shall deliver possession of the remaining properties to my son immediately after he attains majority."12. The argument is that these words show that it was Seetharama who was to make the selection and give the devised land to the two daughters and stress is laid on the words "he shall give to the female children". These words are contrasted with the words "he shall deliver possession of the remaining properties to my son." Now it is clear that there are no express words in the will which show that Seetharama shall select the land to be handed over to the two daughters. Can it be said merely because in one case the words used are "he shall give to the female children" and in the other case the words are "he shall deliver possession to my son" that by the use of the former words the testator was giving the right of selection to Seetharama? As we read the will it seems to us that though the words are different in the case of daughters as compared to the words used in the case of the foster son, the meaning of the testator is the same, namely, that Seetharama who was the guardian of the three children will be in possession so long as the three children were minor and shall deliver possession of the properties to the children as and when they became major. We do not think that the testator meant something different in the case of the daughters because he used the words "he shall give to the female children" in contrast with the words "he shall deliver possession........." used in the case of the appellant . In the context the words in our opinion mean the same. Therefore the direction of the testator was that as soon as the children obtain majority the guardian will deliver possession to them of the respective lands bequeathed to them. We cannot therefore read this sentence in the will to mean that the testator was giving the right of selection to Seetharama in the case of the property which he was bequeathing to his daughters; nor is there anything in the words of the will which would lead to the inference that the testator intended that the daughters would get their lands after taking into account the good and bad quality of the land. If that were the intention of the testator he should have given them a share in the vattam (No. 149) and not a specific area of land of both nanja and punja lands. Or he could have made this position clear, even if he wanted to indicate the extent of land, by using words which would indicate that good and bad quality land would be taken into account in computing the area to be given to the daughters. There are no words in the will from which it can be inferred that Seetharama was nominated by the testator to make the selection; nor are there any words from which it can be inferred that the testator intended that the daughters should get the area of land devised to them taking into account the good and bad quality. The case, therefore, squarely comes in the third class of cases mentioned above by us i.e. the testator had indicated with sufficient clarity what he wanted his daughters to get. The difficulty has arisen because vattam No. 149 has 21.38 acres of nanja land and 16.99 acres of punja land while each daughter is given 6.66 acres each of nanja and punja lands. The gift cannot be said to be void for uncertainty within the meaning of S. 89 for it can be made certain by the selection of the daughters and is not so uncertain that it is impossible to make it certain. The vattam is indicated from which the land is to come, the area of nanja and punja lands to be taken by each daughter is fixed. But the area of two kinds of land in the vattam is more than that given to the daughters; it must in the circumstances be held that the testator intended that each daughter will select the land devised out of the vattam.
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because there is more property of that kind than actually bequeathed, that the benevolent rule should be applied to carry out the intention of the testator which is otherwisepointed out by the High Court in the present case these observations of Wallis, C. J. were unnecessary in the case before him, as he was dealing with a case where the legatee had died without making the selection. We think that the further English rule that the legatees heir cannot make the selection is also based on common sense, for the testator never had the legatees heirs in his mind when he made the bequest; his intention could only be in a case where selection was necessary that the legatee should make the selection. It seems to us therefore that where it is not possible to say on the construction of a will that the testator himself indicated the selection or appointed a third person to make the selection but still intended to make a gift which could be made certain by selection made by the legatee, the English rule of construction that in such cases the testator intended the legatee to select should be applied in India also and the decision in Narayanasami Gramanis case, ILR 18 Mad 460 is correct. The fact that there are ways of partition available to agriculturists in India would make to difference to the application of the rule, for we take it that there are ways of partition available to parties in England also. The application of this rule would avoid unnecessary litigation also, for once it is known that in such cases the selection is with the legatee the difficulty arising out of such wills could be easily resolved without recourse to courts. For this reason also we think that this rule of benevolent construction of wills of this description should be applied to Indiatwo cases therefore have no application to the facts of the present case and do not detract from the rule of benevolent construction in cases where the testator has not made or intended to make the selection himself or has not nominated a third person to make theis not disputed that if the intention of the testator was not to give the selection to his brother, the case would clearly be of the third kind indicated by us above and the daughters would have the right to select. We have already pointed out that by this will the testator appointed Seetharama as the guardian of his minor daughters as well as of his foster son, namely, theit is clear that there are no express words in the will which show that Seetharama shall select the land to be handed over to the twowe read the will it seems to us that though the words are different in the case of daughters as compared to the words used in the case of the foster son, the meaning of the testator is the same, namely, that Seetharama who was the guardian of the three children will be in possession so long as the three children were minor and shall deliver possession of the properties to the children as and when they became major. We do not think that the testator meant something different in the case of the daughters because he used the words "he shall give to the female children" in contrast with the words "he shall deliver possession........." used in the case of the appellant . In the context the words in our opinion mean the same. Therefore the direction of the testator was that as soon as the children obtain majority the guardian will deliver possession to them of the respective lands bequeathed to them. We cannot therefore read this sentence in the will to mean that the testator was giving the right of selection to Seetharama in the case of the property which he was bequeathing to his daughters; nor is there anything in the words of the will which would lead to the inference that the testator intended that the daughters would get their lands after taking into account the good and bad quality of the land. If that were the intention of the testator he should have given them a share in the vattam (No. 149) and not a specific area of land of both nanja and punja lands. Or he could have made this position clear, even if he wanted to indicate the extent of land, by using words which would indicate that good and bad quality land would be taken into account in computing the area to be given to the daughters. There are no words in the will from which it can be inferred that Seetharama was nominated by the testator to make the selection; nor are there any words from which it can be inferred that the testator intended that the daughters should get the area of land devised to them taking into account the good and bad quality. The case, therefore, squarely comes in the third class of cases mentioned above by us i.e. the testator had indicated with sufficient clarity what he wanted his daughters to get. The difficulty has arisen because vattam No. 149 has 21.38 acres of nanja land and 16.99 acres of punja land while each daughter is given 6.66 acres each of nanja and punja lands. The gift cannot be said to be void for uncertainty within the meaning of S. 89 for it can be made certain by the selection of the daughters and is not so uncertain that it is impossible to make it certain. The vattam is indicated from which the land is to come, the area of nanja and punja lands to be taken by each daughter is fixed. But the area of two kinds of land in the vattam is more than that given to the daughters; it must in the circumstances be held that the testator intended that each daughter will select the land devised out of the vattam.
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M.D., H.S.I.D.C. & Others Vs. M/s. Hari Om Enterprises & Another | operating in the field. This Court, however, also put a note of caution that no order should be passed only on sympathy or sentiment. Doctrine of proportionality has since been applied in Sandeep Subhash Parate v. State of Maharashtra & Ors. [(2006) 8 SCALE 503] and Jitendra Kumar & Ors. v. State of Haryana & Anr. [2007 (14) SCALE 125 : (2008) 2 SCC 161 ]. 32. In State of Bihar and Others v. Kameshwar Prasad Singh and Another [(2000) 9 SCC 94] whereupon strong reliance has been placed by Mr. Jaspal Singh to contend that in a given case, this court may not exercise its discretionary jurisdiction under Article 136 of the Constitution of India even if the order is found to be illegal. This court was concerned with a service matter. It was held: "36. It is further contended that as the respondent was, in the meantime, appointed/promoted in the IPS cadre and as per requirements of the State Government he has already submitted his resignation from the State service, the acceptance of the appeal and setting aside the directions of the High Court would result in great hardship to him and amount to unsettling his settled service rights particularly when his promotion/appointment to the IPS cadre has not been challenged and is not in dispute. Such a plea by itself cannot be accepted as a ground to dismiss the appeal filed against an order which we have held to be illegal being contrary to law and the Service Rules applicable in the case. Once the judgment is set aside, the consequences have to follow and a person taking advantage or benefit of the wrong orders is to suffer for his own faults which cannot be attributed to anybody else. However, in appropriate cases this Court can mould the relief to safeguard the interests of a person wherever required. For doing complete justice between the parties, appropriate directions can be given to protect the interests of a person who is found to have been conferred the benefits on the basis of judicial pronouncements made in his favour. As the appellant State has been found to be careless and negligent in defending its cases, we feel and are inclined to protect the interests of Brij Bihari Prasad Singh, respondent. We are convinced that the interests of justice would be served by holding that despite setting aside the judgments of the High Court, his interests be protected by not disturbing his promotions made from time to time. However, judgments passed in his favour cannot be permitted to be made a basis for conferment of similar rights upon other persons who are shown to have filed writ petitions or representations which, if accepted, are likely to adversely affect the interests of more than 150 Inspectors and 400 officers in the rank of Deputy SP. Similarly, if any benefit has been conferred upon any other person who has superannuated, no useful purpose would be served by directing his demotion retrospectively and recovery of the excess emoluments paid to him." 33. Indisputably, the court can balance the equities between the parties but the same does not necessarily mean that in all cases this Court should refuse to exercise its discretionary jurisdiction. Each case must be considered on its own merit and no hard and fast rule can be laid down therefor. 34. We would consider the question about the balancing equities between the parties in each individual case. In a case of this nature, this Court in exercise of its jurisdiction under Article 142 of the Constitution of India may also consider rendition of individualized justice. [See Shyam Nandan Prasad and Others v. State of Bihar and others (1993) 4 SCC 255 ]. Our attention has been drawn to the fact that the Punjab High Court in some of the matters in Jaisy Designs v. MD. HSIDC [decided on 4th July, 2006] had issued similar directions. A Bench of this Court, however, dismissed the special leave petition being SLP (C) No. 12074 of 2006 by an order dated 7.08.2006. 35. However, another Bench of this Court in Civil Appeal arising out of SLP (C) No. 20235 of 2007, presumably, without noticing the said order directed issuance of notice by an order dated 4.12.2006. Following the said decision, even other Benches had issued notice in other matters including Civil Appeal arising out of SLP (C) No. 14074 of 2006. 36. Reliance has been placed on State of Kerala and Others v. P.T. Thomas [(2005) 12 SCC 347] where this Court having regard to the orders passed in number of cases in regard to payment of interest dismissed the appeals inter alia taking into consideration the said factor. However, in P.T. Thomas (supra) it was not the sole consideration. This Court noticed that payment of interest was not an issue in the main writ petition and that was the principal reason in dismissing the appeal. We have noticed hereinbefore that in Kameshwar Prasad Singh (supra), this court made a clear distinction between an order which is illegal and, thus, the order being illegal the benefit thereof would not be extended to persons similarly situated on the premise that Article 14 is a positive concept. 37. In the instant case, the High Courts jurisdiction is in question. The learned counsel for the parties have addressed us at great length on the individual merit of the matter. We, therefore, are of the opinion that on the said ground alone, we would not refuse to interfere. 38. In Civil Appeals arising out of SLP (C) No. 17426 of 2006, no opportunity had been given to the appellants to file counter affidavit. Even the High Court had proceeded on the basis that equity demands that they should be given some extension of time to perform their part of contract. It was submitted that even the doctrine of proportionality is applicable in these cases in view of the decision of this Court in Teri Oat Estates (P) Ltd. (supra). 39. | 1[ds]Allotment of industrial plot keeping in view the object and purport for which the Corporation had been constituted and incorporated must be held to be a governmental function. In a case of this nature where the aim and object of the Corporation as also the State is to encourage industrialization while adjusting equity, the purpose for which the Scheme was made would be a relevant factor. Only because allotment of land has been effected through a letter, the same by itself does not make such allotment and/ or the provisions contained therein to be matters within `private law domain asfrom `public law domain. The State exercises deep and pervasive control over the activities of theparties themselves agreed that despite the fact that the Corporation is a juristic person, an appeal against its decision shall lie to the Financial Commission of the State. Indisputably, the function of the appellant is a sovereign function. It, in any event is a State, within the meaning of Article 12 of the Constitution of India. Its action, therefore, must be fair and reasonable so as to sub serve the requirements of Article 14 of theletter of allotment dated 10.01.2001 indisputably sets out the terms and conditions thereof. But, the same is not exhaustive. The terms and conditions were supplemented by the Corporation itself in its letter dated 20.12.2001 when offer of handing over physical possession was made, by reason whereof not only a period of two years was provided for deposit of installment along with interest at the rate of 18% per annum but also a provision had been made that in the event of failure to adhere to the schedule enumerated therein, penalty equivalent to 10% of the amount due would be levied. It was furthermore laid down that in the event of failure of the `firm to pay the amount penalty within the prescribed period, the plot would be liable for resumption. The terms and conditions of letter of allotment would clearly show that resumption of the plot is nota State takes penal action against the allottee, its bona fide would be one of the relevant factors before an order of resumption and forfeiture of the amount deposited is passed. The particulars contemplated in the letter of allotment as also the letter of offer of possession and the procedures laid down therefor were required to be scrupulously complied with. The letter of allotment as also the letter of offer of possession must be read conjointly. The very fact that not only the amount specified therein was required to be paid in instalments but also with interest at the rate of 18% per annum, was required to be borne in mind. Thus, in a case where the allottee had complied with the terms of allotment in the matter of payment of instalments, the same would be a relevant factor for exercising the enabling clause of resumption by a `State. Not only that, a further opportunity was required to be given to the allottee even if there was some default on its part inasmuch as the appellant itself provides for levy of penalty. The power of resumption, thus, must be resorted to only in a case where despite grant of the opportunities contemplated in terms of the letter of intent wereissuance of letter of offer of physical possession dated 20.12.2001, the fact that actual possession had not been handed over for a period of two years is not in dispute. The Corporation did not say that actual possession was not taken by the respondent despite offer having been made in that behalf. It, in its anxiety to set a time limit for ensuring that the commercial production starts at an early date, was expected at least to send a reminder. It failed and/ or neglected to do so. For the purpose of approval of the building plan, the time taken by it also would have been a relevant factor for passing an order ofalthough do not intend to lay down a law that all the aforementioned period should be excluded from computation for the purpose of grant of notice of resumption, but there cannot be any doubt whatsoever that while judging the conduct of the parties, the appellant was obligated to judge its own conduct in thethe provisions of the aforementioned Act are not applicable in the instant case, Jagdish Chand (supra) is being referred for showing that when two remedies to enforce a contract are available, the power should be exercised in reasonable manner. So construed, a harsher remedy may not ordinarily be resortedHigh Court, in our opinion, has notthe contract nor waived the rights and obligations of thethe court can balance the equities between the parties but the same does not necessarily mean that in all cases this Court should refuse to exercise its discretionary jurisdiction. Each case must be considered on its own merit and no hard and fast rule can be laid downthe instant case, the High Courts jurisdiction is in question. The learned counsel for the parties have addressed us at great length on the individual merit of thetherefore, are of the opinion that on the said ground alone, we would not refuse toCivil Appeals arising out of SLP (C) No. 17426 of 2006, no opportunity had been given to the appellants to file counter affidavit. Even the High Court had proceeded on the basis that equity demands that they should be given some extension of time to perform their part ofagree with the High Court that Clause 3 of the said offer of the order of allotment dated 18.07.2003, on the one hand, and Clauses 4 and 5, on the other, are irreconcilable. Payment to be made under Clause 3 cannot be subject to the stipulations contained in Clauses 4 and 5. They are independent of each other. The allottee in terms of Clause 3 had an option. Mode of payment in terms of Clause 3, on the one hand, and Clauses 4 and 5, on the other, are distinct and different. However, the High Court was not correct when it directed thatof land would be subject to the final decision of the case. Cancellation of plot as also reallotment thereof had been made in June 2004. The writ petition was filed in July,reason of the judgment of the High Court, the right of a third party has been affected. He without having been impleaded as a party in the writ petition cannot suffer an adverse order for which he is no way responsible. A statement has been made before us by the learned Additional Solicitor General that no residential plot is available for allotment. He, however, submits that as and when such a plot is available, the same would be offered to the respondent. We may place on record the aforementioned submission. However, we feel that the respondents were not to be blamed for not depositing the amount. Invocation of Clause 4 is clearly illegal. We, therefore, are of the opinion that the respondent should be suitably compensated on monetary terms. We direct the appellants to pay a sum of Rs. 1,00,000/to the respondents herein. We, however, also direct that keeping in view the statements made at the Bar, as and when any residential plot becomes available, the same should be allotted to the respondents on the sameis a clear case where the respondents have failed to abide by any of the terms of contract. It did not deposit even the initial amount in time, there was no reason for it not to do so. Even interest payable on the said amount had not been paid. The appeal should, therefore, bethis case, the respondent has clearly been discriminated against. Appellants action is clearly unfair and unreasonable. In any event, it has waived its right. Furthermore, it was a case where the principles of natural justice should have been compliedHigh Court in, this case, in its impugned judgment has taken care to see that the object for grant of allotment were fulfilled being promotion of industrial growth. Applying the principles of law as indicated hereinbefore, we are of the opinion that no case has been made out for our interference with the impugnedhad already appointed an architect for construction of the building. It had already started constructions. The fact that it was the Department which did not grant any license. The Appellate Committee, however, did not consider this aspect of the matter at all and thus the appellate orders suffered from totalhe High Court while allowing the petition quashed the resumption order and directed the respondent to complete the construction of the industrial building within a period of six months from the date of offer of the possession of theall these cases, it is difficult to uphold the order of the High Court. But a general offer was made by the learned Additional Solicitor General that those who intend to obtain reallotment of plot may do so on payment of the price as per the current rate as on the date of the order of the Highus, several allottees had categorically made a statement that they are ready and willing to pay the prevailing price as fixed by the appellantCorporation. Keeping in view the facts and circumstances of this cases, we are of the opinion that in the event, respondents offer the prevailing price as on the date of judgment of the High Court, the plot, in question, shall standand should be subject to the same terms and conditions. Such reallotment may be made even in cases where we have found the order of the High Court to beshall deposit the amount within six weeks from date. Appellant shall hand over the possession of the plot, in question, within four weeks thereafter. The highest executive of Appellant – Corporation shall see to it that the order of this Court is complied with. It is, however, made clear that in the event of failure on the part of the respondents concerned in making payment in terms of this order, it would be open to the appellant to take recourse to such action as is permissible in law. | 1 | 6,488 | 1,843 | ### Instruction:
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operating in the field. This Court, however, also put a note of caution that no order should be passed only on sympathy or sentiment. Doctrine of proportionality has since been applied in Sandeep Subhash Parate v. State of Maharashtra & Ors. [(2006) 8 SCALE 503] and Jitendra Kumar & Ors. v. State of Haryana & Anr. [2007 (14) SCALE 125 : (2008) 2 SCC 161 ]. 32. In State of Bihar and Others v. Kameshwar Prasad Singh and Another [(2000) 9 SCC 94] whereupon strong reliance has been placed by Mr. Jaspal Singh to contend that in a given case, this court may not exercise its discretionary jurisdiction under Article 136 of the Constitution of India even if the order is found to be illegal. This court was concerned with a service matter. It was held: "36. It is further contended that as the respondent was, in the meantime, appointed/promoted in the IPS cadre and as per requirements of the State Government he has already submitted his resignation from the State service, the acceptance of the appeal and setting aside the directions of the High Court would result in great hardship to him and amount to unsettling his settled service rights particularly when his promotion/appointment to the IPS cadre has not been challenged and is not in dispute. Such a plea by itself cannot be accepted as a ground to dismiss the appeal filed against an order which we have held to be illegal being contrary to law and the Service Rules applicable in the case. Once the judgment is set aside, the consequences have to follow and a person taking advantage or benefit of the wrong orders is to suffer for his own faults which cannot be attributed to anybody else. However, in appropriate cases this Court can mould the relief to safeguard the interests of a person wherever required. For doing complete justice between the parties, appropriate directions can be given to protect the interests of a person who is found to have been conferred the benefits on the basis of judicial pronouncements made in his favour. As the appellant State has been found to be careless and negligent in defending its cases, we feel and are inclined to protect the interests of Brij Bihari Prasad Singh, respondent. We are convinced that the interests of justice would be served by holding that despite setting aside the judgments of the High Court, his interests be protected by not disturbing his promotions made from time to time. However, judgments passed in his favour cannot be permitted to be made a basis for conferment of similar rights upon other persons who are shown to have filed writ petitions or representations which, if accepted, are likely to adversely affect the interests of more than 150 Inspectors and 400 officers in the rank of Deputy SP. Similarly, if any benefit has been conferred upon any other person who has superannuated, no useful purpose would be served by directing his demotion retrospectively and recovery of the excess emoluments paid to him." 33. Indisputably, the court can balance the equities between the parties but the same does not necessarily mean that in all cases this Court should refuse to exercise its discretionary jurisdiction. Each case must be considered on its own merit and no hard and fast rule can be laid down therefor. 34. We would consider the question about the balancing equities between the parties in each individual case. In a case of this nature, this Court in exercise of its jurisdiction under Article 142 of the Constitution of India may also consider rendition of individualized justice. [See Shyam Nandan Prasad and Others v. State of Bihar and others (1993) 4 SCC 255 ]. Our attention has been drawn to the fact that the Punjab High Court in some of the matters in Jaisy Designs v. MD. HSIDC [decided on 4th July, 2006] had issued similar directions. A Bench of this Court, however, dismissed the special leave petition being SLP (C) No. 12074 of 2006 by an order dated 7.08.2006. 35. However, another Bench of this Court in Civil Appeal arising out of SLP (C) No. 20235 of 2007, presumably, without noticing the said order directed issuance of notice by an order dated 4.12.2006. Following the said decision, even other Benches had issued notice in other matters including Civil Appeal arising out of SLP (C) No. 14074 of 2006. 36. Reliance has been placed on State of Kerala and Others v. P.T. Thomas [(2005) 12 SCC 347] where this Court having regard to the orders passed in number of cases in regard to payment of interest dismissed the appeals inter alia taking into consideration the said factor. However, in P.T. Thomas (supra) it was not the sole consideration. This Court noticed that payment of interest was not an issue in the main writ petition and that was the principal reason in dismissing the appeal. We have noticed hereinbefore that in Kameshwar Prasad Singh (supra), this court made a clear distinction between an order which is illegal and, thus, the order being illegal the benefit thereof would not be extended to persons similarly situated on the premise that Article 14 is a positive concept. 37. In the instant case, the High Courts jurisdiction is in question. The learned counsel for the parties have addressed us at great length on the individual merit of the matter. We, therefore, are of the opinion that on the said ground alone, we would not refuse to interfere. 38. In Civil Appeals arising out of SLP (C) No. 17426 of 2006, no opportunity had been given to the appellants to file counter affidavit. Even the High Court had proceeded on the basis that equity demands that they should be given some extension of time to perform their part of contract. It was submitted that even the doctrine of proportionality is applicable in these cases in view of the decision of this Court in Teri Oat Estates (P) Ltd. (supra). 39.
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there cannot be any doubt whatsoever that while judging the conduct of the parties, the appellant was obligated to judge its own conduct in thethe provisions of the aforementioned Act are not applicable in the instant case, Jagdish Chand (supra) is being referred for showing that when two remedies to enforce a contract are available, the power should be exercised in reasonable manner. So construed, a harsher remedy may not ordinarily be resortedHigh Court, in our opinion, has notthe contract nor waived the rights and obligations of thethe court can balance the equities between the parties but the same does not necessarily mean that in all cases this Court should refuse to exercise its discretionary jurisdiction. Each case must be considered on its own merit and no hard and fast rule can be laid downthe instant case, the High Courts jurisdiction is in question. The learned counsel for the parties have addressed us at great length on the individual merit of thetherefore, are of the opinion that on the said ground alone, we would not refuse toCivil Appeals arising out of SLP (C) No. 17426 of 2006, no opportunity had been given to the appellants to file counter affidavit. Even the High Court had proceeded on the basis that equity demands that they should be given some extension of time to perform their part ofagree with the High Court that Clause 3 of the said offer of the order of allotment dated 18.07.2003, on the one hand, and Clauses 4 and 5, on the other, are irreconcilable. Payment to be made under Clause 3 cannot be subject to the stipulations contained in Clauses 4 and 5. They are independent of each other. The allottee in terms of Clause 3 had an option. Mode of payment in terms of Clause 3, on the one hand, and Clauses 4 and 5, on the other, are distinct and different. However, the High Court was not correct when it directed thatof land would be subject to the final decision of the case. Cancellation of plot as also reallotment thereof had been made in June 2004. The writ petition was filed in July,reason of the judgment of the High Court, the right of a third party has been affected. He without having been impleaded as a party in the writ petition cannot suffer an adverse order for which he is no way responsible. A statement has been made before us by the learned Additional Solicitor General that no residential plot is available for allotment. He, however, submits that as and when such a plot is available, the same would be offered to the respondent. We may place on record the aforementioned submission. However, we feel that the respondents were not to be blamed for not depositing the amount. Invocation of Clause 4 is clearly illegal. We, therefore, are of the opinion that the respondent should be suitably compensated on monetary terms. We direct the appellants to pay a sum of Rs. 1,00,000/to the respondents herein. We, however, also direct that keeping in view the statements made at the Bar, as and when any residential plot becomes available, the same should be allotted to the respondents on the sameis a clear case where the respondents have failed to abide by any of the terms of contract. It did not deposit even the initial amount in time, there was no reason for it not to do so. Even interest payable on the said amount had not been paid. The appeal should, therefore, bethis case, the respondent has clearly been discriminated against. Appellants action is clearly unfair and unreasonable. In any event, it has waived its right. Furthermore, it was a case where the principles of natural justice should have been compliedHigh Court in, this case, in its impugned judgment has taken care to see that the object for grant of allotment were fulfilled being promotion of industrial growth. Applying the principles of law as indicated hereinbefore, we are of the opinion that no case has been made out for our interference with the impugnedhad already appointed an architect for construction of the building. It had already started constructions. The fact that it was the Department which did not grant any license. The Appellate Committee, however, did not consider this aspect of the matter at all and thus the appellate orders suffered from totalhe High Court while allowing the petition quashed the resumption order and directed the respondent to complete the construction of the industrial building within a period of six months from the date of offer of the possession of theall these cases, it is difficult to uphold the order of the High Court. But a general offer was made by the learned Additional Solicitor General that those who intend to obtain reallotment of plot may do so on payment of the price as per the current rate as on the date of the order of the Highus, several allottees had categorically made a statement that they are ready and willing to pay the prevailing price as fixed by the appellantCorporation. Keeping in view the facts and circumstances of this cases, we are of the opinion that in the event, respondents offer the prevailing price as on the date of judgment of the High Court, the plot, in question, shall standand should be subject to the same terms and conditions. Such reallotment may be made even in cases where we have found the order of the High Court to beshall deposit the amount within six weeks from date. Appellant shall hand over the possession of the plot, in question, within four weeks thereafter. The highest executive of Appellant – Corporation shall see to it that the order of this Court is complied with. It is, however, made clear that in the event of failure on the part of the respondents concerned in making payment in terms of this order, it would be open to the appellant to take recourse to such action as is permissible in law.
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Thakur Kesari Singh Vs. The State Of Rajasthan And Others | and not with the time during which the notification remains in force. That follows from the words "in any local area". There is no reference anywhere to the currency of the notification in point of time. Item 4 of group E in Sch. II to the Tenancy Act earlier referred to, leads to the same conclusion. That item provides that the period of limitation for an application under S. 85 is so long as notification remains in force. It is clear that if in sub-sec. (2) the words "in any local area to which a notification applies" meant, during the currency of the notification in point of time, there would have been no need to specify a period of limitation in Sch. II. We have also earlier pointed out that item 4 of group C in Sch. II has been repealed by the corresponding provisions in the Revenue Courts Act. Since the latter Act came into force, the position is that there is no period of limitation for an application under S. 85 of the Tenancy Act. It is impossible, therefore, to contend that the words "in any local area to which a notification made under sub-sec. (1) applies" indicate that the Deputy Commissioners power to act when an application under that section is made, exists only so long as the notification remains in force.28. It also seems to us that the Deputy Commissioners power to act arises on an application having been duly made under sub-sec. (2) of S. 85. Even if that application had to be made within the period that the notification remained in force, there would be nothing in sub-sec. (2) to lead to the conclusion that the Deputy Commissioners power to act on the application would also depend on the notification remaining in force. It may be stated here that in the present case the application had been made before the Notification had been rescinded. Once the notification under S. 85 is issued, power is certainly vested in the appropriate Revenue Officers to deal with and dispose of an application made under that section at a time the notification was in force and applied to the particular area. Subsequent cancellation of the notification would not divest the appropriate authority of the power already vested in him to dispose of the application which was properly and duly made under S. 85. In our view, steps can be taken under S. 85 of the Tenancy Act by the appropriate Revenue Officer for realisation of rent found due as arrears of land revenue even after the notification under that section has been rescinded.29. Reliance is placed by the learned advocate for the respondents on Crown v. Haveli, AIR 1949 Lah 191 (FB). In that case it was held that further proceedings under a temporary Act could not be continued after it had expired. It is contended that S. 85 of the Tenancy Act was really a temporary Act for it was brought into operation only upon a notification which notification was clearly not intended to be of permanent operation. We are unable to accept this view. The fact, if this be so, that S. 85 is brought into operation by a notification, and that that notification may not be of permanent operation, does not make the section a temporary enactment. We do not think that the principles applicable to interpretation of temporary Acts apply to the case of a provision like S. 85 of the Tenancy Act.30. Reliance is also placed on cl. (a) of sub-sec. (4) of S. 85 of the Tenancy Act. It is said that this clause by permitting suits for recovery of rents which have not been recovered under the section, indicates that after the rescission of the Notification, further proceedings cannot be taken under the section. It is contended that cl. (a) contemplates that it may so happen that when a notification is rescinded, the whole amount of rent in respect of which the application under S. 85 had been made, had not been recovered and that cl. (a) permits suit to be filed in respect of the amount which remained unrealised at the date the notification is rescinded. This argument seems to us to beg the question, for, it proceeds on the basis that the suit contemplated by cl. (a) is for the amount of rent which cannot be recovered under the section anymore because of the rescission of the notification. Clause (a) however may clearly apply to a case where in spite of a notification under the section, the landlord whether during its currency or later, chooses to proceed by way of a suit under the other provisions of the Tenancy Act.31. It is then contended on behalf of the tenants that the notification of February 22, 1951, was not a valid notification because out of 125 tenants in village Khakharki 82 had paid rent and the remaining 43, who are the respondents in this appeal, were willing to pay but could not pay as the appellant was asking for larger sums than what were legitimately due to him. It is contended that on these facts it could not be said that there was a general refusal to pay rent within the meaning of S. 85 of the Tenancy Act. Hence, it is said that the Notification was ultra vires the section and inoperative. We do not think that the tenants can be allowed to raise this point in this Court. It does not appear to have been raised in the High Court. The High Courts judgment makes no mention of it. Whether it is open for a Court to go behind the notification issued under S. 85 and decide its validity or not, this contention of the tenants raises a question of fact as to how many tenants had refused to pay rent. It also raises a question of interpretation of the words "general refusal to pay" in S. 85. None of these questions was raised at any earlier stage. | 1[ds]The High Court was unable to accept this contention and we think rightly. Section 85 of the Tenancy Act would be repealed only if the Revenue Courts Act contained any provision dealing with the matter covered by it. We find no such provision in the Revenue Courts Act. The Revenue Courts Act deals with matters of jurisdiction and procedure of Revenue Courts. It does not deal with any substantive right. This is clear from the provisions of the Revenue Courts Act and, indeed, is not in dispute. Quite clearly, S. 85 creates, on the requisite notification being issued, a substantive right in a landlord to have the rent due to him recovered as arrears of land revenue. We do not find any provision in the Revenue Courts Act dealing with the substantive right created by S. 85 of the Tenancy Act. There is, therefore, no foundation for the argument that that section has been repealed by S. 2 of the Revenue Courts Act.A reference has now to be made to the rules framed under S. 85 of the Tenancy Act. These rules, so far as relevant for our purpose, prescribe that an application by the landlord under the section shall be accompanied by a list in a prescribed form in which is to be stated the dues of the landlord for canal charges, rent, interest and court fees. Rule 134 provides that the Deputy Commissioner shall check the lists by examining the Patwari or by any other suitable method and thereafter enter in the appropriate column in the form, the amounts passed by him as due to the landlord. Under R. 35 he has thereafter to send the list to the Tahsildar who shall then proceed to realise the amount stated in the list by the Deputy Commissioner to be due to the landlord.16. It is said on behalf of the tenants that the rules under S. 85 lay down the procedure for the disposal of an application made under that section, and that these rules have been repealed by S. 2 of the Revenue Courts Act, read with R. 114 of the rules framed under that Act. It is contended that the revenue authorities committed an error in following the rules framed under S. 85 of the Tenancy Act and not those prescribed in Ch. II of the rules made under the Revenue Courts Act.Act.18. It is enough for our purposes to say that Ch. II lays down a procedure for a contested matter, that is to say, it requires that notice of the proceedings should be issued to the respondent to it and he should be issued to the respondent to it and he should be given a hearing. It is unnecessary to refer to the detailed procedure prescribed in this chapter for, as no notice of the application had in fact been given to the tenants in this case and they had not been heard on it, it must be held that the procedure laid down in that chapter had not been followed.The High Court accepted the contention of the tenants that the rules framed under S. 85 of the Tenancy Act had been repealed and that the rules in Ch. II of the rules framed under the Revenue Courts Act applied and should have been followed. It therefore held that there was an error apparent on the face of the record and thereupon set aside the orders of the revenue authorities challenged by the tenants.20. We have given our anxious consideration to this question but have been unable to agree with the view taken by the High Court. It seems to us that the rules made under S. 85 of the Tenancy Act had not laid down any special procedure. The only rule relevant in this connection is R. 34 to which we have earlier referred. All that that rule does is to require the Deputy Commissioner to check the list, a duty which under the section itself he has to perform, and also makes it necessary for him to examine the patwari for the purpose. The rules do not indicate how the application is to be heard, that is, whether ex parte or on notice.21. It seems clear to us that S. 85 itself requires an application made under it to be heard ex parte. First the section does not say that a notice of the application has to be served on that tenant concerned. Secondly, an application under the section can be made only after the notification prescribed has been issued. That notification decides that there has been a general refusal by tenants to pay rent. Therefore the section could not have contemplated that the question whether a tenant had so refused would be heard again on notice to him. Thirdly, in proceedings for recovery of land revenue, the persons liable are not heard and therefore when rent is directed to be recovered as land revenue, it is not contemplated that the tenants should be heard. It is of the essence of such proceedings that there shall be a summary and quick decision. If the procedure laid down in Ch. II of the rules framed under the Revenue Courts Act has to be followed, the entire object of S. 85 of the Tenancy Act would, in our view, be defeated. It seems to us that S. 85 would then really become redundant for then it would contemplate an application for realisation of rent giving rise to a contested proceeding governed by the procedure of a suit and would be a duplication of S. 78 of the Tenancy Act earlier referred to or of S. 80 of the same Act which provides for a suit in a revenue court for the recovery of rent both of which have to be heard as contested proceedings in the presence of the other side. Fourthly, cl. (b) of sub-sec. (4) of S. 85 of the Tenancy Act plainly indicates that the proceeding on an application under that section is to be ex parte. That clause contemplates a suit against a landlord by a tenant from whom an amount in excess of what is legally due has been recovered under the section. Now the amount recovered cannot of course exceed the amount passed as due by the Deputy Commissioner. So the suit contemplated in S. 85 (4) (b) would really be one to contest the correctness of the finding of the Deputy Commissioner as to the amount due. It would be inconceivable that such would be contemplated under the section if the amount has to be decided by the Deputy Commissioner after hearing the tenant. It is clearly not necessary that two contested proceedings, one after the other, in respect of the same question, between the same parties should be provided for.22. It seems, therefore, quite clear to us that S. 85 of the Tenancy Act contemplates that the application made under it shall be heard and determined in the absence of the tenant. Indeed this is not really questioned, for, the contention on behalf of the tenants is that the procedure followed is wrong, not because that is not the procedure laid down in the Tenancy Act, but because the Revenue Courts Act and the rules made thereunder had replaced the ex parte procedure provided by the Tenancy Act, by the procedure of a contested proceeding laid down in Ch. II of the rules framed under the Revenue Courts Act and this is the procedure which should have been followed.25. In our view, for the reasons aforesaid, the application under that section was properly and correctly heard and determined without notice to the tenants. Such hearing does not disclose any error at all.26. Then it is said that after the rescission of the Notification dated February 22, 1951, no further proceeding could be taken under S. 85 of the Tenancy Act. This contention also found favour with the High Court and with this view again we are unable to agree. Sub-sec. (1) of that section provides for the issue of a notification declaring that certain rents may be recovered as arrears of land revenue.It is then contended on behalf of the tenants that the notification of February 22, 1951, was not a valid notification because out of 125 tenants in village Khakharki 82 had paid rent and the remaining 43, who are the respondents in this appeal, were willing to pay but could not pay as the appellant was asking for larger sums than what were legitimately due to him. It is contended that on these facts it could not be said that there was a general refusal to pay rent within the meaning of S. 85 of the Tenancy Act. Hence, it is said that the Notification was ultra vires the section and inoperative. We do not think that the tenants can be allowed to raise this point in this Court. It does not appear to have been raised in the High Court. | 1 | 6,005 | 1,616 | ### Instruction:
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and not with the time during which the notification remains in force. That follows from the words "in any local area". There is no reference anywhere to the currency of the notification in point of time. Item 4 of group E in Sch. II to the Tenancy Act earlier referred to, leads to the same conclusion. That item provides that the period of limitation for an application under S. 85 is so long as notification remains in force. It is clear that if in sub-sec. (2) the words "in any local area to which a notification applies" meant, during the currency of the notification in point of time, there would have been no need to specify a period of limitation in Sch. II. We have also earlier pointed out that item 4 of group C in Sch. II has been repealed by the corresponding provisions in the Revenue Courts Act. Since the latter Act came into force, the position is that there is no period of limitation for an application under S. 85 of the Tenancy Act. It is impossible, therefore, to contend that the words "in any local area to which a notification made under sub-sec. (1) applies" indicate that the Deputy Commissioners power to act when an application under that section is made, exists only so long as the notification remains in force.28. It also seems to us that the Deputy Commissioners power to act arises on an application having been duly made under sub-sec. (2) of S. 85. Even if that application had to be made within the period that the notification remained in force, there would be nothing in sub-sec. (2) to lead to the conclusion that the Deputy Commissioners power to act on the application would also depend on the notification remaining in force. It may be stated here that in the present case the application had been made before the Notification had been rescinded. Once the notification under S. 85 is issued, power is certainly vested in the appropriate Revenue Officers to deal with and dispose of an application made under that section at a time the notification was in force and applied to the particular area. Subsequent cancellation of the notification would not divest the appropriate authority of the power already vested in him to dispose of the application which was properly and duly made under S. 85. In our view, steps can be taken under S. 85 of the Tenancy Act by the appropriate Revenue Officer for realisation of rent found due as arrears of land revenue even after the notification under that section has been rescinded.29. Reliance is placed by the learned advocate for the respondents on Crown v. Haveli, AIR 1949 Lah 191 (FB). In that case it was held that further proceedings under a temporary Act could not be continued after it had expired. It is contended that S. 85 of the Tenancy Act was really a temporary Act for it was brought into operation only upon a notification which notification was clearly not intended to be of permanent operation. We are unable to accept this view. The fact, if this be so, that S. 85 is brought into operation by a notification, and that that notification may not be of permanent operation, does not make the section a temporary enactment. We do not think that the principles applicable to interpretation of temporary Acts apply to the case of a provision like S. 85 of the Tenancy Act.30. Reliance is also placed on cl. (a) of sub-sec. (4) of S. 85 of the Tenancy Act. It is said that this clause by permitting suits for recovery of rents which have not been recovered under the section, indicates that after the rescission of the Notification, further proceedings cannot be taken under the section. It is contended that cl. (a) contemplates that it may so happen that when a notification is rescinded, the whole amount of rent in respect of which the application under S. 85 had been made, had not been recovered and that cl. (a) permits suit to be filed in respect of the amount which remained unrealised at the date the notification is rescinded. This argument seems to us to beg the question, for, it proceeds on the basis that the suit contemplated by cl. (a) is for the amount of rent which cannot be recovered under the section anymore because of the rescission of the notification. Clause (a) however may clearly apply to a case where in spite of a notification under the section, the landlord whether during its currency or later, chooses to proceed by way of a suit under the other provisions of the Tenancy Act.31. It is then contended on behalf of the tenants that the notification of February 22, 1951, was not a valid notification because out of 125 tenants in village Khakharki 82 had paid rent and the remaining 43, who are the respondents in this appeal, were willing to pay but could not pay as the appellant was asking for larger sums than what were legitimately due to him. It is contended that on these facts it could not be said that there was a general refusal to pay rent within the meaning of S. 85 of the Tenancy Act. Hence, it is said that the Notification was ultra vires the section and inoperative. We do not think that the tenants can be allowed to raise this point in this Court. It does not appear to have been raised in the High Court. The High Courts judgment makes no mention of it. Whether it is open for a Court to go behind the notification issued under S. 85 and decide its validity or not, this contention of the tenants raises a question of fact as to how many tenants had refused to pay rent. It also raises a question of interpretation of the words "general refusal to pay" in S. 85. None of these questions was raised at any earlier stage.
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procedure laid down in that chapter had not been followed.The High Court accepted the contention of the tenants that the rules framed under S. 85 of the Tenancy Act had been repealed and that the rules in Ch. II of the rules framed under the Revenue Courts Act applied and should have been followed. It therefore held that there was an error apparent on the face of the record and thereupon set aside the orders of the revenue authorities challenged by the tenants.20. We have given our anxious consideration to this question but have been unable to agree with the view taken by the High Court. It seems to us that the rules made under S. 85 of the Tenancy Act had not laid down any special procedure. The only rule relevant in this connection is R. 34 to which we have earlier referred. All that that rule does is to require the Deputy Commissioner to check the list, a duty which under the section itself he has to perform, and also makes it necessary for him to examine the patwari for the purpose. The rules do not indicate how the application is to be heard, that is, whether ex parte or on notice.21. It seems clear to us that S. 85 itself requires an application made under it to be heard ex parte. First the section does not say that a notice of the application has to be served on that tenant concerned. Secondly, an application under the section can be made only after the notification prescribed has been issued. That notification decides that there has been a general refusal by tenants to pay rent. Therefore the section could not have contemplated that the question whether a tenant had so refused would be heard again on notice to him. Thirdly, in proceedings for recovery of land revenue, the persons liable are not heard and therefore when rent is directed to be recovered as land revenue, it is not contemplated that the tenants should be heard. It is of the essence of such proceedings that there shall be a summary and quick decision. If the procedure laid down in Ch. II of the rules framed under the Revenue Courts Act has to be followed, the entire object of S. 85 of the Tenancy Act would, in our view, be defeated. It seems to us that S. 85 would then really become redundant for then it would contemplate an application for realisation of rent giving rise to a contested proceeding governed by the procedure of a suit and would be a duplication of S. 78 of the Tenancy Act earlier referred to or of S. 80 of the same Act which provides for a suit in a revenue court for the recovery of rent both of which have to be heard as contested proceedings in the presence of the other side. Fourthly, cl. (b) of sub-sec. (4) of S. 85 of the Tenancy Act plainly indicates that the proceeding on an application under that section is to be ex parte. That clause contemplates a suit against a landlord by a tenant from whom an amount in excess of what is legally due has been recovered under the section. Now the amount recovered cannot of course exceed the amount passed as due by the Deputy Commissioner. So the suit contemplated in S. 85 (4) (b) would really be one to contest the correctness of the finding of the Deputy Commissioner as to the amount due. It would be inconceivable that such would be contemplated under the section if the amount has to be decided by the Deputy Commissioner after hearing the tenant. It is clearly not necessary that two contested proceedings, one after the other, in respect of the same question, between the same parties should be provided for.22. It seems, therefore, quite clear to us that S. 85 of the Tenancy Act contemplates that the application made under it shall be heard and determined in the absence of the tenant. Indeed this is not really questioned, for, the contention on behalf of the tenants is that the procedure followed is wrong, not because that is not the procedure laid down in the Tenancy Act, but because the Revenue Courts Act and the rules made thereunder had replaced the ex parte procedure provided by the Tenancy Act, by the procedure of a contested proceeding laid down in Ch. II of the rules framed under the Revenue Courts Act and this is the procedure which should have been followed.25. In our view, for the reasons aforesaid, the application under that section was properly and correctly heard and determined without notice to the tenants. Such hearing does not disclose any error at all.26. Then it is said that after the rescission of the Notification dated February 22, 1951, no further proceeding could be taken under S. 85 of the Tenancy Act. This contention also found favour with the High Court and with this view again we are unable to agree. Sub-sec. (1) of that section provides for the issue of a notification declaring that certain rents may be recovered as arrears of land revenue.It is then contended on behalf of the tenants that the notification of February 22, 1951, was not a valid notification because out of 125 tenants in village Khakharki 82 had paid rent and the remaining 43, who are the respondents in this appeal, were willing to pay but could not pay as the appellant was asking for larger sums than what were legitimately due to him. It is contended that on these facts it could not be said that there was a general refusal to pay rent within the meaning of S. 85 of the Tenancy Act. Hence, it is said that the Notification was ultra vires the section and inoperative. We do not think that the tenants can be allowed to raise this point in this Court. It does not appear to have been raised in the High Court.
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Bharat Petroleum Corporation Ex-Employees Association And Ors Vs. Bharat Petroleum Corporation Ltd. And Ors | DA. In 1978, disputes were raised by the employees union including the dispute relating to the increase of the pension by merging DA with basic salary which had been referred to the Industrial Tribunal. In its award dated 24-10-1983, the Industrial Tribunal rejected demand 3 i.e. claim to increase the pension with merger of DA in the basic salary and computation of the pension on that basis. In respect of this rejected demand, the employees filed WP No. 1568 of 1985 and in respect of other demands allowed by the Tribunal, the respondent-employer filed WP No. 757 of 1984. Therein a compromise had been reached by and between the parties and the relevant part reads thus"(d) The old clerical employees who have retired from the Corporation prior to 1-1-1989 will be paid as one time lump sum compensation in lieu of awarded amount of HRA, gratuity and duty allowance (so far as divisional offices are concerned) amounting to Rs. 50, 000 within four weeks from that date." * Clause (4) is relevant for this purpose. It would articulate that "award in respect of items and demands other than those items settled above will operate"4. The Industrial Tribunal has stated in respect of the demand for increasing the pension at para 11 thus"The present demand of the Union is that the existing pension scheme should be modified and revised so to include(a) pension amount should be calculated on the wages/salaries inclusive of Dearness Allowance and other non-personal allowances(b) it should be assessed on the basis of 50% of wages/salaries last drawn by the workman without any deduction." * 5. Considering this aspect of the matter, the Tribunal had held that the demand for the revision and modification of the pension scheme, if granted, would impose an unreasonable financial burden on the company without any justification. It was, therefore, held that "no question arises for revising calculation of pension or checking the basis of calculating pension from basic wages to total wages. The demand is, therefore, rejected." In view of the terms of consent referred to hereinbefore, this finding on demand 3 for increasing the pension stood concluded and binds the appellants6. Subsequently, another attempt had been made by filing WP No. 2907 of 1989 to reopen the consent order seeking a declaration that the terms of consent dated 14-2-1989 in the writ petition do not bind the appellant Association. That writ petition was dismissed by the High Court on 19-2-1990 and that order was allowed to become final 7. Yet another attempt was made by filing a writ petition under Article 32 of the Constitution in this Court in WP No. 527 of 1989. This Court permitted the appellants by order dated 27-10-1989 to withdraw the petition with liberty to approach the appropriate forum. In consequence, the appellants filed WP No. 3571 of 1989, which, as stated earlier, was dismissed and the Division Bench concluded in its order thus "It is now well settled that in relation to persons drawn from different backgrounds and who have functioned under differential conditions of service, and who had their own advantages and disadvantages under the employment patterns in existence of different industrial units, no absolute equality could be predicated. It has been a mixed bag, that by and large, had satisfied the requirements of the employees and the conscience of industrial jurisprudence. The establishment in question had agile and agitating unions. The terms and conditions had been subject-matter of settlements and awards, and even judicial orders. When the establishment has punctiliously adhered to the requirements of such settlements, claims and judicial decisions, courts are not expected to break a ripple in the otherwise translucent waters of industrial relations." * 8. It is sought to be contended for the appellants that when the other employees similarly situated in the same respondent-Corporation, are receiving pensionary benefits on DA-merged basis, the denial thereof to the appellants is arbitrary unjust and unfair offending the right to equality and impinges on the livelihood of the retired employees violating Articles 14 and 21 of the Constitution. We find no substance in the contention. It is seen from the narrative that the appellants had specifically raised the demand for increasing the pension on the basis of DA merger with basic pay and demand that 50% of the total wages should be the foundation for calculation of the pension. In the industrial adjudication this demand was expressly negatived and was allowed to become final. That apart, it is seen that in the industrial adjudication the other demands also had been raised and while granting the benefits on other demands the parties - Management and the workmen entered into a compromise in the High Court, agreeing to pay to the employees retired prior to 1-1-1989 higher amount of Rs. 50, 000 and the working employees the benefit of Rs. 25, 0009. Thus, it could be seen that having consented to the adjudication made by the Tribunal and having allowed the industrial award to become final, it is not open to the appellants to go behind the award and claim pension on parity with others on the anvil of Articles 14 and 21. That apart the difference of payment of the pension had arisen on account of the revision of the wages etc. only in the industrial adjudication and demands by the union on behalf of the workmen. The discrimination was due to the judicial determination and not due to the acts of the respondents. It is no longer, therefore, open to the workmen to contend that they are entitled to parity in the payment of pension with the employees in the other regions. The retired employees in other regions are getting higher pension than the retired employees of Bombay region but it is only due to judicial adjudication10. Considered in the said perspective and in view of the facts and circumstances, we are of the view that the High Court was well justified in refusing to grant the relief claimed by the appellant. | 0[ds]8. It is sought to be contended for the appellants that when the other employees similarly situated in the sameare receiving pensionary benefits onbasis, the denial thereof to the appellants is arbitrary unjust and unfair offending the right to equality and impinges on the livelihood of the retired employees violating Articles 14 and 21 of the Constitution. We find no substance in the contention. It is seen from the narrative that the appellants had specifically raised the demand for increasing the pension on the basis of DA merger with basic pay and demand that 50% of the total wages should be the foundation for calculation of the pension. In the industrial adjudication this demand was expressly negatived and was allowed to become final. That apart, it is seen that in the industrial adjudication the other demands also had been raised and while granting the benefits on other demands the partiesManagement and the workmen entered into a compromise in the High Court, agreeing to pay to the employees retired prior tohigher amount of Rs. 50, 000 and the working employees the benefit of Rs. 25, 0009. Thus, it could be seen that having consented to the adjudication made by the Tribunal and having allowed the industrial award to become final, it is not open to the appellants to go behind the award and claim pension on parity with others on the anvil of Articles 14 and 21. That apart the difference of payment of the pension had arisen on account of the revision of the wages etc. only in the industrial adjudication and demands by the union on behalf of the workmen. The discrimination was due to the judicial determination and not due to the acts of the respondents. It is no longer, therefore, open to the workmen to contend that they are entitled to parity in the payment of pension with the employees in the other regions. The retired employees in other regions are getting higher pension than the retired employees of Bombay region but it is only due to judicial adjudication10. Considered in the said perspective and in view of the facts and circumstances, we are of the view that the High Court was well justified in refusing to grant the relief claimed by the appellant. | 0 | 1,294 | 407 | ### Instruction:
Evaluate the case proceeding to forecast the court's decision (1 for yes, 0 for no), and elucidate the reasoning behind this prediction with important textual evidence from the case.
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DA. In 1978, disputes were raised by the employees union including the dispute relating to the increase of the pension by merging DA with basic salary which had been referred to the Industrial Tribunal. In its award dated 24-10-1983, the Industrial Tribunal rejected demand 3 i.e. claim to increase the pension with merger of DA in the basic salary and computation of the pension on that basis. In respect of this rejected demand, the employees filed WP No. 1568 of 1985 and in respect of other demands allowed by the Tribunal, the respondent-employer filed WP No. 757 of 1984. Therein a compromise had been reached by and between the parties and the relevant part reads thus"(d) The old clerical employees who have retired from the Corporation prior to 1-1-1989 will be paid as one time lump sum compensation in lieu of awarded amount of HRA, gratuity and duty allowance (so far as divisional offices are concerned) amounting to Rs. 50, 000 within four weeks from that date." * Clause (4) is relevant for this purpose. It would articulate that "award in respect of items and demands other than those items settled above will operate"4. The Industrial Tribunal has stated in respect of the demand for increasing the pension at para 11 thus"The present demand of the Union is that the existing pension scheme should be modified and revised so to include(a) pension amount should be calculated on the wages/salaries inclusive of Dearness Allowance and other non-personal allowances(b) it should be assessed on the basis of 50% of wages/salaries last drawn by the workman without any deduction." * 5. Considering this aspect of the matter, the Tribunal had held that the demand for the revision and modification of the pension scheme, if granted, would impose an unreasonable financial burden on the company without any justification. It was, therefore, held that "no question arises for revising calculation of pension or checking the basis of calculating pension from basic wages to total wages. The demand is, therefore, rejected." In view of the terms of consent referred to hereinbefore, this finding on demand 3 for increasing the pension stood concluded and binds the appellants6. Subsequently, another attempt had been made by filing WP No. 2907 of 1989 to reopen the consent order seeking a declaration that the terms of consent dated 14-2-1989 in the writ petition do not bind the appellant Association. That writ petition was dismissed by the High Court on 19-2-1990 and that order was allowed to become final 7. Yet another attempt was made by filing a writ petition under Article 32 of the Constitution in this Court in WP No. 527 of 1989. This Court permitted the appellants by order dated 27-10-1989 to withdraw the petition with liberty to approach the appropriate forum. In consequence, the appellants filed WP No. 3571 of 1989, which, as stated earlier, was dismissed and the Division Bench concluded in its order thus "It is now well settled that in relation to persons drawn from different backgrounds and who have functioned under differential conditions of service, and who had their own advantages and disadvantages under the employment patterns in existence of different industrial units, no absolute equality could be predicated. It has been a mixed bag, that by and large, had satisfied the requirements of the employees and the conscience of industrial jurisprudence. The establishment in question had agile and agitating unions. The terms and conditions had been subject-matter of settlements and awards, and even judicial orders. When the establishment has punctiliously adhered to the requirements of such settlements, claims and judicial decisions, courts are not expected to break a ripple in the otherwise translucent waters of industrial relations." * 8. It is sought to be contended for the appellants that when the other employees similarly situated in the same respondent-Corporation, are receiving pensionary benefits on DA-merged basis, the denial thereof to the appellants is arbitrary unjust and unfair offending the right to equality and impinges on the livelihood of the retired employees violating Articles 14 and 21 of the Constitution. We find no substance in the contention. It is seen from the narrative that the appellants had specifically raised the demand for increasing the pension on the basis of DA merger with basic pay and demand that 50% of the total wages should be the foundation for calculation of the pension. In the industrial adjudication this demand was expressly negatived and was allowed to become final. That apart, it is seen that in the industrial adjudication the other demands also had been raised and while granting the benefits on other demands the parties - Management and the workmen entered into a compromise in the High Court, agreeing to pay to the employees retired prior to 1-1-1989 higher amount of Rs. 50, 000 and the working employees the benefit of Rs. 25, 0009. Thus, it could be seen that having consented to the adjudication made by the Tribunal and having allowed the industrial award to become final, it is not open to the appellants to go behind the award and claim pension on parity with others on the anvil of Articles 14 and 21. That apart the difference of payment of the pension had arisen on account of the revision of the wages etc. only in the industrial adjudication and demands by the union on behalf of the workmen. The discrimination was due to the judicial determination and not due to the acts of the respondents. It is no longer, therefore, open to the workmen to contend that they are entitled to parity in the payment of pension with the employees in the other regions. The retired employees in other regions are getting higher pension than the retired employees of Bombay region but it is only due to judicial adjudication10. Considered in the said perspective and in view of the facts and circumstances, we are of the view that the High Court was well justified in refusing to grant the relief claimed by the appellant.
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8. It is sought to be contended for the appellants that when the other employees similarly situated in the sameare receiving pensionary benefits onbasis, the denial thereof to the appellants is arbitrary unjust and unfair offending the right to equality and impinges on the livelihood of the retired employees violating Articles 14 and 21 of the Constitution. We find no substance in the contention. It is seen from the narrative that the appellants had specifically raised the demand for increasing the pension on the basis of DA merger with basic pay and demand that 50% of the total wages should be the foundation for calculation of the pension. In the industrial adjudication this demand was expressly negatived and was allowed to become final. That apart, it is seen that in the industrial adjudication the other demands also had been raised and while granting the benefits on other demands the partiesManagement and the workmen entered into a compromise in the High Court, agreeing to pay to the employees retired prior tohigher amount of Rs. 50, 000 and the working employees the benefit of Rs. 25, 0009. Thus, it could be seen that having consented to the adjudication made by the Tribunal and having allowed the industrial award to become final, it is not open to the appellants to go behind the award and claim pension on parity with others on the anvil of Articles 14 and 21. That apart the difference of payment of the pension had arisen on account of the revision of the wages etc. only in the industrial adjudication and demands by the union on behalf of the workmen. The discrimination was due to the judicial determination and not due to the acts of the respondents. It is no longer, therefore, open to the workmen to contend that they are entitled to parity in the payment of pension with the employees in the other regions. The retired employees in other regions are getting higher pension than the retired employees of Bombay region but it is only due to judicial adjudication10. Considered in the said perspective and in view of the facts and circumstances, we are of the view that the High Court was well justified in refusing to grant the relief claimed by the appellant.
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Hindustan Vegetable Oils Corpn. Ltd Vs. Progressive Industries | us see whether Section 22 qualifies Section 6 in any manner or whether it makes the appellant-Corporation liable to issue Declaration Forms for purchases made prior to 23-4-1984. The first thing to be noticed is that Section 22 and Section 6 being provisions of the same enactment have to be construed harmoniously; the effort should be to give effect to both. Be that as it may, let us see what does Section 22 say. It says that a contract entered into by the Ganesh Flour Mills Company Limited, with respect to the said mills, for any service, sale or supply and which was in force immediately before the appointed day (28-1-1984) shall on and from the expiry of a period of thirty days from the appointed day cease to have effect unless such contract is, before the expiry of the said period, ratified in writing by the Central Government or the government company (appellant-Corporation), as the case may be. Even where the Central Government or the appellant-Corporation ratifies such contract, it is open to them to make such alterations or modifications therein as they may think fit. The proviso to Section 22 says that the Central Government or the appellant-Corporation shall not omit to ratify a contract and shall not make any alteration or modification in the contract while ratifying it, unless it is satisfied that such contract is unduly onerous or has been entered into in bad faith or is detrimental to the interests of the Central Government or the government company. The proviso further says that before refusing to ratify or before effecting any alteration or modification in the contract, the Central Government/appellant-Corporation shall give the parties to the contract reasonable opportunity of being heard and shall record its reasons for refusal to ratify or for effecting alteration/modification, as the case may be. The High Court has understood Section 22 to mean that unless the existence of circumstances mentioned in proviso (a) are made out in these proceedings, the appellant-Corporation would be bound by any contract made by the Ganesh Flour Mills for supply of any goods prior to its vesting in the Central Government. With respect, we are unable to agree. A reading of Section 22 shows that unless ratified in writing within thirty days of the appointed day, no contract entered into by the Ganesh Flour Mills prior to 28-1-1984 (appointed day) shall be binding upon the Central Government/government company. The proviso, no doubt, states that the Central Government/appellant-Corporation shall not omit to ratify a contract and shall not effect any alteration or modification therein unless it is satisfied that such contract is unduly onerous or has been entered into in bad faith or is detrimental to their interest which satisfaction has to be arrived at after hearing the parties to the contract; the reasons for such action are also required to be recorded in writing. But this only means that if a particular contract is refused to be ratified or is altered or modified in any particular manner, the affected party (i.e. party to such contract) shall be entitled to question the same in accordance with law. But the writ petitions - from which these appeals arise were not such proceedings. These were not the writ petitions questioning the omission of the Central Government/appellant-Corporation to ratify a particular contract or contracts. The writ petitions - all of them - were filed for a different purpose, viz., for a direction to the appellant-Corporation to issue Declaration Forms (Form III-Kha) pursuant to the supply orders issued by the Ganesh Flour Mills (prior to its vesting under Section 3 of the Acquisition Act). Whereas the vesting in Central Government - as also in the appellant-Corporation - was in the year 1984, the present writ petitions were filed in 1987 (one writ petition) and in 1990 (the rest). If the petitioners wanted to question the non-ratification of any particular contract within thirty days of the date of vesting, they should have come to Court soon after the expiry of the said thirty days from the date of vesting. If they had done so, question would then have arisen whether Section 22 is attracted to such a contract, whether the contract which they were seeking to enforce was "a contract ... for any service, sale or supply and in force immediately before the appointed day" and so on. Such a writ petition would also have given an opportunity to the Central Government and the appellant-Corporation to explain and put forward their reasons for not ratifying the contract. We are of the opinion that having regard to the pleadings in the present writ petitions and the prayers asked for therein, the enquiry contemplated by Section 22 could not have been done or entertained in these writ petitions. The position, therefore, is that on account of non-ratification, the contract - assuming that it was a contract in force before the appointed day - ceased to have effect on expiry of thirty days from the appointed day, i.e., even before the appellant-Corporation came into the picture. The remedy of the respondents-writ petitioners in relation to the period prior to 23-4-1984 is not against appellant-Corporation. Any claim of theirs in respect of the period prior to the date of vesting (28-1-1984) can only be against the Central Government which was in management of the said company by virtue of the notification issued under the IDR Act. In this context, there may be a distinction between Central Government which has become the owner of the Ganesh Flour Mills by virtue of the vesting provided by Section 3 of the Acquisition Act and the Central Government which was in management of the said company by virtue of the notification under Section 18-AA of the IDR Act. Be that as it may, we need not pursue this line of thought inasmuch as these appeals are filed only by the appellant-Corporation and not by the Central Government. Accordingly, we confine ourselves to the liability of the appellant-Corporation alone | 1[ds]We are of the opinion that having placed orders for purchase of tins undertaking to supply Declaration Forms in Form III-Kha and having received the supplies on that basis, it is not open to the appellant-Corporation to refuse to issue the said Declaration Forms on the plea that they have used the tins for purposes other than those mentioned in Section 4-B(2). The user for purposes other than those mentioned in Section 4-B(2) was a voluntary act on the part of the Corporation. Therefore, it alone should take the blame for it and be responsible for consequences flowing therefrom. The Corporation ought not to have made such a representation while purchasing that quantity of tins which it did not intend to use for purposes specified in Section 4-B(2). The High Court cannot, therefore, be held to be in error in issuing the direction which it did. We, however, wish to provide a modification to the direction issued by the High Court in view of the provisions of sub-section (6) of Section 4-B of the Uttar Pradesh Act and particularly in view of the time-lapse since the controversy has arisen. In all likelihood, the assessments of the respondents under the Uttar Pradesh Act must have been completed long ago and the question of filing the Declaration Forms now, by the respondents, appears to be an impracticable thing. The modification is this : If the appellant is not in a position to issue the Declaration Forms, it may not issue them but in such a case it shall reimburse the respondents-selling dealers in full for the difference of amount of tax which the respondents were made to pay on account of the appellants failure to furnish the said Declaration Forms and also in respect of interest or the penalties, if any, imposed in that behalf and paid by them. We cannot appreciate the argument of Shri Nariman that the appellant-Corporation should be made liable only for reimbursing the difference of tax amount but not the interest. We see no justification behind such a plea. Indeed, if the selling dealers have been made liable to any penalties on account of their failure to produce in their assessments the Declaration Forms (which ought to have been furnished by the appellant-Corporation to such selling dealers) then the appellant-Corporation shall equally be liable to reimburse the selling dealers in that behalf asfirst thing to be noticed is that Section 22 and Section 6 being provisions of the same enactment have to be construed harmoniously; the effort should be to give effect to both. Be that as it may, let us see what does Section 22 say. It says that a contract entered into by the Ganesh Flour Mills Company Limited, with respect to the said mills, for any service, sale or supply and which was in force immediately before the appointed day (28-1-1984) shall on and from the expiry of a period of thirty days from the appointed day cease to have effect unless such contract is, before the expiry of the said period, ratified in writing by the Central Government or the government company (appellant-Corporation), as the case may be. Even where the Central Government or the appellant-Corporation ratifies such contract, it is open to them to make such alterations or modifications therein as they may think fit. The proviso to Section 22 says that the Central Government or the appellant-Corporation shall not omit to ratify a contract and shall not make any alteration or modification in the contract while ratifying it, unless it is satisfied that such contract is unduly onerous or has been entered into in bad faith or is detrimental to the interests of the Central Government or the government company. The proviso further says that before refusing to ratify or before effecting any alteration or modification in the contract, the Central Government/appellant-Corporation shall give the parties to the contract reasonable opportunity of being heard and shall record its reasons for refusal to ratify or for effecting alteration/modification, as the case may be. The High Court has understood Section 22 to mean that unless the existence of circumstances mentioned in proviso (a) are made out in these proceedings, the appellant-Corporation would be bound by any contract made by the Ganesh Flour Mills for supply of any goods prior to its vesting in the Central Government. With respect, we are unable to agree. A reading of Section 22 shows that unless ratified in writing within thirty days of the appointed day, no contract entered into by the Ganesh Flour Mills prior to 28-1-1984 (appointed day) shall be binding upon the Central Government/government company. The proviso, no doubt, states that the Central Government/appellant-Corporation shall not omit to ratify a contract and shall not effect any alteration or modification therein unless it is satisfied that such contract is unduly onerous or has been entered into in bad faith or is detrimental to their interest which satisfaction has to be arrived at after hearing the parties to the contract; the reasons for such action are also required to be recorded in writing. But this only means that if a particular contract is refused to be ratified or is altered or modified in any particular manner, the affected party (i.e. party to such contract) shall be entitled to question the same in accordance with law. But the writ petitions - from which these appeals arise were not such proceedings. These were not the writ petitions questioning the omission of the Central Government/appellant-Corporation to ratify a particular contract or contracts. The writ petitions - all of them - were filed for a different purpose, viz., for a direction to the appellant-Corporation to issue Declaration Forms (Form III-Kha) pursuant to the supply orders issued by the Ganesh Flour Mills (prior to its vesting under Section 3 of the Acquisition Act). Whereas the vesting in Central Government - as also in the appellant-Corporation - was in the year 1984, the present writ petitions were filed in 1987 (one writ petition) and in 1990 (the rest). If the petitioners wanted to question the non-ratification of any particular contract within thirty days of the date of vesting, they should have come to Court soon after the expiry of the said thirty days from the date of vesting. If they had done so, question would then have arisen whether Section 22 is attracted to such a contract, whether the contract which they were seeking to enforce was "a contract ... for any service, sale or supply and in force immediately before the appointed day" and so on. Such a writ petition would also have given an opportunity to the Central Government and the appellant-Corporation to explain and put forward their reasons for not ratifying the contract. We are of the opinion that having regard to the pleadings in the present writ petitions and the prayers asked for therein, the enquiry contemplated by Section 22 could not have been done or entertained in these writ petitions. The position, therefore, is that on account of non-ratification, the contract - assuming that it was a contract in force before the appointed day - ceased to have effect on expiry of thirty days from the appointed day, i.e., even before the appellant-Corporation came into the picture. The remedy of the respondents-writ petitioners in relation to the period prior to 23-4-1984 is not against appellant-Corporation. Any claim of theirs in respect of the period prior to the date of vesting (28-1-1984) can only be against the Central Government which was in management of the said company by virtue of the notification issued under the IDR Act. In this context, there may be a distinction between Central Government which has become the owner of the Ganesh Flour Mills by virtue of the vesting provided by Section 3 of the Acquisition Act and the Central Government which was in management of the said company by virtue of the notification under Section 18-AA of the IDR Act. Be that as it may, we need not pursue this line of thought inasmuch as these appeals are filed only by the appellant-Corporation and not by the Central Government. Accordingly, we confine ourselves to the liability of the appellant-Corporation alone | 1 | 7,147 | 1,490 | ### Instruction:
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us see whether Section 22 qualifies Section 6 in any manner or whether it makes the appellant-Corporation liable to issue Declaration Forms for purchases made prior to 23-4-1984. The first thing to be noticed is that Section 22 and Section 6 being provisions of the same enactment have to be construed harmoniously; the effort should be to give effect to both. Be that as it may, let us see what does Section 22 say. It says that a contract entered into by the Ganesh Flour Mills Company Limited, with respect to the said mills, for any service, sale or supply and which was in force immediately before the appointed day (28-1-1984) shall on and from the expiry of a period of thirty days from the appointed day cease to have effect unless such contract is, before the expiry of the said period, ratified in writing by the Central Government or the government company (appellant-Corporation), as the case may be. Even where the Central Government or the appellant-Corporation ratifies such contract, it is open to them to make such alterations or modifications therein as they may think fit. The proviso to Section 22 says that the Central Government or the appellant-Corporation shall not omit to ratify a contract and shall not make any alteration or modification in the contract while ratifying it, unless it is satisfied that such contract is unduly onerous or has been entered into in bad faith or is detrimental to the interests of the Central Government or the government company. The proviso further says that before refusing to ratify or before effecting any alteration or modification in the contract, the Central Government/appellant-Corporation shall give the parties to the contract reasonable opportunity of being heard and shall record its reasons for refusal to ratify or for effecting alteration/modification, as the case may be. The High Court has understood Section 22 to mean that unless the existence of circumstances mentioned in proviso (a) are made out in these proceedings, the appellant-Corporation would be bound by any contract made by the Ganesh Flour Mills for supply of any goods prior to its vesting in the Central Government. With respect, we are unable to agree. A reading of Section 22 shows that unless ratified in writing within thirty days of the appointed day, no contract entered into by the Ganesh Flour Mills prior to 28-1-1984 (appointed day) shall be binding upon the Central Government/government company. The proviso, no doubt, states that the Central Government/appellant-Corporation shall not omit to ratify a contract and shall not effect any alteration or modification therein unless it is satisfied that such contract is unduly onerous or has been entered into in bad faith or is detrimental to their interest which satisfaction has to be arrived at after hearing the parties to the contract; the reasons for such action are also required to be recorded in writing. But this only means that if a particular contract is refused to be ratified or is altered or modified in any particular manner, the affected party (i.e. party to such contract) shall be entitled to question the same in accordance with law. But the writ petitions - from which these appeals arise were not such proceedings. These were not the writ petitions questioning the omission of the Central Government/appellant-Corporation to ratify a particular contract or contracts. The writ petitions - all of them - were filed for a different purpose, viz., for a direction to the appellant-Corporation to issue Declaration Forms (Form III-Kha) pursuant to the supply orders issued by the Ganesh Flour Mills (prior to its vesting under Section 3 of the Acquisition Act). Whereas the vesting in Central Government - as also in the appellant-Corporation - was in the year 1984, the present writ petitions were filed in 1987 (one writ petition) and in 1990 (the rest). If the petitioners wanted to question the non-ratification of any particular contract within thirty days of the date of vesting, they should have come to Court soon after the expiry of the said thirty days from the date of vesting. If they had done so, question would then have arisen whether Section 22 is attracted to such a contract, whether the contract which they were seeking to enforce was "a contract ... for any service, sale or supply and in force immediately before the appointed day" and so on. Such a writ petition would also have given an opportunity to the Central Government and the appellant-Corporation to explain and put forward their reasons for not ratifying the contract. We are of the opinion that having regard to the pleadings in the present writ petitions and the prayers asked for therein, the enquiry contemplated by Section 22 could not have been done or entertained in these writ petitions. The position, therefore, is that on account of non-ratification, the contract - assuming that it was a contract in force before the appointed day - ceased to have effect on expiry of thirty days from the appointed day, i.e., even before the appellant-Corporation came into the picture. The remedy of the respondents-writ petitioners in relation to the period prior to 23-4-1984 is not against appellant-Corporation. Any claim of theirs in respect of the period prior to the date of vesting (28-1-1984) can only be against the Central Government which was in management of the said company by virtue of the notification issued under the IDR Act. In this context, there may be a distinction between Central Government which has become the owner of the Ganesh Flour Mills by virtue of the vesting provided by Section 3 of the Acquisition Act and the Central Government which was in management of the said company by virtue of the notification under Section 18-AA of the IDR Act. Be that as it may, we need not pursue this line of thought inasmuch as these appeals are filed only by the appellant-Corporation and not by the Central Government. Accordingly, we confine ourselves to the liability of the appellant-Corporation alone
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1
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Forms (which ought to have been furnished by the appellant-Corporation to such selling dealers) then the appellant-Corporation shall equally be liable to reimburse the selling dealers in that behalf asfirst thing to be noticed is that Section 22 and Section 6 being provisions of the same enactment have to be construed harmoniously; the effort should be to give effect to both. Be that as it may, let us see what does Section 22 say. It says that a contract entered into by the Ganesh Flour Mills Company Limited, with respect to the said mills, for any service, sale or supply and which was in force immediately before the appointed day (28-1-1984) shall on and from the expiry of a period of thirty days from the appointed day cease to have effect unless such contract is, before the expiry of the said period, ratified in writing by the Central Government or the government company (appellant-Corporation), as the case may be. Even where the Central Government or the appellant-Corporation ratifies such contract, it is open to them to make such alterations or modifications therein as they may think fit. The proviso to Section 22 says that the Central Government or the appellant-Corporation shall not omit to ratify a contract and shall not make any alteration or modification in the contract while ratifying it, unless it is satisfied that such contract is unduly onerous or has been entered into in bad faith or is detrimental to the interests of the Central Government or the government company. The proviso further says that before refusing to ratify or before effecting any alteration or modification in the contract, the Central Government/appellant-Corporation shall give the parties to the contract reasonable opportunity of being heard and shall record its reasons for refusal to ratify or for effecting alteration/modification, as the case may be. The High Court has understood Section 22 to mean that unless the existence of circumstances mentioned in proviso (a) are made out in these proceedings, the appellant-Corporation would be bound by any contract made by the Ganesh Flour Mills for supply of any goods prior to its vesting in the Central Government. With respect, we are unable to agree. A reading of Section 22 shows that unless ratified in writing within thirty days of the appointed day, no contract entered into by the Ganesh Flour Mills prior to 28-1-1984 (appointed day) shall be binding upon the Central Government/government company. The proviso, no doubt, states that the Central Government/appellant-Corporation shall not omit to ratify a contract and shall not effect any alteration or modification therein unless it is satisfied that such contract is unduly onerous or has been entered into in bad faith or is detrimental to their interest which satisfaction has to be arrived at after hearing the parties to the contract; the reasons for such action are also required to be recorded in writing. But this only means that if a particular contract is refused to be ratified or is altered or modified in any particular manner, the affected party (i.e. party to such contract) shall be entitled to question the same in accordance with law. But the writ petitions - from which these appeals arise were not such proceedings. These were not the writ petitions questioning the omission of the Central Government/appellant-Corporation to ratify a particular contract or contracts. The writ petitions - all of them - were filed for a different purpose, viz., for a direction to the appellant-Corporation to issue Declaration Forms (Form III-Kha) pursuant to the supply orders issued by the Ganesh Flour Mills (prior to its vesting under Section 3 of the Acquisition Act). Whereas the vesting in Central Government - as also in the appellant-Corporation - was in the year 1984, the present writ petitions were filed in 1987 (one writ petition) and in 1990 (the rest). If the petitioners wanted to question the non-ratification of any particular contract within thirty days of the date of vesting, they should have come to Court soon after the expiry of the said thirty days from the date of vesting. If they had done so, question would then have arisen whether Section 22 is attracted to such a contract, whether the contract which they were seeking to enforce was "a contract ... for any service, sale or supply and in force immediately before the appointed day" and so on. Such a writ petition would also have given an opportunity to the Central Government and the appellant-Corporation to explain and put forward their reasons for not ratifying the contract. We are of the opinion that having regard to the pleadings in the present writ petitions and the prayers asked for therein, the enquiry contemplated by Section 22 could not have been done or entertained in these writ petitions. The position, therefore, is that on account of non-ratification, the contract - assuming that it was a contract in force before the appointed day - ceased to have effect on expiry of thirty days from the appointed day, i.e., even before the appellant-Corporation came into the picture. The remedy of the respondents-writ petitioners in relation to the period prior to 23-4-1984 is not against appellant-Corporation. Any claim of theirs in respect of the period prior to the date of vesting (28-1-1984) can only be against the Central Government which was in management of the said company by virtue of the notification issued under the IDR Act. In this context, there may be a distinction between Central Government which has become the owner of the Ganesh Flour Mills by virtue of the vesting provided by Section 3 of the Acquisition Act and the Central Government which was in management of the said company by virtue of the notification under Section 18-AA of the IDR Act. Be that as it may, we need not pursue this line of thought inasmuch as these appeals are filed only by the appellant-Corporation and not by the Central Government. Accordingly, we confine ourselves to the liability of the appellant-Corporation alone
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Union of India and Another Vs. Smt. Shanti Devi Etc | rule that whenever a method of capitalisation of net profit was adopted, the return from gilt- edged securities was to be the basis. That should depend on a variety of circumstances such as the nature of the property, the normal return which may be expected on like investment, the state of the capital market and several such factors. For example, it is well known that a large investment yields a higher return that a smaller investment and similarly a long term investment yields a better return than a short term investment. A different principle and a different multiplier may have to be applied to different kinds of property, such as, agricultural land, residential buildings, industrial undertakings etc. In the case of a going business or industrial undertaking t he appropriate multiplier may be determined on the basis of the annual return of an undertaking with similar capital investment. If the Legislature thinks that a return of 12 1/2% in the case of a large industrial undertaking such as the petitioners is reasonable and on that basis adopts the multiplier `eight, it is not for this Court to sit in judgment and attempt to determine a more appropriate multiplier. We are unable to see how the adopt ion of the particular multiplier in the present case is the result of the application of any irrelevant principle. We do not, therefore, agree with the submission of Shri Sen., In the above case the Court felt that if 12 1/ 2% was the annual return, the adoption of multiplier `eight could not be unreasonable in the year 1962 in the case of an industrial undertaking. 10. A perusal of the decisions referred to above and some others which have not been cited here shows that in India the multiplier which is adopted in determining the compensation by the capitalisation method has been 33 1/3, 25, 20, 16 3/2 11 and 8. The number of years purchase has gradually, decreased as the prevailing rate of interest realisable from safe investments has gradually increased the higher the rate of interest, the lower the number of years purchase. This method of valuation involves capitalising the net income that the property can fairly be expected to produce and the rate of capitalisation is the percentage of return on his investment that a willing buyer would expect from the property during the relevant period. It was once felt that the relevant rate of interest that should be taken into consideration was the interest which gilt-edged securities or Government bonds would normally fetch. The safety and liquidity of the investment in bonds were relied on as the twin factors to take the view that the interest on gilt-edged securities should alone be taken into consideration. This was at a time when there were not many avenues of safe investments and investment in private commercial concerns was not quite reliable. But from the year 1959-60 circumstances have gradually changed. There are many State Banks and nationalised banks in which deposits made are quite safe. Even in the share market we have many `blue chips which command stability and other attendant benefits such as the possibility of issue of bon us shares and rights shares and appreciation of the value of the shares themselves. They are attracting a lot of capital investment. A return of 10% per annum on such safe investments is almost assured. Today nobody thinks of in vesting on land which would yield a net income of just 5% to 6% per annum. A higher return of the order of 10% usually anticipated. Even in the years 1962 and 1963 investor in agricultural land expected annual net return of at least 8%. It means that if the land yielded a net annual income Rs. 8 a willing buyer of land would have paid for it Rs. 100 i. e. a little more than 12 times the annual net income. The multiplier for purposes of capitalisation would be about thirteen.On the question of the potential value of the lands involved in these cases, we may state here that there is no evidence suggesting that the lands were likely to be in demand for any other purpose. They were all agricultural lands or banjar lands on which no agricultural operations could be carried on. They were situated in a hilly tract. There were no potential buyers who were in need of this vast tract of 70, 000 acres. If the project work had not been undertaken possibly there would have been no occasion for the sale of all these lands in one lot. 11. Having regard to all the facts and circumstances of the case we feel that the High Court and the District Court erred in applying the twenty years, purchase rule in the case of the se lands which were acquired in the years 1962 and 1963. The proper principle was fifteen years purchase rule. The District Judge awarded compensation in all these cases at Rs. 1, 000 per kanal for the land of the first category by applying the twenty years purchase rule and has fixed the compensation for other lands on the above basis. The High Court has affirmed it. Since we have held that the proper basis of fixing compensation in these cases was fifteen years purchase rule, the compensation awarded for lands in these cases should be reduced by one-fourth i.e. for lands of the first category compensation payable should be Rs. 750 per kanal instead of Rs. 1, 000 per kanal. Similarly in the case of other lands al so there should be a reduction of the compensation awarded by one-fourth. The claimants shall get solatium of 15% on the compensation computed on the above basis and they shall be paid interest at the rate ordered by the District Judge on the aggregate amount from the date of taking possession of the land till the date of payment. The orders passed by the High Court in all these cases shall stand modified accordingly. | 1[ds]Having regard to all the facts and circumstances of the case we feel that the High Court and the District Court erred in applying the twenty years, purchase rule in the case of the se lands which were acquired in the years 1962 and 1963. The proper principle was fifteen years purchase rule. The District Judge awarded compensation in all these cases at Rs. 1, 000 per kanal for the land of the first category by applying the twenty years purchase rule and has fixed the compensation for other lands on the above basis. The High Court has affirmed it. Since we have held that the proper basis of fixing compensation in these cases was fifteen years purchase rule, the compensation awarded for lands in these cases should be reduced by one-fourth i.e. for lands of the first category compensation payable should be Rs. 750 per kanal instead of Rs. 1, 000 per kanal. Similarly in the case of other lands al so there should be a reduction of the compensation awarded by one-fourth. The claimants shall get solatium of 15% on the compensation computed on the above basis and they shall be paid interest at the rate ordered by the District Judge on the aggregate amount from the date of taking possession of the land till the date of payment. The orders passed by the High Court in all these cases shall stand modified accordingly. | 1 | 4,478 | 257 | ### 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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rule that whenever a method of capitalisation of net profit was adopted, the return from gilt- edged securities was to be the basis. That should depend on a variety of circumstances such as the nature of the property, the normal return which may be expected on like investment, the state of the capital market and several such factors. For example, it is well known that a large investment yields a higher return that a smaller investment and similarly a long term investment yields a better return than a short term investment. A different principle and a different multiplier may have to be applied to different kinds of property, such as, agricultural land, residential buildings, industrial undertakings etc. In the case of a going business or industrial undertaking t he appropriate multiplier may be determined on the basis of the annual return of an undertaking with similar capital investment. If the Legislature thinks that a return of 12 1/2% in the case of a large industrial undertaking such as the petitioners is reasonable and on that basis adopts the multiplier `eight, it is not for this Court to sit in judgment and attempt to determine a more appropriate multiplier. We are unable to see how the adopt ion of the particular multiplier in the present case is the result of the application of any irrelevant principle. We do not, therefore, agree with the submission of Shri Sen., In the above case the Court felt that if 12 1/ 2% was the annual return, the adoption of multiplier `eight could not be unreasonable in the year 1962 in the case of an industrial undertaking. 10. A perusal of the decisions referred to above and some others which have not been cited here shows that in India the multiplier which is adopted in determining the compensation by the capitalisation method has been 33 1/3, 25, 20, 16 3/2 11 and 8. The number of years purchase has gradually, decreased as the prevailing rate of interest realisable from safe investments has gradually increased the higher the rate of interest, the lower the number of years purchase. This method of valuation involves capitalising the net income that the property can fairly be expected to produce and the rate of capitalisation is the percentage of return on his investment that a willing buyer would expect from the property during the relevant period. It was once felt that the relevant rate of interest that should be taken into consideration was the interest which gilt-edged securities or Government bonds would normally fetch. The safety and liquidity of the investment in bonds were relied on as the twin factors to take the view that the interest on gilt-edged securities should alone be taken into consideration. This was at a time when there were not many avenues of safe investments and investment in private commercial concerns was not quite reliable. But from the year 1959-60 circumstances have gradually changed. There are many State Banks and nationalised banks in which deposits made are quite safe. Even in the share market we have many `blue chips which command stability and other attendant benefits such as the possibility of issue of bon us shares and rights shares and appreciation of the value of the shares themselves. They are attracting a lot of capital investment. A return of 10% per annum on such safe investments is almost assured. Today nobody thinks of in vesting on land which would yield a net income of just 5% to 6% per annum. A higher return of the order of 10% usually anticipated. Even in the years 1962 and 1963 investor in agricultural land expected annual net return of at least 8%. It means that if the land yielded a net annual income Rs. 8 a willing buyer of land would have paid for it Rs. 100 i. e. a little more than 12 times the annual net income. The multiplier for purposes of capitalisation would be about thirteen.On the question of the potential value of the lands involved in these cases, we may state here that there is no evidence suggesting that the lands were likely to be in demand for any other purpose. They were all agricultural lands or banjar lands on which no agricultural operations could be carried on. They were situated in a hilly tract. There were no potential buyers who were in need of this vast tract of 70, 000 acres. If the project work had not been undertaken possibly there would have been no occasion for the sale of all these lands in one lot. 11. Having regard to all the facts and circumstances of the case we feel that the High Court and the District Court erred in applying the twenty years, purchase rule in the case of the se lands which were acquired in the years 1962 and 1963. The proper principle was fifteen years purchase rule. The District Judge awarded compensation in all these cases at Rs. 1, 000 per kanal for the land of the first category by applying the twenty years purchase rule and has fixed the compensation for other lands on the above basis. The High Court has affirmed it. Since we have held that the proper basis of fixing compensation in these cases was fifteen years purchase rule, the compensation awarded for lands in these cases should be reduced by one-fourth i.e. for lands of the first category compensation payable should be Rs. 750 per kanal instead of Rs. 1, 000 per kanal. Similarly in the case of other lands al so there should be a reduction of the compensation awarded by one-fourth. The claimants shall get solatium of 15% on the compensation computed on the above basis and they shall be paid interest at the rate ordered by the District Judge on the aggregate amount from the date of taking possession of the land till the date of payment. The orders passed by the High Court in all these cases shall stand modified accordingly.
### Response:
1
### Explanation:
Having regard to all the facts and circumstances of the case we feel that the High Court and the District Court erred in applying the twenty years, purchase rule in the case of the se lands which were acquired in the years 1962 and 1963. The proper principle was fifteen years purchase rule. The District Judge awarded compensation in all these cases at Rs. 1, 000 per kanal for the land of the first category by applying the twenty years purchase rule and has fixed the compensation for other lands on the above basis. The High Court has affirmed it. Since we have held that the proper basis of fixing compensation in these cases was fifteen years purchase rule, the compensation awarded for lands in these cases should be reduced by one-fourth i.e. for lands of the first category compensation payable should be Rs. 750 per kanal instead of Rs. 1, 000 per kanal. Similarly in the case of other lands al so there should be a reduction of the compensation awarded by one-fourth. The claimants shall get solatium of 15% on the compensation computed on the above basis and they shall be paid interest at the rate ordered by the District Judge on the aggregate amount from the date of taking possession of the land till the date of payment. The orders passed by the High Court in all these cases shall stand modified accordingly.
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Beliram Bhalaik Vs. Jai Beharilal Khachi and Ors | witness completed the result-sheet and declared the result finally. He further swore that there was no pandamonium in the counting Hall during this interval. Alock clearly stated that no request for recount or for grant of time to make an application for recount was made to him by Shri Beli Ram Bhalaik. He however admitted that one or two persons had raised slogans for about half a minute. They stopped when the witness asked them to do so The witness added that the result of the election was finally declared at 1-30 p.m. and thereafter at 2 05 p.m. When counting of votes of Mahasu Constituency was going on, Bhalaik made the application Ex. D.W. 13/2. The witness then made an order rejecting it. In cross-examination, Alock stated that while presenting the application Ex. D W. 13/2, Bhalaik had represented that he could not present the application at the appropriate time because he had sent his men outside and he could not arrive in time because he was not permitted to enter as the counting for another constituency was going on. The witness reiterated that even at that time Bhalaik did not complain that a lot of mistakes had been committed in the counting of votes. 41. Alock was a responsible Government Officer. He was not interested in either side. He appears to have given evidence in a straight and forth- right manner. His statement was therefore rightly accepted in preference to those of the petitioner and his Counting Agents. 42. Alocks version receives full assurance from the circumstances that even in the belated application Ex. D.W.13/2 no irregularity or illegality, whatever, in the counting was mentioned. All that was stated therein was that the appellant was not satisfied with the counting and therefore wanted a recount. It did not contain any ground on which a recount was sought, and as such, did not comply with the mandatory requirement of Rule 63(2) of the Conduct of Election Rules, 1961, which provides that after the announcement of the result of counting, a candidate or in his absence his election agent or any of his counting agents may apply in writing to the Returning Officer to recount the votes either wholly or in part stating the grounds on which he demands such recount. A whimsical and bald statement of the candidate that he is not satisfied with the counting, is not tantamount to a statement of the grounds within the contemplation of Rule 63(2). The application was thus not a proper application in the eye of law. It was not supplemented even by an antecedent or contemporaneous oral statement of the author or any of his agents with regard to any irregularities in the counting. It was liable to be rejected summarily under Sub-rule (3) of Rule 63, also. That apart, it was presented about half an hour after the Returning Officer had completed and signed the result sheet in Form 20. Sub-rule (6) of the Rule expressly debars the Returning Officer from entertaining an application for recount at such a late stage. The returning Officer had therefore, rightly rejected the application as belated. 43. From all that has been said above, it is clear that the allegations of irregularities and illegalities in the counting of votes have been subsequently invented as an after-thought. That apart, these allegations in the petition are more or less vague and general There are lacking in malarial facts The Evidence adduced in regard to this issue also does not make out a prima facie case for a recount. 44. Since the pronouncement of this Court in Ram Sewak Yadav v. Hussain Kamal Kidwai and Ors. (1) it is settled law that Sections 100(1)(d)(iii). 101, 102 of the Act and Rule 93 of the Conduct of Election Rules, 1961 implicitly give the Court trying an election petition the power to order a recount or production of the ballot papers and permit their inspection by the parties. Since an order for a recount touches upon the secrecy of the ballot papers, it should not be made lightly or as a matter of course. Although no caste iron rule of universal application can be or has been laid down, yet from a beadroll the decisions of this Court, two broad guide lines are discernible : that the Court would be justified in ordering a recount or permitting inspection of the ballot papers only where (i) all the material facts on which the allegations of irregularity or illegality in counting are founded, are pleaded adequately in the election petition, and (ii) the Court Tribunal trying the petition is prima facie satisfied that the making of such an order is imperatively necessary to decide the dispute and to do complete and effectual justice between the parties see Ram Sewak Yadav v. Hussain Kamal Kidwai (supra) Dr. Jagjit Singh v. Giani Kartar Singh, Jitendra, (2) Bahadur Singh v. Krihna Behari (3), and Smt. Sumitra Devi v. Shri Sheo Shankar Prasad Yadav (4). 45. In the present case neither of the tests above mentioned has been satisfied. The allegations in the petition are not precise. They are in style general and vague floating on auspicious and beliefs of the petitioner, rather than resting on tetra firma of material facts. As was stressed in Ram Sewak Yadavs case (supra), mere allegations that the petitioner suspects or believes that there has been improper reception, refusal or rejection of votes or there have been irregularities in the counting of ballot papers will not be sufficient to support an order of recount and inspection. It is an irony of things that in elections, as in horse racing, sure beliefs, hopes and expectations of the contestants often end up as also runs. The allegations of irregularities in counting appearing in the petition stem from such a sure belief turned unsure We therefore do not find any substance in the contention of the appellant that the High Court was in error in rejecting the appellants request for a recount. | 0[ds]Since we agree with the reasoning and the conclusions arrived at by the High Court, we will not reappraise the evidence in detail. We will discuss only the broad salient features of the evidence adduced in the case.9. Both Gupta and Kishori Lal were examined in rebuttal as DWs. 16 and 17. They categorically discounted the story of the petitioner. Guptas statement was supported by the entries in his official diary according to which on 7-2-1972, he was travelling between Kumarsain and Jarol in a truck. On that day he never went anywhere in a jeep. Kishori Lal stated that he did not even know who Gupta was and never travelled with him. Sirkek was, admit tedly, related to Bhalaik and was his principal worker in the election campaign . Both were highly interested witnesses and there was absolutely no corroboration of their statements and there was absolutely no corroboration of their statements from an independent source. As against them, there was no ground to disbelieve the version of D.W. 16 which had been confirmed by the official records and the authenticity of which had not been challenged. It was thus rightly that the appellant bad utterly failed to substantiate these allegations.10. It was further alleged that on 8-2-1972 and 9-2-1972, Sirkek and Bhalaik met Kishori Lal at the Coffee House, Simla and had a talk with him. During that talk Kishori Lal confessed that all his election expenses were being borne by Khachi.11. Again on this point, the only evidence adduced consisted of the oral statements of Sirkek and Bhalaik. Admittedly, Kishori Lal was a nominee of the Communist Party of India. This circumstances itself goes a long way to falsify the assertion of the appellant that Kishori Lal had been set up by Khachi. Moreover, there was no good reason to disbelieve the sworn word of Kishori Lal that his election was being financed by the C.P.I. Thus this allegation also remained unsubstantiated.12. Next is the charge of that on 24-2-1972, Khachi went to the temple of Devta Kalu Nag at Jadun. He offered eleven Rupees to the deity. Gur is the medium through whom the deity conveys his commands. Khachi utilized the services of Chet Ram Gur (P. W. 12) for conveying the commands of the deity that the devotees should vote for Khachi. According to the averments in the petition Chet Ram Gur distributed the chavals (rice) in villages Barru, Kathla, Roni and Kelvi among the worshippers of Devta Kalu Nag in token of conveying a message of the Devta that the recipients should vote for Khachi. In the case of those voters who refused to receive the token, the Gur threw the rice in their houses indicating that if they did not vote for Khachi, they would be visited by the deitys displeasure.14. In our opinion, the very story of distribution of chavals by the Gur from house to house in the manner alleged was improbable. The High Court has held, and quite rightly, that such distribution was not in keeping with the practice of Devta Kalu Nag.15. Khachi testified that distribution of chavals to the devotees is a ritual of blessing performed by the Gur in the temple itself and that such tokens of benediction on behalf of the deity are never given away from the temple to persons in furtherance of a private purpose. On this point, Khachis statement receives confirmation from no less a person than Jwala Parshad a retired District Magistrate, examined as PW.16 by the petitioner. Jwala Parshad stated that chavals are distributed only in the presence of the deity within the temple itself.16. P.W 12 Chet Ram claimed to be the Gur of Devta Kalu Nag. He stated that he had distributed chavals among the worshippers of the Devta in villages Kelvi, Barhu, Kathla and Rihmi, at the instance of Khachi as the latter had promised to please the former. If any of those persons refused to accept the chavals, the witness placed them in his house. In this quaint fashion, the witness placed them in his house. In this quaint fashion the witness claims to have influenced in the name of the deity about 200 or 300 electors to vote for Khachi.17. In cross-examination, he named nine persons to whom, the chavals were offered Out of them, only one, namely, P.W Atma Ram has been examined. This Atma Ram is none other than the paternal uncle of Chet Ram. In an unguarded moment Chet Ram unwittingly admitted that P.W.II Atma Ram was a Congress man, although he tried to recent it subsequently. It was further elicited from Chet Ram, in cross-examination, that P.W. Sadh Ram Ex-M.L.A. was a Congress worker and belonged to his brotherhood. Chet Ram further conceded that he did not know Khachi previously. He was then asked what was the reward in consideration of which he had allegedly gone from house to house to distribute chavals to canvass votes for Khachi in the name of Devta. He could not give a satisfactory answer. He prevaricated. He ultimately said that he was not seeking any reward from Khachi for himself. It is difficult to believe that version. In this highly commercial age, even a Gur or priest of a temple is not expected to do as Chet Ram claims to have done, without any reward or consideration of a temporal nature or promise of material gain. On the other hand, there was reason to suspect that he was coming forward to support the charge leveled by the petitioner, under the influence of P.W. Sadh Ram.18. P.W. 11 Atma Ram of Kelvi, stated not only with regard to the offer of chavals to him, but also about their distribution by Chet Ram in other houses in the villages, occupied by 300 or 400 persons. He betrayed an anxiety to make his statement co-extensive and congruent with that of his nephew, Chet Ram. He was as revealed by Chet Ram a Congress man and as such was an interested witness. His version was full of prevarications and contradictions. At one stage, under the stress of cross-examination, he admitted that the Gur of the Devta does not go to the houses or shops of Harijans for giving the chavals. His aforesaid admission therefore, was destructive of his version in examination-in-chief that the Gur had come to the shop of Nayarku Cobbler and offered chavals to one Manohar Lal there.19. P.W. 25 Sadh Ram did not give any direct evidence with regard to the distribution of chavals by Chet Ram. He however, stated that he had come to know about this fact one day after the distribution. The witness made enquiries about it. He has admittedly been collecting evidence to support the charges in the petition. He is the Chairman of the District Congress Committee for the last seven years. He is a close associate of Bhalaik and has been ardently supporting him during and after the election. It was therefore not without reason that the High Court found that PWs. Atma Ram and Chet Ram were coming forward to propound the story of the distribution of the chavals at the behest of P.W. Sadh Ram.20. Moreover, from the evidence produced in rebuttal, it had been shown that P.W. Chet Ram was not the sole Gur of Devta Kalu Nag. D W. 14 Natu deposed that he was the senior Gur of this deity. Notices, dated January 21, 1973, (Ex. D W. 14/1) issued to Natu and his reply (Ex D W. 14/2) dated February 16, 1973, confirmed the fact of Natu being the senior Gur. There was complaint against Natu and an enquiry was held against him But the fact remains that as the material time, Natu was the senior Gur of Nag Devta.21. It is significant to rote that after the elections of 1969, also, Bhalaik had filed an election petition challenging the election of the successful candidate from this constituency . In that election petition, a similar corrupt practice was alleged and Natu was described as the Gur of Devta Kalu Nag of Jadun. Ex. D.W. 12/1 is a copy of that petition. Bhalaik was confronted with that allegation. Instead of giving any explanation, he feigned ignorance about it.22. In the witness-stand Khachi categorically discounted the story set up by P.Ws. Chet Ram and Atma Ram.23. The learned trial Judge who had the opportunity of observing the demeanour of the aforesaid P.Ws. has found the evidence rendered by them as unworthy of credit. There is no good reason for us to take a different view of this evidence.24. Another cognate charge of distribution of chavals on behalf of Devta Doom of Gumtha/Kadrol by Balak Ram Gur, among the worshippers of that Devta in villages Kadrol, Mehn, Mahussu and Dhar was also made in the petition. P.W. 13, Mansa Ram and his brother and P.W. 14 Charan were examined in respect of that charge. P.W. 13 was admittedly a Congress worker. These P.Ws. stated that Khachi had represented that the jungle of Devta Doom could be saved from confucation if they voted for Khachi. Bhalaik stated that Khachi had taken those persons to the Deputy Commissioner, Alock on 1-3-1972 and obtained permission for the auction of trees.25. Balak Ram Gur of the Devta and the Deputy Commissioner, Alok were examined in rebuttal at D.W. 10 and D.W. 13 respectively. Balak Ram, contradicted the statements of the petitioner and his P.Ws. regarding this charge. No question was put to Alok about the facts alleged by Bhalaik. This charge was too flimsy and vague to carry conviction.27. Khachi denied having said any such thing in his speech. After consulting his tour diary, D.W. 16 Gupta stated that from February 27, 1972 to February 29, 1972, he was on tour from Kumarsain to Kondru. He returned to his headquarter at Kumarsain on March 1, 1972. On February 28,1972 he travelled from Baragaon to Koti and from Koti to Noeulinand came back to Kangal. The witness admitted that Jwala Parshad had met him at Kangal and asked him about the water course. He denied that he met the appellant at Kangal or had any talk with him regarding the water supply.28. Narain Datt D.W. 15, President of the Kangal Panchayat stated that he was present in the election meeting presided over by Jwala Parshad, according to the witness, all that Khachi had said was, that he would make efforts to see that water supply was made available to the village. Narain Dutt was an independent witness of status. The trial Judge therefore rightly preferred his statement to the vague and interested evidence given P.W. 16 and the petitioner.29. The next charge was that on May 29, 1972 A.C. Gupta, S.D.O. went to the house of P.W. 1 Mastram at village Khemali and there asked the Mates and Beldars of his Department to vote for Khachi.30. P.W. 1 Mastram, P.W. 2, Dilaram, P. W. 3 Jainand and P.W. 4 Siaram were examined to establish this charge. P.W 1 Mastram is of village Khemli. He stated that he did not know Gupta previously. On February 29, 1972, Gupta came on the site of the work on the road, near the house of the witness. Somebody pointed out that he was Gupta, S. D. O. Gupta then addressed the gathering which consisted of 4 or 2 mates and 100 Beldars, that they should vote for Khachi. P. Ws. however said that Gupta did not represent that he knew Khachi. In cross-examination, it was revealed that the witness was totally ignorant about the names of the Beldars, the location of their houses or like particulars. Witness had no talk with the Beldars after that day. He however, informed about what Gupta had said, to Bhalaik after the declaration of the election result.31. It is manifest from a scrutiny of the statements of P.Ws. 2,3 and 4 that they had all been collected and brought to court by P.W. 1 Mastram. It is further noteworthy that P.W. 1 did not say that Gupta was canvassing votes for Khachi at the request of the latter. P.W. 1 could not name any month of the English calendar. The very fact that he mentioned the date February 29, 1972, as the date of Guptas visit, showed that this act had been put into his month by someone else.32. Gupta as D W. 16 categorically denied his visit to the house of Mastram on February 29, 1972 or his having asked Mastram or the Mates and Beldars to vote for Khachi. He explained that on February 29, 1972, he was supervising the construction work on Baragaon-Matiana Road and in that connection he might have visited and inspected the site of the work at Khemli for a couple of minutes. He stated that D.W. 6 Narsukh and D W. 7 Manna were (he Mutes working on that road on Feb. 29, 1972 Gupta had inspected the work done by these persons. Gupta further stated that P.Ws. Jainand and Sisram had a grudge against him. Jainand wanted the witness to post his son at a particular station. The witness could not oblige him Similarly, Sisram was unhappy in connection with a dispute relating to the marriage of Sisrams sister.33. Mates Narsukh and Manna, were examined in rebuttal by Khachi. Both of them refuted the version of PWs. Mastram, Jainand and Sisram.34. In the circumstances of the case, it was not prudent to accept the mere ipse dixit of these P.Ws. Their statements had not been corroborated by any reliable documentary evidence. In any case, it could not be preferred to that of D.Ws. Gupta, Narsukh and Manna. In the ultimate analysis, the High Court was right in holding that this charge also had not been established beyond reasonable doubt.40. The version of the appellant and his aforesaid witnesses stood in sharp contradiction to that of Alock, the Returning Officer. The latter stated that no complaint of any irregularity in counting or of the use of any unfair means in counting was made to him. Explaining the procedure followed by him, he stated that after the counting, he prepared the counting sheet and informally announced the result. He then paused for five to seven minutes to ascertain if any application or request for a re-count was forth- coming. But no such request was made to him. Consequently after the expiry of those 5 or 7 minutes, the witness completed the result-sheet and declared the result finally. He further swore that there was no pandamonium in the counting Hall during this interval. Alock clearly stated that no request for recount or for grant of time to make an application for recount was made to him by Shri Beli Ram Bhalaik. He however admitted that one or two persons had raised slogans for about half a minute. They stopped when the witness asked them to do so The witness added that the result of the election was finally declared at 1-30 p.m. and thereafter at 2 05 p.m. When counting of votes of Mahasu Constituency was going on, Bhalaik made the application Ex. D.W. 13/2. The witness then made an order rejecting it. In cross-examination, Alock stated that while presenting the application Ex. D W. 13/2, Bhalaik had represented that he could not present the application at the appropriate time because he had sent his men outside and he could not arrive in time because he was not permitted to enter as the counting for another constituency was going on. The witness reiterated that even at that time Bhalaik did not complain that a lot of mistakes had been committed in the counting of votes.41. Alock was a responsible Government Officer. He was not interested in either side. He appears to have given evidence in a straight and forth- right manner. His statement was therefore rightly accepted in preference to those of the petitioner and his Counting Agents.42. Alocks version receives full assurance from the circumstances that even in the belated application Ex. D.W.13/2 no irregularity or illegality, whatever, in the counting was mentioned. All that was stated therein was that the appellant was not satisfied with the counting and therefore wanted a recount. It did not contain any ground on which a recount was sought, and as such, did not comply with the mandatory requirement of Rule 63(2) of the Conduct of Election Rules, 1961, which provides that after the announcement of the result of counting, a candidate or in his absence his election agent or any of his counting agents may apply in writing to the Returning Officer to recount the votes either wholly or in part stating the grounds on which he demands such recount. A whimsical and bald statement of the candidate that he is not satisfied with the counting, is not tantamount to a statement of the grounds within the contemplation of Rule 63(2). The application was thus not a proper application in the eye of law. It was not supplemented even by an antecedent or contemporaneous oral statement of the author or any of his agents with regard to any irregularities in the counting. It was liable to be rejected summarily under Sub-rule (3) of Rule 63, also. That apart, it was presented about half an hour after the Returning Officer had completed and signed the result sheet in Form 20. Sub-rule (6) of the Rule expressly debars the Returning Officer from entertaining an application for recount at such a late stage. The returning Officer had therefore, rightly rejected the application as belated.43. From all that has been said above, it is clear that the allegations of irregularities and illegalities in the counting of votes have been subsequently invented as an after-thought. That apart, these allegations in the petition are more or less vague and general There are lacking in malarial facts The Evidence adduced in regard to this issue also does not make out a prima facie case for a recount.44. Since the pronouncement of this Court in Ram Sewak Yadav v. Hussain Kamal Kidwai and Ors. (1) it is settled law that Sections 100(1)(d)(iii). 101, 102 of the Act and Rule 93 of the Conduct of Election Rules, 1961 implicitly give the Court trying an election petition the power to order a recount or production of the ballot papers and permit their inspection by the parties. Since an order for a recount touches upon the secrecy of the ballot papers, it should not be made lightly or as a matter of course. Although no caste iron rule of universal application can be or has been laid down, yet from a beadroll the decisions of this Court, two broad guide lines are discernible : that the Court would be justified in ordering a recount or permitting inspection of the ballot papers only where (i) all the material facts on which the allegations of irregularity or illegality in counting are founded, are pleaded adequately in the election petition, and (ii) the Court Tribunal trying the petition is prima facie satisfied that the making of such an order is imperatively necessary to decide the dispute and to do complete and effectual justice between the parties see Ram Sewak Yadav v. Hussain Kamal Kidwai (supra) Dr. Jagjit Singh v. Giani Kartar Singh, Jitendra, (2) Bahadur Singh v. Krihna Behari (3), and Smt. Sumitra Devi v. Shri Sheo Shankar Prasad Yadav (4).In the present case neither of the tests above mentioned has been satisfied. The allegations in the petition are not precise. They are in style general and vague floating on auspicious and beliefs of the petitioner, rather than resting on tetra firma of material facts. As was stressed in Ram Sewak Yadavs case (supra), mere allegations that the petitioner suspects or believes that there has been improper reception, refusal or rejection of votes or there have been irregularities in the counting of ballot papers will not be sufficient to support an order of recount and inspection. It is an irony of things that in elections, as in horse racing, sure beliefs, hopes and expectations of the contestants often end up as also runs. The allegations of irregularities in counting appearing in the petition stem from such a sure belief turned unsure We therefore do not find any substance in the contention of the appellant that the High Court was in error in rejecting the appellants request for a recount. | 0 | 5,606 | 3,772 | ### Instruction:
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witness completed the result-sheet and declared the result finally. He further swore that there was no pandamonium in the counting Hall during this interval. Alock clearly stated that no request for recount or for grant of time to make an application for recount was made to him by Shri Beli Ram Bhalaik. He however admitted that one or two persons had raised slogans for about half a minute. They stopped when the witness asked them to do so The witness added that the result of the election was finally declared at 1-30 p.m. and thereafter at 2 05 p.m. When counting of votes of Mahasu Constituency was going on, Bhalaik made the application Ex. D.W. 13/2. The witness then made an order rejecting it. In cross-examination, Alock stated that while presenting the application Ex. D W. 13/2, Bhalaik had represented that he could not present the application at the appropriate time because he had sent his men outside and he could not arrive in time because he was not permitted to enter as the counting for another constituency was going on. The witness reiterated that even at that time Bhalaik did not complain that a lot of mistakes had been committed in the counting of votes. 41. Alock was a responsible Government Officer. He was not interested in either side. He appears to have given evidence in a straight and forth- right manner. His statement was therefore rightly accepted in preference to those of the petitioner and his Counting Agents. 42. Alocks version receives full assurance from the circumstances that even in the belated application Ex. D.W.13/2 no irregularity or illegality, whatever, in the counting was mentioned. All that was stated therein was that the appellant was not satisfied with the counting and therefore wanted a recount. It did not contain any ground on which a recount was sought, and as such, did not comply with the mandatory requirement of Rule 63(2) of the Conduct of Election Rules, 1961, which provides that after the announcement of the result of counting, a candidate or in his absence his election agent or any of his counting agents may apply in writing to the Returning Officer to recount the votes either wholly or in part stating the grounds on which he demands such recount. A whimsical and bald statement of the candidate that he is not satisfied with the counting, is not tantamount to a statement of the grounds within the contemplation of Rule 63(2). The application was thus not a proper application in the eye of law. It was not supplemented even by an antecedent or contemporaneous oral statement of the author or any of his agents with regard to any irregularities in the counting. It was liable to be rejected summarily under Sub-rule (3) of Rule 63, also. That apart, it was presented about half an hour after the Returning Officer had completed and signed the result sheet in Form 20. Sub-rule (6) of the Rule expressly debars the Returning Officer from entertaining an application for recount at such a late stage. The returning Officer had therefore, rightly rejected the application as belated. 43. From all that has been said above, it is clear that the allegations of irregularities and illegalities in the counting of votes have been subsequently invented as an after-thought. That apart, these allegations in the petition are more or less vague and general There are lacking in malarial facts The Evidence adduced in regard to this issue also does not make out a prima facie case for a recount. 44. Since the pronouncement of this Court in Ram Sewak Yadav v. Hussain Kamal Kidwai and Ors. (1) it is settled law that Sections 100(1)(d)(iii). 101, 102 of the Act and Rule 93 of the Conduct of Election Rules, 1961 implicitly give the Court trying an election petition the power to order a recount or production of the ballot papers and permit their inspection by the parties. Since an order for a recount touches upon the secrecy of the ballot papers, it should not be made lightly or as a matter of course. Although no caste iron rule of universal application can be or has been laid down, yet from a beadroll the decisions of this Court, two broad guide lines are discernible : that the Court would be justified in ordering a recount or permitting inspection of the ballot papers only where (i) all the material facts on which the allegations of irregularity or illegality in counting are founded, are pleaded adequately in the election petition, and (ii) the Court Tribunal trying the petition is prima facie satisfied that the making of such an order is imperatively necessary to decide the dispute and to do complete and effectual justice between the parties see Ram Sewak Yadav v. Hussain Kamal Kidwai (supra) Dr. Jagjit Singh v. Giani Kartar Singh, Jitendra, (2) Bahadur Singh v. Krihna Behari (3), and Smt. Sumitra Devi v. Shri Sheo Shankar Prasad Yadav (4). 45. In the present case neither of the tests above mentioned has been satisfied. The allegations in the petition are not precise. They are in style general and vague floating on auspicious and beliefs of the petitioner, rather than resting on tetra firma of material facts. As was stressed in Ram Sewak Yadavs case (supra), mere allegations that the petitioner suspects or believes that there has been improper reception, refusal or rejection of votes or there have been irregularities in the counting of ballot papers will not be sufficient to support an order of recount and inspection. It is an irony of things that in elections, as in horse racing, sure beliefs, hopes and expectations of the contestants often end up as also runs. The allegations of irregularities in counting appearing in the petition stem from such a sure belief turned unsure We therefore do not find any substance in the contention of the appellant that the High Court was in error in rejecting the appellants request for a recount.
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those 5 or 7 minutes, the witness completed the result-sheet and declared the result finally. He further swore that there was no pandamonium in the counting Hall during this interval. Alock clearly stated that no request for recount or for grant of time to make an application for recount was made to him by Shri Beli Ram Bhalaik. He however admitted that one or two persons had raised slogans for about half a minute. They stopped when the witness asked them to do so The witness added that the result of the election was finally declared at 1-30 p.m. and thereafter at 2 05 p.m. When counting of votes of Mahasu Constituency was going on, Bhalaik made the application Ex. D.W. 13/2. The witness then made an order rejecting it. In cross-examination, Alock stated that while presenting the application Ex. D W. 13/2, Bhalaik had represented that he could not present the application at the appropriate time because he had sent his men outside and he could not arrive in time because he was not permitted to enter as the counting for another constituency was going on. The witness reiterated that even at that time Bhalaik did not complain that a lot of mistakes had been committed in the counting of votes.41. Alock was a responsible Government Officer. He was not interested in either side. He appears to have given evidence in a straight and forth- right manner. His statement was therefore rightly accepted in preference to those of the petitioner and his Counting Agents.42. Alocks version receives full assurance from the circumstances that even in the belated application Ex. D.W.13/2 no irregularity or illegality, whatever, in the counting was mentioned. All that was stated therein was that the appellant was not satisfied with the counting and therefore wanted a recount. It did not contain any ground on which a recount was sought, and as such, did not comply with the mandatory requirement of Rule 63(2) of the Conduct of Election Rules, 1961, which provides that after the announcement of the result of counting, a candidate or in his absence his election agent or any of his counting agents may apply in writing to the Returning Officer to recount the votes either wholly or in part stating the grounds on which he demands such recount. A whimsical and bald statement of the candidate that he is not satisfied with the counting, is not tantamount to a statement of the grounds within the contemplation of Rule 63(2). The application was thus not a proper application in the eye of law. It was not supplemented even by an antecedent or contemporaneous oral statement of the author or any of his agents with regard to any irregularities in the counting. It was liable to be rejected summarily under Sub-rule (3) of Rule 63, also. That apart, it was presented about half an hour after the Returning Officer had completed and signed the result sheet in Form 20. Sub-rule (6) of the Rule expressly debars the Returning Officer from entertaining an application for recount at such a late stage. The returning Officer had therefore, rightly rejected the application as belated.43. From all that has been said above, it is clear that the allegations of irregularities and illegalities in the counting of votes have been subsequently invented as an after-thought. That apart, these allegations in the petition are more or less vague and general There are lacking in malarial facts The Evidence adduced in regard to this issue also does not make out a prima facie case for a recount.44. Since the pronouncement of this Court in Ram Sewak Yadav v. Hussain Kamal Kidwai and Ors. (1) it is settled law that Sections 100(1)(d)(iii). 101, 102 of the Act and Rule 93 of the Conduct of Election Rules, 1961 implicitly give the Court trying an election petition the power to order a recount or production of the ballot papers and permit their inspection by the parties. Since an order for a recount touches upon the secrecy of the ballot papers, it should not be made lightly or as a matter of course. Although no caste iron rule of universal application can be or has been laid down, yet from a beadroll the decisions of this Court, two broad guide lines are discernible : that the Court would be justified in ordering a recount or permitting inspection of the ballot papers only where (i) all the material facts on which the allegations of irregularity or illegality in counting are founded, are pleaded adequately in the election petition, and (ii) the Court Tribunal trying the petition is prima facie satisfied that the making of such an order is imperatively necessary to decide the dispute and to do complete and effectual justice between the parties see Ram Sewak Yadav v. Hussain Kamal Kidwai (supra) Dr. Jagjit Singh v. Giani Kartar Singh, Jitendra, (2) Bahadur Singh v. Krihna Behari (3), and Smt. Sumitra Devi v. Shri Sheo Shankar Prasad Yadav (4).In the present case neither of the tests above mentioned has been satisfied. The allegations in the petition are not precise. They are in style general and vague floating on auspicious and beliefs of the petitioner, rather than resting on tetra firma of material facts. As was stressed in Ram Sewak Yadavs case (supra), mere allegations that the petitioner suspects or believes that there has been improper reception, refusal or rejection of votes or there have been irregularities in the counting of ballot papers will not be sufficient to support an order of recount and inspection. It is an irony of things that in elections, as in horse racing, sure beliefs, hopes and expectations of the contestants often end up as also runs. The allegations of irregularities in counting appearing in the petition stem from such a sure belief turned unsure We therefore do not find any substance in the contention of the appellant that the High Court was in error in rejecting the appellants request for a recount.
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SUNNY ABRAHAM Vs. UNION OF INDIA & ANR | have much impact so far as the status of the subject charge memorandum is concerned. 12. The next question we shall address is as to whether there would be any difference in the position of law in this case vis-à-vis the case of B.V. Gopinath (supra). In the latter authority, the charge memorandum without approval of the Disciplinary Authority was held to be non est in a concluded proceeding. The High Court has referred to the variants of the expression non est used in two legal phrases in the judgment under appeal. In the context of our jurisprudence, the term non est conveys the meaning of something treated to be not in existence because of some legal lacuna in the process of creation of the subject-instrument. It goes beyond a remediable irregularity. That is how the Coordinate Bench has construed the impact of not having approval of the Disciplinary Authority in issuing the charge memorandum. In the event a legal instrument is deemed to be not in existence, because of certain fundamental defect in its issuance, subsequent approval cannot revive its existence and ratify acts done in pursuance of such instrument, treating the same to be valid. The fact that initiation of proceeding received approval of the Disciplinary Authority could not lighten the obligation on the part of the employer (in this case the Union of India) in complying with the requirement of sub-clause (3) of Rule 14 of CCS (CCA), 1965. We have quoted the two relevant sub-clauses earlier in this judgment. Sub-clauses (2) and (3) of Rule 14 contemplates independent approval of the Disciplinary Authority at both stages – for initiation of enquiry and also for drawing up or to cause to be drawn up the charge memorandum. In the event the requirement of sub-clause (2) is complied with, not having the approval at the time of issue of charge memorandum under sub- clause (3) would render the charge memorandum fundamentally defective, not capable of being validated retrospectively. What is non-existent in the eye of the law cannot be revived retrospectively. Life cannot be breathed into the stillborn charge memorandum. In our opinion, the approval for initiating disciplinary proceeding and approval to a charge memorandum are two divisible acts, each one requiring independent application of mind on the part of the Disciplinary Authority. If there is any default in the process of application of mind independently at the time of issue of charge memorandum by the Disciplinary Authority, the same would not get cured by the fact that such approval was there at the initial stage. This was the argument on behalf of the authorities in the case of B.V. Gopinath (supra), as would be evident from paragraph 8 of the report which we reproduce below:- 8. Ms Jaising has elaborately explained the entire procedure that is followed in each and every case before the matter is put up before the Finance Minister for seeking approval for initiation of the disciplinary proceedings. According to the learned Additional Solicitor General, the procedure followed ensures that entire material is placed before the Finance Minister before a decision is taken to initiate the departmental proceedings. She submits that approval for initiation of the departmental proceedings would also amount to approval of the charge memo. According to the learned Additional Solicitor General, CAT as well as the High Court had committed a grave error in quashing the departmental proceedings against the respondents, as the procedure for taking approval of the disciplinary authority to initiate penalty proceeding is comprehensive and involved decision making at every level of the hierarchy. 13. But this argument was repelled by the Coordinate Bench, as would be evident from the opinion of the Bench reflected in paragraphs 49 & 50 of the report, which reads:- 49. We are unable to accept the submission of the learned Additional Solicitor General. Initially, when the file comes to the Finance Minister, it is only to take a decision in principle as to whether departmental proceedings ought to be initiated against the officer. Clause (11) deals with reference to CVC for second stage advice. In case of proposal for major penalties, the decision is to be taken by the Finance Minister. Similarly, under Clause (12) reconsideration of CVCs second stage advice is to be taken by the Finance Minister. All further proceedings including approval for referring the case to DoP&T, issuance of show-cause notice in case of disagreement with the enquiry officers report; tentative decision after CVCs second stage advice on imposition of penalty; final decision of penalty and revision/review/memorial have to be taken by the Finance Minister. 50. In our opinion, the Central Administrative Tribunal as well as the High Court has correctly interpreted the provisions of Office Order No. 205 of 2005. Factually also, a perusal of the record would show that the file was put up to the Finance Minister by the Director General of Income Tax (Vigilance) seeking the approval of the Finance Minister for sanctioning prosecution against one officer and for initiation of major penalty proceeding under Rules 3(1)(a) and 3(1)(c) of the Central Civil Services (Conduct) Rules against the officers mentioned in the note which included the respondent herein. Ultimately, it appears that the charge memo was not put up for approval by the Finance Minister. Therefore, it would not be possible to accept the submission of Ms Indira Jaising that the approval granted by the Finance Minister for initiation of departmental proceedings would also amount to approval of the charge memo. 14. We are conscious of the fact that the allegations against the appellant are serious in nature and ought not to be scuttled on purely technical ground. But the Tribunal in the judgment which was set aside by the High Court had reserved liberty to issue a fresh memorandum of charges under Rule 14 of CCS (CCA) Rules, 1965 as per Rules laid down in the matter, if so advised. Thus, the departments power to pursue the matter has been reserved and not foreclosed. | 1[ds]6. The applicable Rules of 1965 in this case are sub-clauses (2) and (3) of Rule 14, which had earlier come up for interpretation in the case of B.V. Gopinath (supra). In the said case, a Coordinate Bench of this Court had observed and opined:-51. Ms. Indira Jaising also submitted that the purpose behind Article 311, Rule 14 and also the Office Order of 2005 is to ensure that only an authority that is not subordinate to the appointing authority takes disciplinary action and that rules of natural justice are complied with. According to the learned Additional Solicitor General, the respondent is not claiming that the rules of natural justice have been violated as the charge memo was not approved by the disciplinary authority. Therefore, according to the Additional Solicitor General, CAT as well as the High Court erred in quashing the charge-sheet as no prejudice has been caused to the respondent.52. In our opinion, the submission of the learned Additional Solicitor General is not factually correct. The primary submission of the respondent was that the charge-sheet not having been issued by the disciplinary authority is without authority of law and, therefore, non est in the eye of the law. This plea of the respondent has been accepted by CAT as also by the High Court. The action has been taken against the respondent in Rule 14(3) of the CCS (CCA) Rules which enjoins the disciplinary authority to draw up or cause to be drawn up the substance of imputation of misconduct or misbehaviour into definite and distinct articles of charges. The term cause to be drawn up does not mean that the definite and distinct articles of charges once drawn up do not have to be approved by the disciplinary authority. The term cause to be drawn up merely refers to a delegation by the disciplinary authority to a subordinate authority to perform the task of drawing up substance of proposed definite and distinct articles of charge-sheet. These proposed articles of charge would only be finalized upon approval by the disciplinary authority. Undoubtedly, this Court in P.V. Srinivasa Sastry v. CAG [(1993) 1 SCC 419] has held that Article 311(1) does not say that even the departmental proceeding must be initiated only by the appointing authority. However, at the same time it is pointed out that: (SCC p. 422, para 4)4. … However, it is open to the Union of India or a State Government to make any rule prescribing that even the proceeding against any delinquent officer shall be initiated by an officer not subordinate to the appointing authority.It is further held that: (SCC p.422, para 4)4. …Any such rule shall not be inconsistent with Article 311 of the Constitution because it will amount to providing an additional safeguard or protection to the holders of a civil post.53. Further, it appears that during the pendency of these proceedings, the appellants have, after 2009, amended the procedure which provides that the charge memo shall be issued only after the approval is granted by the Finance Minister.54. Therefore, it appears that the appeals in these matters were filed and pursued for an authoritative resolution of the legal issues raised herein.55. Although number of collateral issues had been raised by the learned counsel for the appellants as well the respondents, we deem it appropriate not to opine on the same in view of the conclusion that the charge- sheet/charge memo having not been approved by the disciplinary authority was non est in the eye of the law.56. For the reasons stated above, we see no merit in the appeals filed by the Union of India. We may also notice here that CAT had granted liberty to the appellants to take appropriate action in accordance with law. We see no reasons to disturb the liberty so granted. The appeals are, therefore, dismissed.7. The Delhi High Court in the appellants case primarily examined the issue as to whether having regard to the aforesaid Rules, a chargesheet or charge memorandum could be given ex-post facto approval or not. The main distinguishing feature between the case of the appellant and that decided in B.V. Gopinath (supra) is that in the facts of the latter judgment, the subject charge memorandum did not have the ex-post facto approval.8. The respondents argument was accepted by the High Court mainly on two counts. First, there was no ex-post facto approval to the charge memorandum in Gopinaths case. Approval implies ratifying an action and there being no requirement in the concerned Rules for prior approval, ex-post facto approval could always be obtained. On this point, the cases of Ashok Kumar Das and Others vs. University of Burdwan and Others [(2010) 3 SCC 616] and Bajaj Hindustan Limited vs. State of Uttar Pradesh and Others [(2016) 12 SCC 613] are relevant.The cases of Ashok Kumar Das (supra) and Bajaj Hindustan Limited (supra) were referred to for the proposition that the approval includes ratifying an action, which obviously could be given ex-post facto. The following passage from the case of Bajaj Hindustan Limited (supra) was quoted in the judgment under appeal:-7. As is clear from the above, the dictionary meaning of the word approval includes ratifying of the action, ratification obviously can be given ex post facto approval. Another aspect which is highlighted is a difference between approval and permission by the assessing authority that in the case of approval, the action holds until it is disapproved while in other case until permission is obtained. In the instant case, the action was approved by the assessing authority. The Court also pointed out that if in those cases where prior approval is required, expression prior has to be in the particular provision. In the proviso to sub-section (1) of Section 3-A word prior is conspicuous. For all these reasons, it was not a case for levying any penalty upon the appellant. We, therefore, allow this appeal and set aside the impugned judgment [Bajaj Hindustan Ltd. v. State of U.P., Misc. Single No. 3088 of 1999, order dated 30-9-2004 (All)] of the High Court as well as the penalty. No order as to costs.(quoted verbatim from the copy of the judgment as reproduced in the paperbook)9. The following passage from the case of Ashok Kumar Das (supra) has also been quoted in the judgment under appeal:-11. In Blacks Law Dictionary (Fifth Edition), the word approval has been explained thus:Approval. – The act of confirming, ratifying, assenting, sanctioning, or consenting to some act or thing done by another.Hence, approval to an act or decision can also be subsequent to the act or decision.12. In U.P. Avas Evam Vikas Parishad 1955 Supp. (3) SCC 456, this Court made the distinction between permission, prior approval and approval. Para 6 of the judgment is quoted hereinbelow:6. This Court in Life Insurance Corpn. of India v. Escorts Ltd. [(1986) 1 SCC 264] , considering the distinction between special Permission and general permission, previous approval or prior approval in para 63 held that:63….we are conscious that the word prior or previous may be implied if the contextual situation or the object and design of the legislation demands it, we find no such compelling circumstances justifying reading any such implication into Section 29 (1) of the Act.Ordinarily, the difference between approval and permission is that in the first case the action holds good until it is disapproved, while in the other case it does not become effective until permission is obtained. But permission subsequently granted may validate the previous Act, it was stated in Lord Krishna Textiles Mills Ltd. v. Workmen [AIR 1961 SC 860 ], that the Management need not obtain the previous consent before taking any action. The requirement that the Management must obtain approval was distinguished from the requirement that it must obtain permission, of which mention is made in Section 33 (1).XXX XXX XXX15. The words used in Section 21 (xiii) are not with the permission of the State Government nor with the prior approval of the State Government, but with the approval of the State Government. If the words used were with the permission of the State Government, then without the permission of the State Government the Executive council of the University could not determine the terms and conditions of service of non-teaching staff. Similarly, if the words used were with the prior approval of the State Government, the Executive Council of the University could not determine the terms and conditions of service of the non-teaching staff without first obtaining the approval of the State Government. But since the words used are with the approval of the State Government, the Executive Council of the University could determine the terms and conditions of service of the non-teaching staff and obtain the approval of the State Government subsequently and in case the State Government did not grant approval subsequently, any action taken on the basis of the decision of the Executive council of the University would be invalid and not otherwise.(quoted verbatim from the copy of the judgment as reproduced in the paperbook)10. As it has already been pointed out, the High Court sought to distinguish the case of B.V. Gopinath (supra) with the facts of the present case on the ground that in the case of the appellant, the Disciplinary Authority had not granted approval at any stage and in the present case, ex-post facto sanction of the charge memorandum or chargesheet was given when the departmental proceeding was pending. The High Court found such approach to be practical and pragmatic, having regard to the fact that the departmental proceeding had remained pending in the case of the appellant and evidences had been recorded. The High Court thus considered the fact that in the case of B.V. Gopinath (supra), the proceeding stood concluded whereas in the appellants case, it was still running when ex-post facto approval was given. That was the point on which the ratio of B.V. Gopinath (supra) was distinguished by the High Court.11. We do not think that the absence of the expression prior approval in the aforesaid Rule would have any impact so far as the present case is concerned as the same Rule has been construed by this Court in the case of B.V. Gopinath (supra) and it has been held that chargesheet/charge memorandum not having approval of the Disciplinary Authority would be non est in the eye of the law. Same interpretation has been given to a similar Rule, All India Services (Discipline and Appeal) Rules, 1969 by another Coordinate Bench of this Court in the case of State of Tamil Nadu vs. Promod Kumar, IPS and Another [(2018) 17 SCC 677] (authored by one of us, L. Nageswara Rao, J).Now the question arises as to whether concluded proceeding (as in the case of B.V. Gopinath) and pending proceeding against the appellant is capable of giving different interpretations to the said Rule.The High Courts reasoning, referring to the notes on which approval for initiation of proceeding was granted, is that the Disciplinary Authority had taken into consideration the specific charges. The ratio of the judgments in the cases of Ashok Kumar Das (supra) and Bajaj Hindustan Limited (supra), in our opinion, do not apply in the facts of the present case. We hold so because these authorities primarily deal with the question as to whether the legal requirement of granting approval could extend to ex-post facto approval, particularly in a case where the statutory instrument does not specify taking of prior or previous approval. It is a fact that in the Rules with which we are concerned, there is no stipulation of taking prior approval. But since this very Rule has been construed by a Coordinate Bench to the effect that the approval of the Disciplinary Authority should be there before issuing the charge memorandum, the principles of law enunciated in the aforesaid two cases, that is Ashok Kumar Das (supra) and Bajaj Hindustan Limited (supra) would not aid the respondents. The distinction between the prior approval and approval simplicitor does not have much impact so far as the status of the subject charge memorandum is concerned.In the latter authority, the charge memorandum without approval of the Disciplinary Authority was held to be non est in a concluded proceeding. The High Court has referred to the variants of the expression non est used in two legal phrases in the judgment under appeal. In the context of our jurisprudence, the term non est conveys the meaning of something treated to be not in existence because of some legal lacuna in the process of creation of the subject-instrument. It goes beyond a remediable irregularity. That is how the Coordinate Bench has construed the impact of not having approval of the Disciplinary Authority in issuing the charge memorandum. In the event a legal instrument is deemed to be not in existence, because of certain fundamental defect in its issuance, subsequent approval cannot revive its existence and ratify acts done in pursuance of such instrument, treating the same to be valid. The fact that initiation of proceeding received approval of the Disciplinary Authority could not lighten the obligation on the part of the employer (in this case the Union of India) in complying with the requirement of sub-clause (3) of Rule 14 of CCS (CCA), 1965. We have quoted the two relevant sub-clauses earlier in this judgment. Sub-clauses (2) and (3) of Rule 14 contemplates independent approval of the Disciplinary Authority at both stages – for initiation of enquiry and also for drawing up or to cause to be drawn up the charge memorandum. In the event the requirement of sub-clause (2) is complied with, not having the approval at the time of issue of charge memorandum under sub- clause (3) would render the charge memorandum fundamentally defective, not capable of being validated retrospectively. What is non-existent in the eye of the law cannot be revived retrospectively. Life cannot be breathed into the stillborn charge memorandum. In our opinion, the approval for initiating disciplinary proceeding and approval to a charge memorandum are two divisible acts, each one requiring independent application of mind on the part of the Disciplinary Authority. If there is any default in the process of application of mind independently at the time of issue of charge memorandum by the Disciplinary Authority, the same would not get cured by the fact that such approval was there at the initial stage. This was the argument on behalf of the authorities in the case of B.V. Gopinath (supra), as would be evident from paragraph 8 of the report which we reproduce below:-8. Ms Jaising has elaborately explained the entire procedure that is followed in each and every case before the matter is put up before the Finance Minister for seeking approval for initiation of the disciplinary proceedings. According to the learned Additional Solicitor General, the procedure followed ensures that entire material is placed before the Finance Minister before a decision is taken to initiate the departmental proceedings. She submits that approval for initiation of the departmental proceedings would also amount to approval of the charge memo. According to the learned Additional Solicitor General, CAT as well as the High Court had committed a grave error in quashing the departmental proceedings against the respondents, as the procedure for taking approval of the disciplinary authority to initiate penalty proceeding is comprehensive and involved decision making at every level of the hierarchy.13. But this argument was repelled by the Coordinate Bench, as would be evident from the opinion of the Bench reflected in paragraphs 49 & 50 of the report, which reads:-49. We are unable to accept the submission of the learned Additional Solicitor General. Initially, when the file comes to the Finance Minister, it is only to take a decision in principle as to whether departmental proceedings ought to be initiated against the officer. Clause (11) deals with reference to CVC for second stage advice. In case of proposal for major penalties, the decision is to be taken by the Finance Minister. Similarly, under Clause (12) reconsideration of CVCs second stage advice is to be taken by the Finance Minister. All further proceedings including approval for referring the case to DoP&T, issuance of show-cause notice in case of disagreement with the enquiry officers report; tentative decision after CVCs second stage advice on imposition of penalty; final decision of penalty and revision/review/memorial have to be taken by the Finance Minister.50. In our opinion, the Central Administrative Tribunal as well as the High Court has correctly interpreted the provisions of Office Order No. 205 of 2005. Factually also, a perusal of the record would show that the file was put up to the Finance Minister by the Director General of Income Tax (Vigilance) seeking the approval of the Finance Minister for sanctioning prosecution against one officer and for initiation of major penalty proceeding under Rules 3(1)(a) and 3(1)(c) of the Central Civil Services (Conduct) Rules against the officers mentioned in the note which included the respondent herein. Ultimately, it appears that the charge memo was not put up for approval by the Finance Minister. Therefore, it would not be possible to accept the submission of Ms Indira Jaising that the approval granted by the Finance Minister for initiation of departmental proceedings would also amount to approval of the charge memo.14. We are conscious of the fact that the allegations against the appellant are serious in nature and ought not to be scuttled on purely technical ground. But the Tribunal in the judgment which was set aside by the High Court had reserved liberty to issue a fresh memorandum of charges under Rule 14 of CCS (CCA) Rules, 1965 as per Rules laid down in the matter, if so advised. Thus, the departments power to pursue the matter has been reserved and not foreclosed. | 1 | 4,907 | 3,337 | ### Instruction:
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have much impact so far as the status of the subject charge memorandum is concerned. 12. The next question we shall address is as to whether there would be any difference in the position of law in this case vis-à-vis the case of B.V. Gopinath (supra). In the latter authority, the charge memorandum without approval of the Disciplinary Authority was held to be non est in a concluded proceeding. The High Court has referred to the variants of the expression non est used in two legal phrases in the judgment under appeal. In the context of our jurisprudence, the term non est conveys the meaning of something treated to be not in existence because of some legal lacuna in the process of creation of the subject-instrument. It goes beyond a remediable irregularity. That is how the Coordinate Bench has construed the impact of not having approval of the Disciplinary Authority in issuing the charge memorandum. In the event a legal instrument is deemed to be not in existence, because of certain fundamental defect in its issuance, subsequent approval cannot revive its existence and ratify acts done in pursuance of such instrument, treating the same to be valid. The fact that initiation of proceeding received approval of the Disciplinary Authority could not lighten the obligation on the part of the employer (in this case the Union of India) in complying with the requirement of sub-clause (3) of Rule 14 of CCS (CCA), 1965. We have quoted the two relevant sub-clauses earlier in this judgment. Sub-clauses (2) and (3) of Rule 14 contemplates independent approval of the Disciplinary Authority at both stages – for initiation of enquiry and also for drawing up or to cause to be drawn up the charge memorandum. In the event the requirement of sub-clause (2) is complied with, not having the approval at the time of issue of charge memorandum under sub- clause (3) would render the charge memorandum fundamentally defective, not capable of being validated retrospectively. What is non-existent in the eye of the law cannot be revived retrospectively. Life cannot be breathed into the stillborn charge memorandum. In our opinion, the approval for initiating disciplinary proceeding and approval to a charge memorandum are two divisible acts, each one requiring independent application of mind on the part of the Disciplinary Authority. If there is any default in the process of application of mind independently at the time of issue of charge memorandum by the Disciplinary Authority, the same would not get cured by the fact that such approval was there at the initial stage. This was the argument on behalf of the authorities in the case of B.V. Gopinath (supra), as would be evident from paragraph 8 of the report which we reproduce below:- 8. Ms Jaising has elaborately explained the entire procedure that is followed in each and every case before the matter is put up before the Finance Minister for seeking approval for initiation of the disciplinary proceedings. According to the learned Additional Solicitor General, the procedure followed ensures that entire material is placed before the Finance Minister before a decision is taken to initiate the departmental proceedings. She submits that approval for initiation of the departmental proceedings would also amount to approval of the charge memo. According to the learned Additional Solicitor General, CAT as well as the High Court had committed a grave error in quashing the departmental proceedings against the respondents, as the procedure for taking approval of the disciplinary authority to initiate penalty proceeding is comprehensive and involved decision making at every level of the hierarchy. 13. But this argument was repelled by the Coordinate Bench, as would be evident from the opinion of the Bench reflected in paragraphs 49 & 50 of the report, which reads:- 49. We are unable to accept the submission of the learned Additional Solicitor General. Initially, when the file comes to the Finance Minister, it is only to take a decision in principle as to whether departmental proceedings ought to be initiated against the officer. Clause (11) deals with reference to CVC for second stage advice. In case of proposal for major penalties, the decision is to be taken by the Finance Minister. Similarly, under Clause (12) reconsideration of CVCs second stage advice is to be taken by the Finance Minister. All further proceedings including approval for referring the case to DoP&T, issuance of show-cause notice in case of disagreement with the enquiry officers report; tentative decision after CVCs second stage advice on imposition of penalty; final decision of penalty and revision/review/memorial have to be taken by the Finance Minister. 50. In our opinion, the Central Administrative Tribunal as well as the High Court has correctly interpreted the provisions of Office Order No. 205 of 2005. Factually also, a perusal of the record would show that the file was put up to the Finance Minister by the Director General of Income Tax (Vigilance) seeking the approval of the Finance Minister for sanctioning prosecution against one officer and for initiation of major penalty proceeding under Rules 3(1)(a) and 3(1)(c) of the Central Civil Services (Conduct) Rules against the officers mentioned in the note which included the respondent herein. Ultimately, it appears that the charge memo was not put up for approval by the Finance Minister. Therefore, it would not be possible to accept the submission of Ms Indira Jaising that the approval granted by the Finance Minister for initiation of departmental proceedings would also amount to approval of the charge memo. 14. We are conscious of the fact that the allegations against the appellant are serious in nature and ought not to be scuttled on purely technical ground. But the Tribunal in the judgment which was set aside by the High Court had reserved liberty to issue a fresh memorandum of charges under Rule 14 of CCS (CCA) Rules, 1965 as per Rules laid down in the matter, if so advised. Thus, the departments power to pursue the matter has been reserved and not foreclosed.
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the principles of law enunciated in the aforesaid two cases, that is Ashok Kumar Das (supra) and Bajaj Hindustan Limited (supra) would not aid the respondents. The distinction between the prior approval and approval simplicitor does not have much impact so far as the status of the subject charge memorandum is concerned.In the latter authority, the charge memorandum without approval of the Disciplinary Authority was held to be non est in a concluded proceeding. The High Court has referred to the variants of the expression non est used in two legal phrases in the judgment under appeal. In the context of our jurisprudence, the term non est conveys the meaning of something treated to be not in existence because of some legal lacuna in the process of creation of the subject-instrument. It goes beyond a remediable irregularity. That is how the Coordinate Bench has construed the impact of not having approval of the Disciplinary Authority in issuing the charge memorandum. In the event a legal instrument is deemed to be not in existence, because of certain fundamental defect in its issuance, subsequent approval cannot revive its existence and ratify acts done in pursuance of such instrument, treating the same to be valid. The fact that initiation of proceeding received approval of the Disciplinary Authority could not lighten the obligation on the part of the employer (in this case the Union of India) in complying with the requirement of sub-clause (3) of Rule 14 of CCS (CCA), 1965. We have quoted the two relevant sub-clauses earlier in this judgment. Sub-clauses (2) and (3) of Rule 14 contemplates independent approval of the Disciplinary Authority at both stages – for initiation of enquiry and also for drawing up or to cause to be drawn up the charge memorandum. In the event the requirement of sub-clause (2) is complied with, not having the approval at the time of issue of charge memorandum under sub- clause (3) would render the charge memorandum fundamentally defective, not capable of being validated retrospectively. What is non-existent in the eye of the law cannot be revived retrospectively. Life cannot be breathed into the stillborn charge memorandum. In our opinion, the approval for initiating disciplinary proceeding and approval to a charge memorandum are two divisible acts, each one requiring independent application of mind on the part of the Disciplinary Authority. If there is any default in the process of application of mind independently at the time of issue of charge memorandum by the Disciplinary Authority, the same would not get cured by the fact that such approval was there at the initial stage. This was the argument on behalf of the authorities in the case of B.V. Gopinath (supra), as would be evident from paragraph 8 of the report which we reproduce below:-8. Ms Jaising has elaborately explained the entire procedure that is followed in each and every case before the matter is put up before the Finance Minister for seeking approval for initiation of the disciplinary proceedings. According to the learned Additional Solicitor General, the procedure followed ensures that entire material is placed before the Finance Minister before a decision is taken to initiate the departmental proceedings. She submits that approval for initiation of the departmental proceedings would also amount to approval of the charge memo. According to the learned Additional Solicitor General, CAT as well as the High Court had committed a grave error in quashing the departmental proceedings against the respondents, as the procedure for taking approval of the disciplinary authority to initiate penalty proceeding is comprehensive and involved decision making at every level of the hierarchy.13. But this argument was repelled by the Coordinate Bench, as would be evident from the opinion of the Bench reflected in paragraphs 49 & 50 of the report, which reads:-49. We are unable to accept the submission of the learned Additional Solicitor General. Initially, when the file comes to the Finance Minister, it is only to take a decision in principle as to whether departmental proceedings ought to be initiated against the officer. Clause (11) deals with reference to CVC for second stage advice. In case of proposal for major penalties, the decision is to be taken by the Finance Minister. Similarly, under Clause (12) reconsideration of CVCs second stage advice is to be taken by the Finance Minister. All further proceedings including approval for referring the case to DoP&T, issuance of show-cause notice in case of disagreement with the enquiry officers report; tentative decision after CVCs second stage advice on imposition of penalty; final decision of penalty and revision/review/memorial have to be taken by the Finance Minister.50. In our opinion, the Central Administrative Tribunal as well as the High Court has correctly interpreted the provisions of Office Order No. 205 of 2005. Factually also, a perusal of the record would show that the file was put up to the Finance Minister by the Director General of Income Tax (Vigilance) seeking the approval of the Finance Minister for sanctioning prosecution against one officer and for initiation of major penalty proceeding under Rules 3(1)(a) and 3(1)(c) of the Central Civil Services (Conduct) Rules against the officers mentioned in the note which included the respondent herein. Ultimately, it appears that the charge memo was not put up for approval by the Finance Minister. Therefore, it would not be possible to accept the submission of Ms Indira Jaising that the approval granted by the Finance Minister for initiation of departmental proceedings would also amount to approval of the charge memo.14. We are conscious of the fact that the allegations against the appellant are serious in nature and ought not to be scuttled on purely technical ground. But the Tribunal in the judgment which was set aside by the High Court had reserved liberty to issue a fresh memorandum of charges under Rule 14 of CCS (CCA) Rules, 1965 as per Rules laid down in the matter, if so advised. Thus, the departments power to pursue the matter has been reserved and not foreclosed.
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State Of Madras Vs. A.Habibur Rehman Sons (With Connected Appeals) | "outside sale" is defined by the Constitution as Explanation to Article 286 (1) which states what should be deemed to be an inside sale". It is well settled that by Article 286 (1) (as it stood before the Sixth Amendment) sales as a direct result of which goods were delivered in a State for consumption in such State i. e., the sales falling within the Explanation to Article 286 (1) were fictionally to be regarded as inside that State for the purpose of Cl. (1) (a) and so within the taxing power of the State in which such delivery took place and being outside all other States exempt from sales-tax by those other States. As we have already said, the Validation Act has lifted the ban under Article 286 (2) alone but did not remove the ban under Article 286 (1) which continued to apply without being affected by the Validation Act. Therefore, even if a sale fell within the Explanation under S. 2 (h) of the Madras General Sales-tax Act, 1939 it was beyond the competence of the Madras State to tax if the assessee had delivered the goods outside the State for consumption therein. It follows therefore in the present case that the goods sold and delivered outside the State during the period from April, 1955 to September, 1955 were not liable to tax under the Madras General Sales-tax Act, 1939 and the taxing authorities had no jurisdiction to include Rs. 3,66,213-l2-0 in the turnover of the respondent. 8. We proceed to consider the next question raised in this case, viz., that the High Court acted illegally in entertaining and relying upon the affidavits filed by the respondent while exercising its revisional powers under S. 38 of the Madras General Sales-tax Act, 1959 (Madras Act I of 1959).It was contended for the appellant that the High Court could not itself record a finding of fact after taking additional evidence and there was no express Power conferred by S. 38 upon the High Court for taking additional evidence. Section 38 of the Madras General Sales-tax Act, 1959 states : "38 (1) Within ninety days from the date on which a copy of the order under sub-section (3) of Section 36 is served in the manner prescribed, any parson who objects to such order or the Deputy Commissioner may prefer a petition to the High Court on the ground that the Appellate Tribunal has either decided erroneously or failed to decide any question of law: Provided that the High Court may admit a petition preferred after the period of ninety days aforesaid if it is satisfied that the petitioner had sufficient cause for not preferring the petition within the said period. ..... .... .... ...... ...... .... .... ..... (4) (a) If the High Court does not dismiss the Petition summarily, it shall, after giving both the parties to the petition a reasonable opportunity of being heard, determine the question of law raised and either reverse, affirm or amend the order against which the petition was preferred or remit the matter to the Appellate Tribunal, with the opinion of the High Court on the question of law raised or pass such order in relation to the matter as the High Court thinks fit. (b) Where the High Court remits the matter under clause (a) with its opinion on the question of law raised the Appellate Tribunal shall amend the order passed by it in conformity with such opinion. (5) Before passing an order under sub-section (4), the High Court may, if it considers it necessary so to do, remit the petition to the Appellate Tribunal, and direct it to return the petition with its finding on any specific question or issue. ............................................................................................................................ (8) (a) The petitioner or the respondent may apply for review of any order passed by the High Court under clause (a) of sub-section (4) on the basis of the discovery of new and important facts which after the exercise of due diligence were not within his knowledge or could not be produced by him when the order was made. (b) The application for review shall be preferred within such time, and in such manner as may be prescribed, and shall where it is preferred by any party other than the Deputy Commissioner be accompanied by a fee of one hundred rupees. ..................." It was argued for the appellant that under S. 38 the High Court was empowered to interfere with the order of the Appellate Tribunal only if it had either decided a question of law erroneously or had failed to decide any question of law. It was said that in any case the High Court should have remitted the matter to the Appellate Tribunal if it considered it necessary for the proper disposal of the case to take in evidence any additional facts under S. 38 (5) of the Act before passing an order under sub-s. (4) remitting the matter to the Appellate Tribunal on any specific question or issue. In our opinion there is considerable force in the argument put forward on behalf of the appellant. But we do not wish to express any concluded opinion on this point in the present case. It appears that the appellant did not raise any objection before the High Court when the affidavits were taken into evidence. Having preferred no objection before the High Court it is not now open to the appellant to say that the High Court acted illegally in taking those affidavits in evidence. It was submitted for the respondent that the transactions themselves took place in 1955, nearly 12 years back and ordinarily accounts of dealings would not be retained beyond five years. Counsel for the respondent referred in this connection to a rule framed under the Madras General Sales-tax Act. In these circumstances it was hardly worth-while for the High Court to remand the case for a fresh investigation. We therefore reject the argument of the appellant on this aspect of the case. | 0[ds]In our opinion the argument put forward on behalf of the appellant is not warranted. The decision of this Court in Ashok Leylands case, 1962 (1) SCR 607 : (AIR 1961 SC 1433 ) has no bearing on the question presented for determination in this case. The reason is that in that case the deliveries of motor vehicles were inside the Madras State and the inter-State sales in question were not "Explanation sales" falling within Article 286 (1) (a). It is a well settled proposition that the operative provisions of the several parts of Article 288, namely Clause (1) (a) Clause (1) (b), C1. (2) and Clause (3), are intended to deal with different topics and one cannot be projected or read into another and therefore the Explanation in Clause (1) (a) cannot legitemately be extended to Clause (2) either as an exception or as a proviso thereto or read as curtailing or limiting the ambit of Cl. (2).In other words, the legislative authority of the States to impose taxes on sales end purchases was restricted by four limitations- in respect of sales or purchases outside the State, in respect of sales or purchases in the course of imports into or exports out of India, in respect of sales or purchases which take place in the course of inter-State trade or commerce and in respect of sales and purchases of goods declared by Parliament to be essential for the life of the community. These limitations overlap to some extent, but the legislative power of the State to tax sale or purchase transactions may be exercised only if it is not hit by any of the limitations.The restrictions imposed by Article 286 are cumulative. It follows therefore that even if the ban under Article 286 (2) is lifted by Parliament by the enactment of the Validation Act, the Madras State cannot still tax inter-State sales or purchases which take place outside its territorial limits because of the ban under Article 286 (l) (a) of the Constitution. What is an "outside sale" is defined by the Constitution by the explanation to Article 286 (1) which states what should be deemed to be an inside sale. As provided by the Explanation to Article 286 (1), a sale or purchase shall be deemed to have taken place in the State in which the goods have actually been delivered as a direct result of the sale notwithstanding the fact that under the general law relating to sale of goods the property in the goods has, by reason of such sale or purchase, passed to another State. The result therefore is that if the terms of the Explanation are satisfied such sales are by a fiction deemed to be inside the State of delivery-cum-consumption and therefore outside all other States. In such cases therefore only the State inside which the sale is deemed to take place by virtue of the Explanation is exempt from the ban imposed by Article 286 (1) (a); All other States would be subject to that ban in respect of such sales7. The legal position therefore is that the Validation Act merely lifted the ban under Article 286 (2) of the Constitution on the States power to legislate but the ban imposed by Article 286 (1) (a) of the Constitution was still effective and could not be removed by legislation of Parliament.In other words, even if the ban under Article 286 (2) is removed by the Validation Act, no State can tax an inter-State sale or purchase which takes place outside its territorial limits. What is an "outside sale" is defined by the Constitution as Explanation to Article 286 (1) which states what should be deemed to be an inside sale". It is well settled that by Article 286 (1) (as it stood before the Sixth Amendment) sales as a direct result of which goods were delivered in a State for consumption in such State i. e., the sales falling within the Explanation to Article 286 (1) were fictionally to be regarded as inside that State for the purpose of Cl. (1) (a) and so within the taxing power of the State in which such delivery took place and being outside all other States exempt from sales-tax by those other States. As we have already said, the Validation Act has lifted the ban under Article 286 (2) alone but did not remove the ban under Article 286 (1) which continued to apply without being affected by the Validation Act. Therefore, even if a sale fell within the Explanation under S. 2 (h) of the Madras General Sales-tax Act, 1939 it was beyond the competence of the Madras State to tax if the assessee had delivered the goods outside the State for consumption therein. It follows therefore in the present case that the goods sold and delivered outside the State during the period from April, 1955 to September, 1955 were not liable to tax under the Madras General Sales-tax Act, 1939 and the taxing authorities had no jurisdiction to include Rs. 3,66,213-l2-0 in the turnover of the respondentIn our opinion there is considerable force in the argument put forward on behalf of the appellant. But we do not wish to express any concluded opinion on this point in the present case. It appears that the appellant did not raise any objection before the High Court when the affidavits were taken into evidence. Having preferred no objection before the High Court it is not now open to the appellant to say that the High Court acted illegally in taking those affidavits in evidence. It was submitted for the respondent that the transactions themselves took place in 1955, nearly 12 years back and ordinarily accounts of dealings would not be retained beyond five years. Counsel for the respondent referred in this connection to a rule framed under the Madras General Sales-tax Act. In these circumstances it was hardly worth-while for the High Court to remand the case for a fresh investigation. We therefore reject the argument of the appellant on this aspect of the caseThis question has been the subject-matter of consideration in Civil Appeal No. 495 of 1966, and for the reasons given in that case, we hold that the Madras State had no authority to levy sales-tax on such transactions of sale and the High Court was right in holding that the constitutional bar under Article 286 (1) (a) was not lifted by the Validation ActIt, however, appears that the appellant did not object to the production of the affidavit in the High Court. It must be taken that the objection was waived and it is not now open to the appellant to argue that the High Court had no power to take the affidavit into evidence. We accordingly reject the argument of the appellant on this pointThe High Court has, however, taken the view that the transactions took place in 1955-56 and ordinarily accounts of dealings would not be retained by the assessee beyond five years. The High Court has observed that apart from this the transactions were very large in number, about 4,000 and odd and most of them were for a comparatively small value. Some of the invoices referred in the assessment order show that they were for small amounts in regard to articles like paint, aluminium tar and other articles. In these circumstances the High Court came to the conclusion that the goods were delivered to places outside the Madras State for the purpose of consumption in the delivery States.The High Court added that it was hardly worthwhile in these circumstances to direct a remand of the case to the Appellate Tribunal for a fresh enquiry. It is manifest that the finding of the High Court on this point is a finding on a question of fact and as there is proper material to support the finding of the High Court it is not possible to accept the contention of the appellant that the finding is in any way defective in law. 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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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"outside sale" is defined by the Constitution as Explanation to Article 286 (1) which states what should be deemed to be an inside sale". It is well settled that by Article 286 (1) (as it stood before the Sixth Amendment) sales as a direct result of which goods were delivered in a State for consumption in such State i. e., the sales falling within the Explanation to Article 286 (1) were fictionally to be regarded as inside that State for the purpose of Cl. (1) (a) and so within the taxing power of the State in which such delivery took place and being outside all other States exempt from sales-tax by those other States. As we have already said, the Validation Act has lifted the ban under Article 286 (2) alone but did not remove the ban under Article 286 (1) which continued to apply without being affected by the Validation Act. Therefore, even if a sale fell within the Explanation under S. 2 (h) of the Madras General Sales-tax Act, 1939 it was beyond the competence of the Madras State to tax if the assessee had delivered the goods outside the State for consumption therein. It follows therefore in the present case that the goods sold and delivered outside the State during the period from April, 1955 to September, 1955 were not liable to tax under the Madras General Sales-tax Act, 1939 and the taxing authorities had no jurisdiction to include Rs. 3,66,213-l2-0 in the turnover of the respondent. 8. We proceed to consider the next question raised in this case, viz., that the High Court acted illegally in entertaining and relying upon the affidavits filed by the respondent while exercising its revisional powers under S. 38 of the Madras General Sales-tax Act, 1959 (Madras Act I of 1959).It was contended for the appellant that the High Court could not itself record a finding of fact after taking additional evidence and there was no express Power conferred by S. 38 upon the High Court for taking additional evidence. Section 38 of the Madras General Sales-tax Act, 1959 states : "38 (1) Within ninety days from the date on which a copy of the order under sub-section (3) of Section 36 is served in the manner prescribed, any parson who objects to such order or the Deputy Commissioner may prefer a petition to the High Court on the ground that the Appellate Tribunal has either decided erroneously or failed to decide any question of law: Provided that the High Court may admit a petition preferred after the period of ninety days aforesaid if it is satisfied that the petitioner had sufficient cause for not preferring the petition within the said period. ..... .... .... ...... ...... .... .... ..... (4) (a) If the High Court does not dismiss the Petition summarily, it shall, after giving both the parties to the petition a reasonable opportunity of being heard, determine the question of law raised and either reverse, affirm or amend the order against which the petition was preferred or remit the matter to the Appellate Tribunal, with the opinion of the High Court on the question of law raised or pass such order in relation to the matter as the High Court thinks fit. (b) Where the High Court remits the matter under clause (a) with its opinion on the question of law raised the Appellate Tribunal shall amend the order passed by it in conformity with such opinion. (5) Before passing an order under sub-section (4), the High Court may, if it considers it necessary so to do, remit the petition to the Appellate Tribunal, and direct it to return the petition with its finding on any specific question or issue. ............................................................................................................................ (8) (a) The petitioner or the respondent may apply for review of any order passed by the High Court under clause (a) of sub-section (4) on the basis of the discovery of new and important facts which after the exercise of due diligence were not within his knowledge or could not be produced by him when the order was made. (b) The application for review shall be preferred within such time, and in such manner as may be prescribed, and shall where it is preferred by any party other than the Deputy Commissioner be accompanied by a fee of one hundred rupees. ..................." It was argued for the appellant that under S. 38 the High Court was empowered to interfere with the order of the Appellate Tribunal only if it had either decided a question of law erroneously or had failed to decide any question of law. It was said that in any case the High Court should have remitted the matter to the Appellate Tribunal if it considered it necessary for the proper disposal of the case to take in evidence any additional facts under S. 38 (5) of the Act before passing an order under sub-s. (4) remitting the matter to the Appellate Tribunal on any specific question or issue. In our opinion there is considerable force in the argument put forward on behalf of the appellant. But we do not wish to express any concluded opinion on this point in the present case. It appears that the appellant did not raise any objection before the High Court when the affidavits were taken into evidence. Having preferred no objection before the High Court it is not now open to the appellant to say that the High Court acted illegally in taking those affidavits in evidence. It was submitted for the respondent that the transactions themselves took place in 1955, nearly 12 years back and ordinarily accounts of dealings would not be retained beyond five years. Counsel for the respondent referred in this connection to a rule framed under the Madras General Sales-tax Act. In these circumstances it was hardly worth-while for the High Court to remand the case for a fresh investigation. We therefore reject the argument of the appellant on this aspect of the case.
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Constitution by the explanation to Article 286 (1) which states what should be deemed to be an inside sale. As provided by the Explanation to Article 286 (1), a sale or purchase shall be deemed to have taken place in the State in which the goods have actually been delivered as a direct result of the sale notwithstanding the fact that under the general law relating to sale of goods the property in the goods has, by reason of such sale or purchase, passed to another State. The result therefore is that if the terms of the Explanation are satisfied such sales are by a fiction deemed to be inside the State of delivery-cum-consumption and therefore outside all other States. In such cases therefore only the State inside which the sale is deemed to take place by virtue of the Explanation is exempt from the ban imposed by Article 286 (1) (a); All other States would be subject to that ban in respect of such sales7. The legal position therefore is that the Validation Act merely lifted the ban under Article 286 (2) of the Constitution on the States power to legislate but the ban imposed by Article 286 (1) (a) of the Constitution was still effective and could not be removed by legislation of Parliament.In other words, even if the ban under Article 286 (2) is removed by the Validation Act, no State can tax an inter-State sale or purchase which takes place outside its territorial limits. What is an "outside sale" is defined by the Constitution as Explanation to Article 286 (1) which states what should be deemed to be an inside sale". It is well settled that by Article 286 (1) (as it stood before the Sixth Amendment) sales as a direct result of which goods were delivered in a State for consumption in such State i. e., the sales falling within the Explanation to Article 286 (1) were fictionally to be regarded as inside that State for the purpose of Cl. (1) (a) and so within the taxing power of the State in which such delivery took place and being outside all other States exempt from sales-tax by those other States. As we have already said, the Validation Act has lifted the ban under Article 286 (2) alone but did not remove the ban under Article 286 (1) which continued to apply without being affected by the Validation Act. Therefore, even if a sale fell within the Explanation under S. 2 (h) of the Madras General Sales-tax Act, 1939 it was beyond the competence of the Madras State to tax if the assessee had delivered the goods outside the State for consumption therein. It follows therefore in the present case that the goods sold and delivered outside the State during the period from April, 1955 to September, 1955 were not liable to tax under the Madras General Sales-tax Act, 1939 and the taxing authorities had no jurisdiction to include Rs. 3,66,213-l2-0 in the turnover of the respondentIn our opinion there is considerable force in the argument put forward on behalf of the appellant. But we do not wish to express any concluded opinion on this point in the present case. It appears that the appellant did not raise any objection before the High Court when the affidavits were taken into evidence. Having preferred no objection before the High Court it is not now open to the appellant to say that the High Court acted illegally in taking those affidavits in evidence. It was submitted for the respondent that the transactions themselves took place in 1955, nearly 12 years back and ordinarily accounts of dealings would not be retained beyond five years. Counsel for the respondent referred in this connection to a rule framed under the Madras General Sales-tax Act. In these circumstances it was hardly worth-while for the High Court to remand the case for a fresh investigation. We therefore reject the argument of the appellant on this aspect of the caseThis question has been the subject-matter of consideration in Civil Appeal No. 495 of 1966, and for the reasons given in that case, we hold that the Madras State had no authority to levy sales-tax on such transactions of sale and the High Court was right in holding that the constitutional bar under Article 286 (1) (a) was not lifted by the Validation ActIt, however, appears that the appellant did not object to the production of the affidavit in the High Court. It must be taken that the objection was waived and it is not now open to the appellant to argue that the High Court had no power to take the affidavit into evidence. We accordingly reject the argument of the appellant on this pointThe High Court has, however, taken the view that the transactions took place in 1955-56 and ordinarily accounts of dealings would not be retained by the assessee beyond five years. The High Court has observed that apart from this the transactions were very large in number, about 4,000 and odd and most of them were for a comparatively small value. Some of the invoices referred in the assessment order show that they were for small amounts in regard to articles like paint, aluminium tar and other articles. In these circumstances the High Court came to the conclusion that the goods were delivered to places outside the Madras State for the purpose of consumption in the delivery States.The High Court added that it was hardly worthwhile in these circumstances to direct a remand of the case to the Appellate Tribunal for a fresh enquiry. It is manifest that the finding of the High Court on this point is a finding on a question of fact and as there is proper material to support the finding of the High Court it is not possible to accept the contention of the appellant that the finding is in any way defective in law. We accordingly reject the argument of the appellant on this point.
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HEMAREDDI (D) THROUGH LRS Vs. RAMACHANDRA YALLAPPA HOSMANI | fact as to whether the judgment/decree passed in the proceedings vis-a-vis the remaining parties would suffer the vice of contradictory or inconsistent decrees. For that reason, a decree can be said to be contradictory or inconsistent with another decree only when the two decrees are incapable of enforcement or would be mutually self-destructive and that the enforcement of one would negate or render impossible the enforcement of the other. (Emphasis Supplied) 17. Is this a case when the appellant and his brother were having distinct and independent claims and rights and for the sake of convenience they had joined as plaintiffs originally in the suit and as appellants subsequently in the appeal? Is this a case where there is joint decree or is it is a case where the decree is severable? Is it therefore a severable decree or a combination of two decrees? Whether the decree if passed by the appellate court in favour of the appellant would result in a decree which is contradictory to the decree passed by the trial Court. 18. In this case, undoubtedly as we have noted the appellant and his late brother sued as plaintiffs for a declaration that the first defendant was not the adopted son and he has no rights. They also sought a prohibitory injunction. The suit stood dismissed by trial court. Let us take the converse position. Assuming that the suit was decreed by the trial court and appeal was carried by the defendants, and pending the appeal by the defendants, if the late brother of the appellant had died and if the defendants had not impleaded the legal representatives of late brother and the appeal abated as against him, would it then not open to the appellant as respondent in the appeal to contend that if the appeal was to be allowed to proceed in the absence of the legal representatives of his late brother and succeed, there would be an inconsistent decree. On the one hand, there will be a decree by the trial Court declaring that the first defendant was not the adopted son and had no interest in the property qua the late brother of the appellant. On the other hand, the appellate court could be invited to pass a decree which should be to the effect that the first defendant was found to be the adopted son and had right and interest over the property and a declaration to that effect would have to be granted. Would not the appellate court then have to necessarily hold though the decree in favour of the deceased brother of the appellant has become final, and under it, a declaration is granted that the defendant No.1 is not the adopted son and he has no right to claim the property and there is an injunction against him that he is the adopted son opposed to the decree which has been passed by the trial court which has attained finality. We would think that the appellate court would indeed have to refuse to proceed with the appeal on the basis that allowing the appeal by the defendants would lead to an appellate decree which is inconsistent with the decree which has become final as against the deceased brother of the appellant. 19. We would think that the situation cannot be any other different, when we contemplate the converse of the aforesaid scenario which happens to be the factual matrix obtaining in this case. The right which was set up by the appellant alongwith his late brother was joint. They were members of the joint Hindu family consisting of their late father and which consisted of late Govindareddi, their father Shriram Reddy and Basavareddi, who was none other than the husband of the second defendant. This is not a case where their claims were distinct claims. This is not the situation which was present in the case dealt with by the Constitution Bench under the land acquisition case. Therein, several persons came together and sought relief in one proceeding. We would think that this is not the position in this case. 20. It may be true that if a separate suit had been filed by the late brother and it had abated on his death, there will be no decree on merits and the suit would have abated. No doubt, it could be argued that even though the appellant and his late brother set up the case of joint right, it would only mean that they are co-owners of the property, and therefore, they had independent rights as co-owners which could be canvassed in two different proceedings, and therefore, the decree of the trial court dismissing the suit be treated as two different decrees - one decree against the appellant and the other against his late brother. Even then, the decree, which the High court would be invited to pass, would be contradictory and inconsistent with the decree as against late brother of the appellant which may not be permissible in law. 21. The decree, which the appellant, if successful in the appeal, would obtain, would be absolutely contrary to the decree which has also attained finality between his late brother and the defendants. They are mutually irreconcilable, totally inconsistent. Laying one side by side, the only impression would be that one is in the teeth of the other. In one, the suit is dismissed whereas in the other, the suit would have been decreed. 22. The argument that in view of the order passed on 10/09/2001 by which despite the death of late brother of the appellant, permission to prosecute the appeal was granted by the court there would arise an estoppel against the order being passed holding that the appeal has abated as a whole, cannot be accepted. The impact of death of the late brother of the appellant qua the proceeding is one arising out of the incompatibility of a decree which has become final with the decree which the appellant invites the appellate court to pass. | 0[ds]7. Death of a party during the currency of a litigation indeed has given rise to vexed questions. Procedure is the hand maiden of justice, the technicalities of law should not be allowed to prevail over the demands of justice and obstacles in the path of the Court considering a case on merit should not ordinarily become insuperable. On the other hand, if the so called procedural requirement is drawn from a wholesome principle of substantive law to advance the cause of justice, the same may not be overlooked.8. There can be no doubt that Order XXII Rule 3 is applicable also to appeals filed under Order 41. Order XXII Rule 3 declares that where one of two or more plaintiffs dies and the right to sue does not survive to the surviving plaintiff or plaintiffs alone inter alia the Court on an application can substitute the legal representatives of the deceased plaintiff and proceed with the suit. Sub-rule (2) provides that if it is not so done, the suit shall abate as far as the deceased plaintiff is concerned. Order XXII Rule (3) therefore is applicable when either a suit or an appeal is filed by more than one plaintiffs or appellants as the case may be. This is no doubt apart from it applying when there is a sole plaintiff or sole appellant. In such a situation, on the death of one of the plaintiffs or appellants and the right to sue does not survive to the remaining plaintiff/plaintiffs or appellant/appellants alone, then the LRs of the deceased party can come on record. Should he not do so, ordinarily, the proceeding will abate as far as the deceased party is concernedIt is quite clear that there were legal representatives available for the second appellant. This is not a case where the estate of the second appellant would pass to the appellant herein by survivorship or otherwise. Therefore, the first requirement is fulfilled for allowing Order XXII Rule 3 to operate. Admittedly, steps were not taken for substitution in regard to the second appellant. The appeal, therefore, abated qua him as is declared by Order XXII Rule 3(2). Though this is all that the Order XXII Rule 2 declares, the principle has evolved that in certain kinds of litigation, the consequences of abatement qua a party is not limited to the deceased party alone but it affects all the other parties and the litigation itself. In other words, a suit or an appeal as the case may be, would suffer an untimely demise by the proceeding abating as a wholeThe allegation in the plaint as we have noticed is that the suit properties are joint properties and the second defendant had no exclusive right to the property. She had created a false document described as an adoption deed by which she has purported to adopt the first defendant. The first defendant cannot claim any right to the suit property as an adopted son. On the alleged date of adoption, the husband of the second defendant was alive. He had died on 16.04.1987, in jointness with the plaintiffs. The plaintiffs were the joint owners of the suit land and also other property. When Basavareddi, the husband of the second defendant was alive, she has no right to take the first defendant on adoption. Defendant No.1 cannot claim any title interest or right over the suit property11. In this case having noted pleadings and the relief sought we can proceed on the basis that it was the appellants case that the plaintiffs property was the joint family property belonging to the appellant and his deceased brother. The trial Court dismissed the suit. The result is that the adoption of the 1 st defendant by the 2 nd defendant which was challenged by the appellant and his late brother was upheld. The said judgment was called in question in a Single Appeal by the appellant and his late brother. It is while the appeal was so pending that the late brother passed away. The appeal having abated in regard to the late brother, the decree of the trial Court has become final qua the deceased brother of the appellant. The effect of the same is that the adoption is found legal. The result of the appellant being allowed to proceed further and succeed in the appeal would be the passing of a decree by the High Court. The said decree would be to the effect that the adoption is invalid. The suit which was jointly filed by the appellant and his late brother would have to be decreed whereas the suit filed by the appellant and his late brother stands dismissed by the trial Court. Both the decrees cannot stand together. There would be irreconcilable conflict. The defendants are common. They would be faced with two decrees regarding the same subject matter which are irrevocably conflictingIn both these cases it must be noticed that it is a condition precedent for the provisions to apply that the right to sue does not survive to the remaining plaintiffs/ appellants (Order XXII Rule 3) or the remaining one or two appellants and right to sue does not survive against the defendant or defendants in the suit or respondents in the appeal alone or the sole defendant or surviving defendants dies and the right to sue survives. It must be noted that Order XXII Rule 2 deals with a situation where there are more than one plaintiffs and defendants and any of them dies and the right to sue survives to the surviving plaintiff or plaintiffs alone or against the surviving defendant or defendants alone, the suit or the appeal shall be proceeded against at the instance of the surviving plaintiff or plaintiffs/appellant or appellants or against surviving defendant or defendants in the suit/respondents in the appeal17. Is this a case when the appellant and his brother were having distinct and independent claims and rights and for the sake of convenience they had joined as plaintiffs originally in the suit and as appellants subsequently in the appeal? Is this a case where there is joint decree or is it is a case where the decree is severable? Is it therefore a severable decree or a combination of two decrees? Whether the decree if passed by the appellate court in favour of the appellant would result in a decree which is contradictory to the decree passed by the trial Court18. In this case, undoubtedly as we have noted the appellant and his late brother sued as plaintiffs for a declaration that the first defendant was not the adopted son and he has no rights. They also sought a prohibitory injunction. The suit stood dismissed by trial court. Let us take the converse position. Assuming that the suit was decreed by the trial court and appeal was carried by the defendants, and pending the appeal by the defendants, if the late brother of the appellant had died and if the defendants had not impleaded the legal representatives of late brother and the appeal abated as against him, would it then not open to the appellant as respondent in the appeal to contend that if the appeal was to be allowed to proceed in the absence of the legal representatives of his late brother and succeed, there would be an inconsistent decree. On the one hand, there will be a decree by the trial Court declaring that the first defendant was not the adopted son and had no interest in the property qua the late brother of the appellant. On the other hand, the appellate court could be invited to pass a decree which should be to the effect that the first defendant was found to be the adopted son and had right and interest over the property and a declaration to that effect would have to be granted. Would not the appellate court then have to necessarily hold though the decree in favour of the deceased brother of the appellant has become final, and under it, a declaration is granted that the defendant No.1 is not the adopted son and he has no right to claim the property and there is an injunction against him that he is the adopted son opposed to the decree which has been passed by the trial court which has attained finality. We would think that the appellate court would indeed have to refuse to proceed with the appeal on the basis that allowing the appeal by the defendants would lead to an appellate decree which is inconsistent with the decree which has become final as against the deceased brother of the appellant19. We would think that the situation cannot be any other different, when we contemplate the converse of the aforesaid scenario which happens to be the factual matrix obtaining in this case. The right which was set up by the appellant alongwith his late brother was joint. They were members of the joint Hindu family consisting of their late father and which consisted of late Govindareddi, their father Shriram Reddy and Basavareddi, who was none other than the husband of the second defendant. This is not a case where their claims were distinct claims. This is not the situation which was present in the case dealt with by the Constitution Bench under the land acquisition case. Therein, several persons came together and sought relief in one proceeding. We would think that this is not the position in this case20. It may be true that if a separate suit had been filed by the late brother and it had abated on his death, there will be no decree on merits and the suit would have abated. No doubt, it could be argued that even though the appellant and his late brother set up the case of joint right, it would only mean that they are co-owners of the property, and therefore, they had independent rights as co-owners which could be canvassed in two different proceedings, and therefore, the decree of the trial court dismissing the suit be treated as two different decrees - one decree against the appellant and the other against his late brother. Even then, the decree, which the High court would be invited to pass, would be contradictory and inconsistent with the decree as against late brother of the appellant which may not be permissible in law21. The decree, which the appellant, if successful in the appeal, would obtain, would be absolutely contrary to the decree which has also attained finality between his late brother and the defendants. They are mutually irreconcilable, totally inconsistent. Laying one side by side, the only impression would be that one is in the teeth of the other. In one, the suit is dismissed whereas in the other, the suit would have been decreed22. The argument that in view of the order passed on 10/09/2001 by which despite the death of late brother of the appellant, permission to prosecute the appeal was granted by the court there would arise an estoppel against the order being passed holding that the appeal has abated as a whole, cannot be accepted. The impact of death of the late brother of the appellant qua the proceeding is one arising out of the incompatibility of a decree which has become final with the decree which the appellant invites the appellate court to pass. | 0 | 8,374 | 2,035 | ### Instruction:
Judge the probable resolution of the case (approval (1) or disapproval (0)), and elaborate on this forecast by extracting and interpreting significant sentences from the proceeding.
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fact as to whether the judgment/decree passed in the proceedings vis-a-vis the remaining parties would suffer the vice of contradictory or inconsistent decrees. For that reason, a decree can be said to be contradictory or inconsistent with another decree only when the two decrees are incapable of enforcement or would be mutually self-destructive and that the enforcement of one would negate or render impossible the enforcement of the other. (Emphasis Supplied) 17. Is this a case when the appellant and his brother were having distinct and independent claims and rights and for the sake of convenience they had joined as plaintiffs originally in the suit and as appellants subsequently in the appeal? Is this a case where there is joint decree or is it is a case where the decree is severable? Is it therefore a severable decree or a combination of two decrees? Whether the decree if passed by the appellate court in favour of the appellant would result in a decree which is contradictory to the decree passed by the trial Court. 18. In this case, undoubtedly as we have noted the appellant and his late brother sued as plaintiffs for a declaration that the first defendant was not the adopted son and he has no rights. They also sought a prohibitory injunction. The suit stood dismissed by trial court. Let us take the converse position. Assuming that the suit was decreed by the trial court and appeal was carried by the defendants, and pending the appeal by the defendants, if the late brother of the appellant had died and if the defendants had not impleaded the legal representatives of late brother and the appeal abated as against him, would it then not open to the appellant as respondent in the appeal to contend that if the appeal was to be allowed to proceed in the absence of the legal representatives of his late brother and succeed, there would be an inconsistent decree. On the one hand, there will be a decree by the trial Court declaring that the first defendant was not the adopted son and had no interest in the property qua the late brother of the appellant. On the other hand, the appellate court could be invited to pass a decree which should be to the effect that the first defendant was found to be the adopted son and had right and interest over the property and a declaration to that effect would have to be granted. Would not the appellate court then have to necessarily hold though the decree in favour of the deceased brother of the appellant has become final, and under it, a declaration is granted that the defendant No.1 is not the adopted son and he has no right to claim the property and there is an injunction against him that he is the adopted son opposed to the decree which has been passed by the trial court which has attained finality. We would think that the appellate court would indeed have to refuse to proceed with the appeal on the basis that allowing the appeal by the defendants would lead to an appellate decree which is inconsistent with the decree which has become final as against the deceased brother of the appellant. 19. We would think that the situation cannot be any other different, when we contemplate the converse of the aforesaid scenario which happens to be the factual matrix obtaining in this case. The right which was set up by the appellant alongwith his late brother was joint. They were members of the joint Hindu family consisting of their late father and which consisted of late Govindareddi, their father Shriram Reddy and Basavareddi, who was none other than the husband of the second defendant. This is not a case where their claims were distinct claims. This is not the situation which was present in the case dealt with by the Constitution Bench under the land acquisition case. Therein, several persons came together and sought relief in one proceeding. We would think that this is not the position in this case. 20. It may be true that if a separate suit had been filed by the late brother and it had abated on his death, there will be no decree on merits and the suit would have abated. No doubt, it could be argued that even though the appellant and his late brother set up the case of joint right, it would only mean that they are co-owners of the property, and therefore, they had independent rights as co-owners which could be canvassed in two different proceedings, and therefore, the decree of the trial court dismissing the suit be treated as two different decrees - one decree against the appellant and the other against his late brother. Even then, the decree, which the High court would be invited to pass, would be contradictory and inconsistent with the decree as against late brother of the appellant which may not be permissible in law. 21. The decree, which the appellant, if successful in the appeal, would obtain, would be absolutely contrary to the decree which has also attained finality between his late brother and the defendants. They are mutually irreconcilable, totally inconsistent. Laying one side by side, the only impression would be that one is in the teeth of the other. In one, the suit is dismissed whereas in the other, the suit would have been decreed. 22. The argument that in view of the order passed on 10/09/2001 by which despite the death of late brother of the appellant, permission to prosecute the appeal was granted by the court there would arise an estoppel against the order being passed holding that the appeal has abated as a whole, cannot be accepted. The impact of death of the late brother of the appellant qua the proceeding is one arising out of the incompatibility of a decree which has become final with the decree which the appellant invites the appellate court to pass.
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noted that Order XXII Rule 2 deals with a situation where there are more than one plaintiffs and defendants and any of them dies and the right to sue survives to the surviving plaintiff or plaintiffs alone or against the surviving defendant or defendants alone, the suit or the appeal shall be proceeded against at the instance of the surviving plaintiff or plaintiffs/appellant or appellants or against surviving defendant or defendants in the suit/respondents in the appeal17. Is this a case when the appellant and his brother were having distinct and independent claims and rights and for the sake of convenience they had joined as plaintiffs originally in the suit and as appellants subsequently in the appeal? Is this a case where there is joint decree or is it is a case where the decree is severable? Is it therefore a severable decree or a combination of two decrees? Whether the decree if passed by the appellate court in favour of the appellant would result in a decree which is contradictory to the decree passed by the trial Court18. In this case, undoubtedly as we have noted the appellant and his late brother sued as plaintiffs for a declaration that the first defendant was not the adopted son and he has no rights. They also sought a prohibitory injunction. The suit stood dismissed by trial court. Let us take the converse position. Assuming that the suit was decreed by the trial court and appeal was carried by the defendants, and pending the appeal by the defendants, if the late brother of the appellant had died and if the defendants had not impleaded the legal representatives of late brother and the appeal abated as against him, would it then not open to the appellant as respondent in the appeal to contend that if the appeal was to be allowed to proceed in the absence of the legal representatives of his late brother and succeed, there would be an inconsistent decree. On the one hand, there will be a decree by the trial Court declaring that the first defendant was not the adopted son and had no interest in the property qua the late brother of the appellant. On the other hand, the appellate court could be invited to pass a decree which should be to the effect that the first defendant was found to be the adopted son and had right and interest over the property and a declaration to that effect would have to be granted. Would not the appellate court then have to necessarily hold though the decree in favour of the deceased brother of the appellant has become final, and under it, a declaration is granted that the defendant No.1 is not the adopted son and he has no right to claim the property and there is an injunction against him that he is the adopted son opposed to the decree which has been passed by the trial court which has attained finality. We would think that the appellate court would indeed have to refuse to proceed with the appeal on the basis that allowing the appeal by the defendants would lead to an appellate decree which is inconsistent with the decree which has become final as against the deceased brother of the appellant19. We would think that the situation cannot be any other different, when we contemplate the converse of the aforesaid scenario which happens to be the factual matrix obtaining in this case. The right which was set up by the appellant alongwith his late brother was joint. They were members of the joint Hindu family consisting of their late father and which consisted of late Govindareddi, their father Shriram Reddy and Basavareddi, who was none other than the husband of the second defendant. This is not a case where their claims were distinct claims. This is not the situation which was present in the case dealt with by the Constitution Bench under the land acquisition case. Therein, several persons came together and sought relief in one proceeding. We would think that this is not the position in this case20. It may be true that if a separate suit had been filed by the late brother and it had abated on his death, there will be no decree on merits and the suit would have abated. No doubt, it could be argued that even though the appellant and his late brother set up the case of joint right, it would only mean that they are co-owners of the property, and therefore, they had independent rights as co-owners which could be canvassed in two different proceedings, and therefore, the decree of the trial court dismissing the suit be treated as two different decrees - one decree against the appellant and the other against his late brother. Even then, the decree, which the High court would be invited to pass, would be contradictory and inconsistent with the decree as against late brother of the appellant which may not be permissible in law21. The decree, which the appellant, if successful in the appeal, would obtain, would be absolutely contrary to the decree which has also attained finality between his late brother and the defendants. They are mutually irreconcilable, totally inconsistent. Laying one side by side, the only impression would be that one is in the teeth of the other. In one, the suit is dismissed whereas in the other, the suit would have been decreed22. The argument that in view of the order passed on 10/09/2001 by which despite the death of late brother of the appellant, permission to prosecute the appeal was granted by the court there would arise an estoppel against the order being passed holding that the appeal has abated as a whole, cannot be accepted. The impact of death of the late brother of the appellant qua the proceeding is one arising out of the incompatibility of a decree which has become final with the decree which the appellant invites the appellate court to pass.
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Commissioner of Income Tax, Madras Vs. M. K. K. R. Muthukaruppan Chettiar | his notes in the order sheet dated June 18, 1953 reproduced below:"The assess is a member of the family of A. M. K. M. K. Karuppan Chettiar, assessed in F.1005-A. I have held in the family file in my order for income tax year 1949-50 that there have been no division between father and son. This being the case, there is no source of income to be separately assessed in the assessee s hands. The return of income in this file relates to the alleged share of income consequent on partition. Since partition has not been accepted, this file has only to be clubbed with the father s file. If, for any reasons, it is ultimately held on appeal that a separate assessment should be made, it will be no doubt be possible to take action under provision of Section 34 as now amended. Since there is no separate income, the pending proceedings will be closed as N. A. and for Income-tax year 1953-54 the file will be removed and clubbed with the family file F.1005-A".The Income-tax Officer in giving effect to the aforesaid order of partition under Section 25-A of the Act and cancelling consequentially the family assessments, simultaneously issued notices under Section 34 on March 2, 1957 for the three assessment years 1950-51, 1951-52 and 1952-53 to the assessee family after obtaining the previous approval of the Commissioner. In response to the notice the assessee submitted its returns on April 9, 1957 for the three assessment years under protest. On the basis of these returns the Income-tax Officer assessed the assessee by his order of the same date for all the three years, ignoring the protest. The assessee appealed to the Appellate Assistant Commissioner but the appeal was dismissed. The assessee took the matter in appeal to the Appellate Tribunal but was unsuccessful. The Appellate Tribunal stated a case to the High Court under Section 66 (1) of the Income-tax Act on the following question of law:"Whether the aforesaid assessments for years 1950-51, 1951-52 and 1952-53 are valid?"The High Court by its judgment dated September 16, 1964 recorded an answer in the affirmative. In the view of the High Court, the order passed by the Appellate Assistant Commissioner and the direction given by him lifted the bar of limitation prescribed by Section 34 (3) of the Act for making the assessment.3. It is not necessary to decide whether the observations made by the Appellate Assistant Commissioner in his order declining to assessee the income of the Hindu undivided family operated to lift the bar of limitation as regards the assessment of income of the separated members by the application of the principle of the judgments of this Court in Income-tax Officer v. Murlidhar Bhagwandas, 52 ITR 335 = (AIR 1965 SC 342 ) and N. Kt. Sivalingam Chettiar v. Commissioner of Income-tax, (1967) 66 ITR 586 (SC). In our opinion the orders passed by the Income-tax authorities and confirmed by the Tribunal suffer from a fundamental defect. As we have already stated, Karuppan Chettiar submitted returns of his income in his individual capacity for the years 1950-51, 1951-52 and 1952-53 in response to the notice issued under Section 22 (2) of the Act. By his order dated June 18, 1953 the Income-tax Officer closed the assessments as no assessments and added that since there was no separate income, the pending proceedings would be closed as N. A. and for income-tax year 1953-54 the file would be removed and clubbed with the family file F. 1005-A. Thereafter the assessee filed two sets of returns for the aforesaid three years, once on February 23, 1955 and again on March 30, 1956. These returns were submitted by the assessee in response to the notice issued on March 2, 1957.It is manifest that in these circumstances notice under Section 34 of the Act cannot be issued to Muthu Karuppan Chettiar and his minor sons unless the returns which had already been filed by that family were disposed of.4. It was held by this Court in Commissioner of Income-tax v. Ranchhoddas Karsondas, 36 ITR 569 = (AIR 1959 SC 1154 ) that the return in answer to the general notice under Section 22 (1) of the Act can, under Section 22 (3), be filed at any time before assessment and for this there is no limit of time. When in respect of any year a return has been voluntarily submitted before assessment, the Income-tax Officer cannot ignore the return and the notice of reassessment and consequent assessment under Section 34 ignoring the return are invalid. In the present case we are of opinion that the order of the Income-tax Officer dated June 18, 1953 is not an order to terminate the proceedings and the result, therefore is that the original returns submitted by the assessee under Section 22 (2) and (3) have not been properly and legally proceeded with.In the case before us the order of the Income-tax Officer dated June 18, 1953 should be interpreted in the light of circumstances in which that order was passed. So interpreted it appears to us that the Income-tax Officer did not intend to conclude the proceedings before him. It follows, therefore, that there is no disposal of the voluntary returns made by the respondent for the assessment years 1950-51, 1951-52 and 1952-53. It is manifest that the assessment proceedings under Section 34 (1) of the Act for the aforesaid three years are invalid.5. In the Estate of the late A. M. K. M. Karuppan Chettiar v. Commissioner of Income-tax, (1969) 72 ITR 403 (SC)it was held by this Court that notices under Section 34 could not be issued against Karuppan Chettiar in his individual capacity unless the returns which had been filed by him are also disposed of and the assessments made pursuant to the notice under Section 34 were therefore invalid for the three years 1950-51, 1951-52 and 1952-53.The principle of this case governs the present case as the material facts are not different. | 0[ds]3. It is not necessary to decidewhether the observations made by the Appellate Assistant Commissioner in his order declining to assessee the income of the Hindu undivided family operated to lift the bar of limitation as regards the assessment of income of the separated membersby the application of the principle of the judgments of this Court inOfficer v. Murlidhar Bhagwandas, 52 ITR 335 = (AIR 1965 SC 342 ) and N. Kt. Sivalingam Chettiar v. Commissioner of(1967) 66 ITR 586 (SC). In our opinion the orders passed by theauthorities and confirmed by the Tribunal suffer from a fundamental defect. As we have already stated, Karuppan Chettiar submitted returns of his income in his individual capacity for the years53 in response to the notice issued under Section 22 (2) of the Act. By his order dated June 18, 1953 theOfficer closed the assessments as no assessments and added that since there was no separate income, the pending proceedings would be closed as N. A. and for54 the file would be removed and clubbed with the family file F.Thereafter the assessee filed two sets of returns for the aforesaid three years, once on February 23, 1955 and again on March 30, 1956. These returns were submitted by the assessee in response to the notice issued on March 2, 1957.It is manifest that in these circumstances notice under Section 34 of the Act cannot be issued to Muthu Karuppan Chettiar and his minor sons unless the returns which had already been filed by that family were disposedthe present case we are of opinion that the order of theOfficer dated June 18, 1953 is not an order to terminate the proceedings and the result, therefore is that the original returns submitted by the assessee under Section 22 (2) and (3) have not been properly and legally proceeded with.In the case before us the order of theOfficer dated June 18, 1953 should be interpreted in the light of circumstances in which that order was passed. So interpreted it appears to us that theOfficer did not intend to conclude the proceedings before him. It follows, therefore, that there is no disposal of the voluntary returns made by the respondent for the assessment years3. It is manifest that the assessment proceedings under Section 34 (1) of the Act for the aforesaid three years are invalid.5. In the Estate of the late A. M. K. M. Karuppan Chettiar v. Commissioner of(1969) 72 ITR 403 (SC)it was held by this Court that notices under Section 34 could not be issued against Karuppan Chettiar in his individual capacity unless the returns which had been filed by him are also disposed of and the assessments made pursuant to the notice under Section 34 were therefore invalid for the three yearshe principle of this case governs the present case as the material facts are not different. | 0 | 1,500 | 523 | ### 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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his notes in the order sheet dated June 18, 1953 reproduced below:"The assess is a member of the family of A. M. K. M. K. Karuppan Chettiar, assessed in F.1005-A. I have held in the family file in my order for income tax year 1949-50 that there have been no division between father and son. This being the case, there is no source of income to be separately assessed in the assessee s hands. The return of income in this file relates to the alleged share of income consequent on partition. Since partition has not been accepted, this file has only to be clubbed with the father s file. If, for any reasons, it is ultimately held on appeal that a separate assessment should be made, it will be no doubt be possible to take action under provision of Section 34 as now amended. Since there is no separate income, the pending proceedings will be closed as N. A. and for Income-tax year 1953-54 the file will be removed and clubbed with the family file F.1005-A".The Income-tax Officer in giving effect to the aforesaid order of partition under Section 25-A of the Act and cancelling consequentially the family assessments, simultaneously issued notices under Section 34 on March 2, 1957 for the three assessment years 1950-51, 1951-52 and 1952-53 to the assessee family after obtaining the previous approval of the Commissioner. In response to the notice the assessee submitted its returns on April 9, 1957 for the three assessment years under protest. On the basis of these returns the Income-tax Officer assessed the assessee by his order of the same date for all the three years, ignoring the protest. The assessee appealed to the Appellate Assistant Commissioner but the appeal was dismissed. The assessee took the matter in appeal to the Appellate Tribunal but was unsuccessful. The Appellate Tribunal stated a case to the High Court under Section 66 (1) of the Income-tax Act on the following question of law:"Whether the aforesaid assessments for years 1950-51, 1951-52 and 1952-53 are valid?"The High Court by its judgment dated September 16, 1964 recorded an answer in the affirmative. In the view of the High Court, the order passed by the Appellate Assistant Commissioner and the direction given by him lifted the bar of limitation prescribed by Section 34 (3) of the Act for making the assessment.3. It is not necessary to decide whether the observations made by the Appellate Assistant Commissioner in his order declining to assessee the income of the Hindu undivided family operated to lift the bar of limitation as regards the assessment of income of the separated members by the application of the principle of the judgments of this Court in Income-tax Officer v. Murlidhar Bhagwandas, 52 ITR 335 = (AIR 1965 SC 342 ) and N. Kt. Sivalingam Chettiar v. Commissioner of Income-tax, (1967) 66 ITR 586 (SC). In our opinion the orders passed by the Income-tax authorities and confirmed by the Tribunal suffer from a fundamental defect. As we have already stated, Karuppan Chettiar submitted returns of his income in his individual capacity for the years 1950-51, 1951-52 and 1952-53 in response to the notice issued under Section 22 (2) of the Act. By his order dated June 18, 1953 the Income-tax Officer closed the assessments as no assessments and added that since there was no separate income, the pending proceedings would be closed as N. A. and for income-tax year 1953-54 the file would be removed and clubbed with the family file F. 1005-A. Thereafter the assessee filed two sets of returns for the aforesaid three years, once on February 23, 1955 and again on March 30, 1956. These returns were submitted by the assessee in response to the notice issued on March 2, 1957.It is manifest that in these circumstances notice under Section 34 of the Act cannot be issued to Muthu Karuppan Chettiar and his minor sons unless the returns which had already been filed by that family were disposed of.4. It was held by this Court in Commissioner of Income-tax v. Ranchhoddas Karsondas, 36 ITR 569 = (AIR 1959 SC 1154 ) that the return in answer to the general notice under Section 22 (1) of the Act can, under Section 22 (3), be filed at any time before assessment and for this there is no limit of time. When in respect of any year a return has been voluntarily submitted before assessment, the Income-tax Officer cannot ignore the return and the notice of reassessment and consequent assessment under Section 34 ignoring the return are invalid. In the present case we are of opinion that the order of the Income-tax Officer dated June 18, 1953 is not an order to terminate the proceedings and the result, therefore is that the original returns submitted by the assessee under Section 22 (2) and (3) have not been properly and legally proceeded with.In the case before us the order of the Income-tax Officer dated June 18, 1953 should be interpreted in the light of circumstances in which that order was passed. So interpreted it appears to us that the Income-tax Officer did not intend to conclude the proceedings before him. It follows, therefore, that there is no disposal of the voluntary returns made by the respondent for the assessment years 1950-51, 1951-52 and 1952-53. It is manifest that the assessment proceedings under Section 34 (1) of the Act for the aforesaid three years are invalid.5. In the Estate of the late A. M. K. M. Karuppan Chettiar v. Commissioner of Income-tax, (1969) 72 ITR 403 (SC)it was held by this Court that notices under Section 34 could not be issued against Karuppan Chettiar in his individual capacity unless the returns which had been filed by him are also disposed of and the assessments made pursuant to the notice under Section 34 were therefore invalid for the three years 1950-51, 1951-52 and 1952-53.The principle of this case governs the present case as the material facts are not different.
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3. It is not necessary to decidewhether the observations made by the Appellate Assistant Commissioner in his order declining to assessee the income of the Hindu undivided family operated to lift the bar of limitation as regards the assessment of income of the separated membersby the application of the principle of the judgments of this Court inOfficer v. Murlidhar Bhagwandas, 52 ITR 335 = (AIR 1965 SC 342 ) and N. Kt. Sivalingam Chettiar v. Commissioner of(1967) 66 ITR 586 (SC). In our opinion the orders passed by theauthorities and confirmed by the Tribunal suffer from a fundamental defect. As we have already stated, Karuppan Chettiar submitted returns of his income in his individual capacity for the years53 in response to the notice issued under Section 22 (2) of the Act. By his order dated June 18, 1953 theOfficer closed the assessments as no assessments and added that since there was no separate income, the pending proceedings would be closed as N. A. and for54 the file would be removed and clubbed with the family file F.Thereafter the assessee filed two sets of returns for the aforesaid three years, once on February 23, 1955 and again on March 30, 1956. These returns were submitted by the assessee in response to the notice issued on March 2, 1957.It is manifest that in these circumstances notice under Section 34 of the Act cannot be issued to Muthu Karuppan Chettiar and his minor sons unless the returns which had already been filed by that family were disposedthe present case we are of opinion that the order of theOfficer dated June 18, 1953 is not an order to terminate the proceedings and the result, therefore is that the original returns submitted by the assessee under Section 22 (2) and (3) have not been properly and legally proceeded with.In the case before us the order of theOfficer dated June 18, 1953 should be interpreted in the light of circumstances in which that order was passed. So interpreted it appears to us that theOfficer did not intend to conclude the proceedings before him. It follows, therefore, that there is no disposal of the voluntary returns made by the respondent for the assessment years3. It is manifest that the assessment proceedings under Section 34 (1) of the Act for the aforesaid three years are invalid.5. In the Estate of the late A. M. K. M. Karuppan Chettiar v. Commissioner of(1969) 72 ITR 403 (SC)it was held by this Court that notices under Section 34 could not be issued against Karuppan Chettiar in his individual capacity unless the returns which had been filed by him are also disposed of and the assessments made pursuant to the notice under Section 34 were therefore invalid for the three yearshe principle of this case governs the present case as the material facts are not different.
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Nagar Ayukt Nagar Nigam, Kanpur and Ors Vs. Mujib Ullah Khan and Ors | employees of the Municipalities are entitled to the gratuity in terms of the provisions of the Act. 6. The appellant relies upon Section 3 of the U.P Dookan Aur Vanijya Adhishthan Adhiniyam, 1962 1962 Act which is to the effect that such Act will have no application to the office of Government or Local Bodies. Therefore, on the strength of such statutory provision, it was argued that the Act would not be applicable in respect of the Municipalities. The appellant is not a factory, mine, oilfield, plantation, port and railway company and that there is no notification as stipulated under Clause (c) of Section 1(3) of the Act. Therefore, the employees of the Municipalities are entitled to the gratuity in terms of the Regulations framed in exercise of powers of Section 548 of the 1959 Act and not under the Act. 7. On the other hand, learned counsel for the respondent pointed out that the Central Government has published a notification in terms of Section 1(3)(c) of the Act on 08.01.1982 to extend the applicability of the Act to the Municipalities. Thus, the Act is applicable to the Municipalities. The relevant provisions of the Act read as under: “1. Short title, extent, application and commencement.- (1) This Act may be called the Payment of Gratuity Act, 1972.(2) It extends to the whole of India: Provided that in so far as it relates to plantations or ports, it shall not extend to the State of Jammu and Kashmir.(3) It shall apply to- (a) every factory, mine, oilfield, plantation, port and railway company;(b) every shop or establishment within the meaning of any law for the time being in force in relation to shops and establishments in a State, in which ten or more persons are employed, or were employed, on any day of the preceding twelve months;(c) such other establishments or class of establishments, in which ten or more employees are employed, or were employed, on any day of the preceding twelve months, as the Central Government may, by notification, specify in this behalf.” 8. A perusal of the above provisions would show that the Act is applicable to (1) every factory, mine, oilfield, plantation, port and railway company; (2) every shop or establishment within the meaning of any law for the time being in force in relation to shops and establishments in a State, in which ten or more persons are employed, the said provision has two conditions, viz. (i) a shop or establishments within the meaning of a State law and (ii) in which ten or more persons are employed; and (3) the establishments or class of establishments which Central Government may notify.9. The appellant is not covered by clauses (a) and (b) of Section 1(3) of the Act. Clause (a) is not applicable on the face of the provisions, but even clause (b) is not applicable in view of Section 3 (c) of the 1962 Act as such Act is not applicable to the offices of the Government or local authorities. The Local Authorities means a municipal committee, district board etc or entrusted with the control or management of a municipal or local fund in terms of Section 3(31) of the General Clauses Act, 1897.10. In terms of the above said Section 1(3)(c) of the Act, the Central Government has published a notification on 08.01.1982 and specified Local Bodies in which ten or more persons are employed, or were employed, on any day of the preceding twelve months as a class of establishment to which this Act shall apply. The said notification dated 08.01.1982 reads as under:- “ New Delhi, the 8 th January, 1982 NOTIFICATION S.O. No. 239….-In exercise of the powers conferred by clause (c) of sub-section (3) of section 1 of the Payment of Gratuity Act, 1972 (39 of 1972), the Central Government hereby specified ‘local bodies’ in which ten or more persons are employed, or were employed, on any day preceding twelve months, as a class of establishments to which the said Act shall apply with effect from the date of publication of this notification in the Official Gazette. Sd/. (R. K. A. Subrahmanya) Additional Secretary (F . No. S-70020/16/77-FPG) 11. We find that the notification dated 08.01.1982 was not referred to before the High Court. Such notification makes it abundantly clear that the Act is applicable to the local bodies i.e., the Municipalities. Section 14 of the Act has given an overriding effect over any other inconsistent provision in any other enactment. The said provision reads as under: “14. Act to override other enactments, etc. – The provisions of this Act or any rule made thereunder shall have effect notwithstanding anything inconsistent therewith contained in any enactment other than this Act or in any instrument or contract having effect by virtue of any enactment other than this Act.” 12. In view of Section 14 of the Act, the provision in the State Act contemplating payment of Gratuity will be inapplicable in respect of the employees of the local bodies.13. Section 2(e) of the Act alone was referred to in the judgment reported as Municipal Corporation of Delhi (supra). The said judgment is in the context of CCS (Pension) Rules, 1972 1972 Rules which specifically provides for payment of Pension and Gratuity. The Act is applicable to the Municipalities, therefore, it is wholly inconsequential even if there is no reference to the notification dated 08.01.1982.14. The entire argument of the appellant is that the State Act confers restrictive benefit of gratuity than what is conferred under the Central Act. Such argument is not tenable in view of Section 14 of the Act and that liberal payment of gratuity is in fact in the interest of the employees. Thus, the gratuity would be payable under the Act. Such is the view taken by the Controlling Authority.15. In view of the aforesaid, we find that there is no error in the orders passed by the Controlling Authorities under the Act and as maintained by the High Court. | 0[ds]8. A perusal of the above provisions would show that the Act is applicable to (1) every factory, mine, oilfield, plantation, port and railway company; (2) every shop or establishment within the meaning of any law for the time being in force in relation to shops and establishments in a State, in which ten or more persons are employed, the said provision has two conditions, viz. (i) a shop or establishments within the meaning of a State law and (ii) in which ten or more persons are employed; and (3) the establishments or class of establishments which Central Government may notify.9. The appellant is not covered by clauses (a) and (b) of Section 1(3) of the Act. Clause (a) is not applicable on the face of the provisions, but even clause (b) is not applicable in view of Section 3 (c) of the 1962 Act as such Act is not applicable to the offices of the Government or local authorities. The Local Authorities means a municipal committee, district board etc or entrusted with the control or management of a municipal or local fund in terms of Section 3(31) of the General Clauses Act, 1897.10. In terms of the above said Section 1(3)(c) of the Act, the Central Government has published a notification on 08.01.1982 and specified Local Bodies in which ten or more persons are employed, or were employed, on any day of the preceding twelve months as a class of establishment to which this Act shall apply.We find that the notification dated 08.01.1982 was not referred to before the High Court. Such notification makes it abundantly clear that the Act is applicable to the local bodies i.e., the Municipalities. Section 14 of the Act has given an overriding effect over any other inconsistent provision in any other enactment.In view of Section 14 of the Act, the provision in the State Act contemplating payment of Gratuity will be inapplicable in respect of the employees of the local bodies.13. Section 2(e) of the Act alone was referred to in the judgment reported as Municipal Corporation of Delhi (supra). The said judgment is in the context of CCS (Pension) Rules, 1972 1972 Rules which specifically provides for payment of Pension and Gratuity. The Act is applicable to the Municipalities, therefore, it is wholly inconsequential even if there is no reference to the notification dated 08.01.1982.14.The entire argument of the appellant is that the State Act confers restrictive benefit of gratuity than what is conferred under the CentralAct. Such argument is not tenable in view of Section 14 of the Act and that liberal payment of gratuity is in fact in the interest of the employees. Thus, the gratuity would be payable under the Act. Such is the view taken by the Controlling Authority.15. In view of the aforesaid, we find that there is no error in the orders passed by the Controlling Authorities under the Act and as maintained by the High Court. | 0 | 1,649 | 572 | ### 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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employees of the Municipalities are entitled to the gratuity in terms of the provisions of the Act. 6. The appellant relies upon Section 3 of the U.P Dookan Aur Vanijya Adhishthan Adhiniyam, 1962 1962 Act which is to the effect that such Act will have no application to the office of Government or Local Bodies. Therefore, on the strength of such statutory provision, it was argued that the Act would not be applicable in respect of the Municipalities. The appellant is not a factory, mine, oilfield, plantation, port and railway company and that there is no notification as stipulated under Clause (c) of Section 1(3) of the Act. Therefore, the employees of the Municipalities are entitled to the gratuity in terms of the Regulations framed in exercise of powers of Section 548 of the 1959 Act and not under the Act. 7. On the other hand, learned counsel for the respondent pointed out that the Central Government has published a notification in terms of Section 1(3)(c) of the Act on 08.01.1982 to extend the applicability of the Act to the Municipalities. Thus, the Act is applicable to the Municipalities. The relevant provisions of the Act read as under: “1. Short title, extent, application and commencement.- (1) This Act may be called the Payment of Gratuity Act, 1972.(2) It extends to the whole of India: Provided that in so far as it relates to plantations or ports, it shall not extend to the State of Jammu and Kashmir.(3) It shall apply to- (a) every factory, mine, oilfield, plantation, port and railway company;(b) every shop or establishment within the meaning of any law for the time being in force in relation to shops and establishments in a State, in which ten or more persons are employed, or were employed, on any day of the preceding twelve months;(c) such other establishments or class of establishments, in which ten or more employees are employed, or were employed, on any day of the preceding twelve months, as the Central Government may, by notification, specify in this behalf.” 8. A perusal of the above provisions would show that the Act is applicable to (1) every factory, mine, oilfield, plantation, port and railway company; (2) every shop or establishment within the meaning of any law for the time being in force in relation to shops and establishments in a State, in which ten or more persons are employed, the said provision has two conditions, viz. (i) a shop or establishments within the meaning of a State law and (ii) in which ten or more persons are employed; and (3) the establishments or class of establishments which Central Government may notify.9. The appellant is not covered by clauses (a) and (b) of Section 1(3) of the Act. Clause (a) is not applicable on the face of the provisions, but even clause (b) is not applicable in view of Section 3 (c) of the 1962 Act as such Act is not applicable to the offices of the Government or local authorities. The Local Authorities means a municipal committee, district board etc or entrusted with the control or management of a municipal or local fund in terms of Section 3(31) of the General Clauses Act, 1897.10. In terms of the above said Section 1(3)(c) of the Act, the Central Government has published a notification on 08.01.1982 and specified Local Bodies in which ten or more persons are employed, or were employed, on any day of the preceding twelve months as a class of establishment to which this Act shall apply. The said notification dated 08.01.1982 reads as under:- “ New Delhi, the 8 th January, 1982 NOTIFICATION S.O. No. 239….-In exercise of the powers conferred by clause (c) of sub-section (3) of section 1 of the Payment of Gratuity Act, 1972 (39 of 1972), the Central Government hereby specified ‘local bodies’ in which ten or more persons are employed, or were employed, on any day preceding twelve months, as a class of establishments to which the said Act shall apply with effect from the date of publication of this notification in the Official Gazette. Sd/. (R. K. A. Subrahmanya) Additional Secretary (F . No. S-70020/16/77-FPG) 11. We find that the notification dated 08.01.1982 was not referred to before the High Court. Such notification makes it abundantly clear that the Act is applicable to the local bodies i.e., the Municipalities. Section 14 of the Act has given an overriding effect over any other inconsistent provision in any other enactment. The said provision reads as under: “14. Act to override other enactments, etc. – The provisions of this Act or any rule made thereunder shall have effect notwithstanding anything inconsistent therewith contained in any enactment other than this Act or in any instrument or contract having effect by virtue of any enactment other than this Act.” 12. In view of Section 14 of the Act, the provision in the State Act contemplating payment of Gratuity will be inapplicable in respect of the employees of the local bodies.13. Section 2(e) of the Act alone was referred to in the judgment reported as Municipal Corporation of Delhi (supra). The said judgment is in the context of CCS (Pension) Rules, 1972 1972 Rules which specifically provides for payment of Pension and Gratuity. The Act is applicable to the Municipalities, therefore, it is wholly inconsequential even if there is no reference to the notification dated 08.01.1982.14. The entire argument of the appellant is that the State Act confers restrictive benefit of gratuity than what is conferred under the Central Act. Such argument is not tenable in view of Section 14 of the Act and that liberal payment of gratuity is in fact in the interest of the employees. Thus, the gratuity would be payable under the Act. Such is the view taken by the Controlling Authority.15. In view of the aforesaid, we find that there is no error in the orders passed by the Controlling Authorities under the Act and as maintained by the High Court.
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8. A perusal of the above provisions would show that the Act is applicable to (1) every factory, mine, oilfield, plantation, port and railway company; (2) every shop or establishment within the meaning of any law for the time being in force in relation to shops and establishments in a State, in which ten or more persons are employed, the said provision has two conditions, viz. (i) a shop or establishments within the meaning of a State law and (ii) in which ten or more persons are employed; and (3) the establishments or class of establishments which Central Government may notify.9. The appellant is not covered by clauses (a) and (b) of Section 1(3) of the Act. Clause (a) is not applicable on the face of the provisions, but even clause (b) is not applicable in view of Section 3 (c) of the 1962 Act as such Act is not applicable to the offices of the Government or local authorities. The Local Authorities means a municipal committee, district board etc or entrusted with the control or management of a municipal or local fund in terms of Section 3(31) of the General Clauses Act, 1897.10. In terms of the above said Section 1(3)(c) of the Act, the Central Government has published a notification on 08.01.1982 and specified Local Bodies in which ten or more persons are employed, or were employed, on any day of the preceding twelve months as a class of establishment to which this Act shall apply.We find that the notification dated 08.01.1982 was not referred to before the High Court. Such notification makes it abundantly clear that the Act is applicable to the local bodies i.e., the Municipalities. Section 14 of the Act has given an overriding effect over any other inconsistent provision in any other enactment.In view of Section 14 of the Act, the provision in the State Act contemplating payment of Gratuity will be inapplicable in respect of the employees of the local bodies.13. Section 2(e) of the Act alone was referred to in the judgment reported as Municipal Corporation of Delhi (supra). The said judgment is in the context of CCS (Pension) Rules, 1972 1972 Rules which specifically provides for payment of Pension and Gratuity. The Act is applicable to the Municipalities, therefore, it is wholly inconsequential even if there is no reference to the notification dated 08.01.1982.14.The entire argument of the appellant is that the State Act confers restrictive benefit of gratuity than what is conferred under the CentralAct. Such argument is not tenable in view of Section 14 of the Act and that liberal payment of gratuity is in fact in the interest of the employees. Thus, the gratuity would be payable under the Act. Such is the view taken by the Controlling Authority.15. In view of the aforesaid, we find that there is no error in the orders passed by the Controlling Authorities under the Act and as maintained by the High Court.
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Saketh India Ltd. Vs. M/S. India Securities Ltd | which the cause of action arises under clause (c) of the proviso to Section 138; (c) no court inferior to that of a Metropolitan Magistrate or a Judicial Magistrate of the first class shall try any offence punishable under Section 138." 5. Aforequoted Section 138 of the Act inter alia provides that where any cheque drawn by a person is returned by the Bank unpaid, such person shall be deemed to have committed an offence, however, it will apply, if conditions mentioned in clauses (a), (b) and (c) are satisfied. Section 142 further provides that Court shall take cognizance of any offence punishable under Section 138 on a written complaint made by the payee or the holder in due course, if such complaint is filed within one month of the date on which the cause of action arises. A month is to be reckoned according to the British Calendar as defined in the General Clauses Act, 1897. The question would be whether for calculating the period of one month which is prescribed under Section 142(b), the period has to be reckoned by excluding the date on which the cause of action arose ? 6. Similar contention was considered by this Court in the case of Haru Das Gupta v. State of West Bengal, 1972(1) SCC 639 wherein it was held that the rule is well established that where a particular time is given from a certain date within which an act is to be done, the day on that day is to be excluded; the effect of defining period from such a day until such a day within which an act is to be done is to exclude the first day and to include the last day. In the context of that case, the Court held that in computing the period of three months from the date of detention, which was February 5th, 1971, before the expiration of which the order or decision for confirming the detention order and continuing the detention thereunder had to be made, the date of the commencement of detention, namely, February 5th has to be excluded; so done, the order of confirmation dated May 5th, 1971 was made before the expiration of the period of three months from the date of detention. The Court held that there is no reason why the aforesaid rule of construction followed consistently and for so long should not be applied. For the aforesaid principle Court referred to the principle followed in English Courts. The relevant discussion is hereunder :- "These decisions show that courts have drawn a distinction between a term created within which an act may be done and a time limited for the doing of an act. The rule is well established that where a particular time is given from a certain date within which an act is to be done, the day on that date is to be excluded. (See Goldsmith Company v. The West Metropolitan Railway Company, 1904 KB 1 at 5). This rule was followed in Cartwrright v. Maccormack, 1963(1) All ER 11 at 13 where the expression "fifteen days from the commencement of the policy" in a cover note issued by an insurance company was construed as excluding the first date and the cover note to commence at midnight of that day and also in Marren v. Dawson Bentley & Co. Ltd., 1961(2) WB 135 a case for compensation for injuries received in the course of employment, where for purposes of computing the period of limitation the date of the accident, being the date of the cause of action, was excluded. (See also Stewart v. Chadman, 1951(2) KB 792 and In re North, Ex parte Wasluck, 1895(2) QB 264. Thus, as a general rule the effect of defining a period from such a day until such a day within which an act is to be done is to exclude the first day and to include the last day. (See Halsburys Laws of England, (3rd ed.), vol. 37, pp. 92 and 95.) There is no reason why the aforesaid rule of construction followed consistently and for so long should not also be applied here." 7. The aforesaid principle of excluding the day from which the period is to be reckoned is incorporated in Section 12(1) and (2) of the Limitation Act, 1963. Section 12(1) specifically provides that in computing the period of limitation for any suit, appeal or application, the day from which such period is to be reckoned, shall be excluded. Similar provision is made in sub-section (2) for appeal, revision or review. The same principle is also incorporated in Section 9 of General Clauses Act, 1897 which, inter alia, provides that in any Central Act made after the commencement of the General Clauses Act, it shall be sufficient, for the purpose of excluding the first in a series of days or any other period of time, to use the word `from, and, for the purpose of including the last in a series of days or any other period of time, to use the word `to. 8. Hence, there is no reason for not adopting the rule enunciated in the aforesaid case which is consistently followed and which is adopted in the General Clauses Act and the Limitation Act. Ordinarily in computing the time, the rule observed is to exclude the first day and to include the last. Applying the said rule, the period of one month for filing the complaint will be reckoned from the day immediately following the day on which the period of 15 days from the date of the receipt of the notice by the drawer, expires. Period of 15 days, in the present case, expired on 14th October, 1995. So cause of action for filing complaint would arise from 15th October, 1995. That day (15th October) is to be excluded for counting the period of one month. Complaint is filed on 15th November, 1995. The result would be that the complaint filed on 15th November is within time. | 0[ds]7. The aforesaid principle of excluding the day from which the period is to be reckoned is incorporated in Section 12(1) and (2) ofthe Limitation Act,. Section 12(1) specifically provides that in computing the period of limitation for any suit, appeal or application, the day from which such period is to be reckoned, shall be excluded. Similar provision is made in sub-section (2) for appeal, revision or review. The same principle is also incorporated in Section 9 of General Clauses Act, 1897 which, inter alia, provides that in any Central Act made after the commencement of the General Clauses Act, it shall be sufficient, for the purpose of excluding the first in a series of days or any other period of time, to use the word `from, and, for the purpose of including the last in a series of days or any other period of time, to use the word `to8. Hence, there is no reason for not adopting the rule enunciated in the aforesaid case which is consistently followed and which is adopted in the General Clauses Act and the Limitation Act. Ordinarily in computing the time, the rule observed is to exclude the first day and to include the last. Applying the said rule, the period of one month for filing the complaint will be reckoned from the day immediately following the day on which the period of 15 days from the date of the receipt of the notice by the drawer, expires. Period of 15 days, in the present case, expired on 14th October, 1995. So cause of action for filing complaint would arise from 15th October, 1995. That day (15th October) is to be excluded for counting the period of one month. Complaint is filed on 15th November, 1995. The result would be that the complaint filed on 15th November is within time. | 0 | 1,861 | 361 | ### 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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which the cause of action arises under clause (c) of the proviso to Section 138; (c) no court inferior to that of a Metropolitan Magistrate or a Judicial Magistrate of the first class shall try any offence punishable under Section 138." 5. Aforequoted Section 138 of the Act inter alia provides that where any cheque drawn by a person is returned by the Bank unpaid, such person shall be deemed to have committed an offence, however, it will apply, if conditions mentioned in clauses (a), (b) and (c) are satisfied. Section 142 further provides that Court shall take cognizance of any offence punishable under Section 138 on a written complaint made by the payee or the holder in due course, if such complaint is filed within one month of the date on which the cause of action arises. A month is to be reckoned according to the British Calendar as defined in the General Clauses Act, 1897. The question would be whether for calculating the period of one month which is prescribed under Section 142(b), the period has to be reckoned by excluding the date on which the cause of action arose ? 6. Similar contention was considered by this Court in the case of Haru Das Gupta v. State of West Bengal, 1972(1) SCC 639 wherein it was held that the rule is well established that where a particular time is given from a certain date within which an act is to be done, the day on that day is to be excluded; the effect of defining period from such a day until such a day within which an act is to be done is to exclude the first day and to include the last day. In the context of that case, the Court held that in computing the period of three months from the date of detention, which was February 5th, 1971, before the expiration of which the order or decision for confirming the detention order and continuing the detention thereunder had to be made, the date of the commencement of detention, namely, February 5th has to be excluded; so done, the order of confirmation dated May 5th, 1971 was made before the expiration of the period of three months from the date of detention. The Court held that there is no reason why the aforesaid rule of construction followed consistently and for so long should not be applied. For the aforesaid principle Court referred to the principle followed in English Courts. The relevant discussion is hereunder :- "These decisions show that courts have drawn a distinction between a term created within which an act may be done and a time limited for the doing of an act. The rule is well established that where a particular time is given from a certain date within which an act is to be done, the day on that date is to be excluded. (See Goldsmith Company v. The West Metropolitan Railway Company, 1904 KB 1 at 5). This rule was followed in Cartwrright v. Maccormack, 1963(1) All ER 11 at 13 where the expression "fifteen days from the commencement of the policy" in a cover note issued by an insurance company was construed as excluding the first date and the cover note to commence at midnight of that day and also in Marren v. Dawson Bentley & Co. Ltd., 1961(2) WB 135 a case for compensation for injuries received in the course of employment, where for purposes of computing the period of limitation the date of the accident, being the date of the cause of action, was excluded. (See also Stewart v. Chadman, 1951(2) KB 792 and In re North, Ex parte Wasluck, 1895(2) QB 264. Thus, as a general rule the effect of defining a period from such a day until such a day within which an act is to be done is to exclude the first day and to include the last day. (See Halsburys Laws of England, (3rd ed.), vol. 37, pp. 92 and 95.) There is no reason why the aforesaid rule of construction followed consistently and for so long should not also be applied here." 7. The aforesaid principle of excluding the day from which the period is to be reckoned is incorporated in Section 12(1) and (2) of the Limitation Act, 1963. Section 12(1) specifically provides that in computing the period of limitation for any suit, appeal or application, the day from which such period is to be reckoned, shall be excluded. Similar provision is made in sub-section (2) for appeal, revision or review. The same principle is also incorporated in Section 9 of General Clauses Act, 1897 which, inter alia, provides that in any Central Act made after the commencement of the General Clauses Act, it shall be sufficient, for the purpose of excluding the first in a series of days or any other period of time, to use the word `from, and, for the purpose of including the last in a series of days or any other period of time, to use the word `to. 8. Hence, there is no reason for not adopting the rule enunciated in the aforesaid case which is consistently followed and which is adopted in the General Clauses Act and the Limitation Act. Ordinarily in computing the time, the rule observed is to exclude the first day and to include the last. Applying the said rule, the period of one month for filing the complaint will be reckoned from the day immediately following the day on which the period of 15 days from the date of the receipt of the notice by the drawer, expires. Period of 15 days, in the present case, expired on 14th October, 1995. So cause of action for filing complaint would arise from 15th October, 1995. That day (15th October) is to be excluded for counting the period of one month. Complaint is filed on 15th November, 1995. The result would be that the complaint filed on 15th November is within time.
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7. The aforesaid principle of excluding the day from which the period is to be reckoned is incorporated in Section 12(1) and (2) ofthe Limitation Act,. Section 12(1) specifically provides that in computing the period of limitation for any suit, appeal or application, the day from which such period is to be reckoned, shall be excluded. Similar provision is made in sub-section (2) for appeal, revision or review. The same principle is also incorporated in Section 9 of General Clauses Act, 1897 which, inter alia, provides that in any Central Act made after the commencement of the General Clauses Act, it shall be sufficient, for the purpose of excluding the first in a series of days or any other period of time, to use the word `from, and, for the purpose of including the last in a series of days or any other period of time, to use the word `to8. Hence, there is no reason for not adopting the rule enunciated in the aforesaid case which is consistently followed and which is adopted in the General Clauses Act and the Limitation Act. Ordinarily in computing the time, the rule observed is to exclude the first day and to include the last. Applying the said rule, the period of one month for filing the complaint will be reckoned from the day immediately following the day on which the period of 15 days from the date of the receipt of the notice by the drawer, expires. Period of 15 days, in the present case, expired on 14th October, 1995. So cause of action for filing complaint would arise from 15th October, 1995. That day (15th October) is to be excluded for counting the period of one month. Complaint is filed on 15th November, 1995. The result would be that the complaint filed on 15th November is within time.
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Aukland Jute Company Limited Vs. Tulsichandra Goswami (A Ward of Court Represented By The Manager, Goswami Ward Estate, Srerampur) | the only questions which remain for decision by this Court are : (1) Whether the Collector, overriding the contract between the parties, had authority to fix the rent in respect of the alluvial lands, under Bengal Regulation VII of 1822 read with Bengal Alluvial Lands Settlement Act (Act XXXI of 1858); and ... (2) What is the effect of an entry made by the Collector under section 9 of Regulation VII of 1822 ? 3. As regards the first question, it seems to me that the whole scheme of Regulation VII of 1822 was ascertain facts, as it was found that the previous settlement of revenue was made on incorrect data. The regulation was therefore passed to enable the Collector and Revenue authorities to find out the actual rents received by the landlords and when it was not easy to ascertain the same to find out what was the customary rent in the locality. This appears to have been considered the proper data on which the revenue payable to Government could be more equitably fixed. Reading the Regulation as a whole, I do not think it empowers the Collector, when he finds a certain amount paid actually as rent, to fix - either a higher or a lower rent. His duty was merely to ascertain and not to fix any fair or equitable rent. Such construction put on the wording of section 9 of Regulation VII of 1822 in Ishur Chandra Sarkar v. Troylukhya Nath, and Jagadindra Nath Roy v. Mohendra Nath Moozumdar is correct. Act XXXI of 1858 is limited to alluvial lands and in section 2 thereof the word determine is used. As those lands came into existence for the first time, there could not be any previous rents in respect thereof. The word determine is, under the circumstances, appropriate to be used, although it does not empower the Collector to fix any other rent if some agreement in respect of such alluvial land found to exist. Section 2 of Act XXXI of 1858 does not expressly enlarge the powers of the Collector and read as a supplement to Regulation VII of 1822 does not enlarge the powers deemed to exist in the Collector in respect of the alluvial lands. The provisions in Regulation VII of 1822 relating to appeals etc., do not affect the powers of the Collector under section 9. In Kumar Chandra Singh Dudhoria v. Midnapore zamindary Co., although the newly formed alluvial land was treated as a separate estate under Act XXXI of 1858 the rent of the tenants was fixed under the Bengal Tenancy Act. In my opinion therefore, when an agreement in respect of rent as between a landlord and tenant exists, the Collector has no power under section 9 of Regulation VII of 1822 or under section 2 of Act XXXI of 1858 to fix (i.e., ascertain or determine) any other rent for the lands in question. Those sections define the limits of his jurisdiction and if he does anything beyond those limits his conclusion is not binding on the landlords or the tenant. 4. On the second question, the entry which the Collector is authorised to make, as a result of his enquiries, acquires a presumptive value of its correctness provided he has acted within the powers given to him by the Regulation. If however he has chosen to exceed those powers and fixed what he consider reasonable or fair rent (which is not the actual rent the tenant is under a contract to pay), in my opinion, the entry made in the record of rights in the excessive exercise of the Collectors powers has not the probative value given to it by the section. Assuming that an entry in fact is found in the regard of rights, at best it has a presumptive value and either party who is aggrieved is entitled to show that the entry is incorrect and is not made in the proper exercise of the powers of the Collector. This can be done, as stated in the section itself, in two ways : (1) by mutual agreement subsequently made between the parties; or (2) as a result of contest in a regular suit. The expression regular suit in the section is used in contrast to a summary suit or a revenue suit. It means a suit in a court having ordinary civil jurisdiction. In such a suit, the correctness or the binding nature of such an entry could be challenged either by the plaintiff filing a suit or by the defendant by way of defence. I do not think the words used in the section limit the right to challenge the entry only to the plaintiff. The section does not exclude the right of a defendant by way of defence to contest the accuracy of the entry. The effect of an entry made under Act XXXI of 1858 is not higher. It has the same probative value as an entry made under Regulation VII of 1822. 5. Under the circumstances, in my opinion, it was open to the Appellants to challenge the correctness of the entry and its binding nature on them in the suit filed by the respondent to recover rent from them. I find nothing in Regulation VII of 1822 or Act XXXI of 1858 to prevent such defence being raised. It may be notices that while the accuracy or binding nature of such an entry is contemplated to be contested in a regular suit, unlike provisions found in other Acts in similar circumstances no provision prescribing a time within such a suit has to be brought, is found in the Regulation. That supports the view that these objections could be raised by way of defence also. 6. In my opinion, the learned Judges who decided the appeal were in the error in disregarding the decision of their Court in Dhirendra Chandra Rai v. Nawab Khaja Habibulla. That case was decided on the correct interpretation of the relevant provisions of these two legislations. | 1[ds]It is a settled canon of construction that the interpreter should place himself as far as possible in the position of those whose words he is interpreting, and the meaning of certain words he is interpreting, and the meaning of certain words and terms used in an ancient document or a statute can be properly explained only by reference to the circumstances existing at the time when the statute was enacted or the document was written (x).It is a settled canon of construction that the interpreter should place himself as far as possible in the position of those whose words he is interpreting, and the meaning of certain words he is interpreting, and the meaning of certain words and terms used in an ancient document or a statute can be properly explained only by reference to the circumstances existing at the time when the statute was enacted or the document was written (x).71. The full title of the Regulation and its lengthy preamble give a clear idea of the objects it was intended to secure. The main object undoubtly was to declare the principles according to which the settlement of revenue was to be made in the new provinces. The preamble stated that the wish and intention of the Government were that in revising the existing settlement, the efforts of the Revenue Officers should be directed not to any extensive enhancement of the jama but to the objects of equalising the public burthens, and of ascertaining, settling and recording the rights, interest, privileges and properties of all persons and classes possessing interest in the lands or in the rent of produce thereof. In the third place, it was stated that it was the desire of the Government that the proceedings held and the records formed by the Collectors should be such that all demands, claims and suits might be adjudged and determined according to the facts stated therein unless they were formally altered or shown to be incorrect after full investigation on a regular suit.Sec. 9 clause (1) which is material to the present case lays down the nature and scope of the investigation that is to be made by the Collectors in making and revising settlements. The first paragraph of clause (1) lays a duty on the Collectors and other officers on the occasion of making or revising settlements of land revenue to unite, with the adjustment of the assessment and the investigation of the extent and produce of the lands, the object of ascertaining and recording the fullest possible information in regard to landed tenures, the rights, interest and privileges of the various classes of the agricultural community. For this purpose, their proceedings shall embrace the formation of as accurate a record as possible of all local usages connected with landed tenures, as full as practicable a specification of all persons enjoying the possession and property of the soil. . . . care being taken to distinguish the different modes of possession and property. . . more especially where several persons may hold interest in the subject-matter of different kinds or degrees. The details of the records that have to be prepared where the pattidari of bhaiyachara system of tenure prevail in the locality are then set out in the paragraph that follows. It is next said that A record shall likewise be formed of the rates per bigha of each description of land kind of produce demandable from the resident cultivators not claiming any transferable property in the soil, whether possessing the right of occupancy or not. The only other material provision in this clause is contained in the last paragraph which runs as follows : The information collected on the above points shall be so arranged and recorded as to admit of an immediate reference hereafter by the Courts of Judicature, it being understood and declared that all decisions on the demands of the zamindars shall hereafter be regulated by the rates of rent and modes of payment avowed and ascertained at the settlement, and recorded in the Collectors proceedings until distinctly altered by mutual agreement or after full investigation in a regular suit.73. The High Court is of opinion that the provisions of sec. 9 of the Regulation taken along with what is said in the preamble would definitely show that the duties of the Collector under the Regulation are not merely to ascertain and record existing rights with a view to ascertaining the assets for the purpose of fixing the revenue but also to fix and determine rents payable by under tenants and that subject to a right of suit in a Civil Court, the decision of the revenue authorities on these matters is final. I do not think that this is the proper view to take on the language of the section.74. Regulation VII of 1822 is an enactment relating to settlement of land revenue and not to settlement of rent. Unlike the rent Acts of late years, it does not purport to regulate the relation between landlord and tenant and does not lay down the conditions under which rents could be enhanced. The record-of-rights that has got to be prepared under the provisions of this Regulation is solely for the purpose of revenue settlement. Instead of proceeding to an estimated lump sum settlement. Instead of proceeding to an estimated lump sum settlement without a survey and enquiry into details as was done in 1793, it directs a survey and enquiry into the rights in every village and field for the purpose of determining the net rental or produce of the land on the basis of which revenue could be assessed. The different kinds of interests in the lands are recorded with a view to enable the authorities to decide with whom the settlement should be made and it affords protection also to the holders of these interests with whom no revenue engagement is made. The Revenue Officer has undoubtedly to record the rates of rent of each description of land in the village or the shares of produce demandable from the cultivators; but there are rates at which rents are actually paid or crops are delivered by the tenants. There are no words in the Regulation as we find in the later rent laws which entitled the Settlement Officer to fix and settle rents payable by tenants is excess of what was actually paid and that, in spite of any contract to the contrary existing between the landlord and the tenant. The learned Judges of the High Court laid stress on the passage in the preamble to the Regulation which speaks of ascertaining, settling and recording the rights, interest and privileges and different classes or persons by the Collectors and also on the last paragraph of clause (1) of sec. 9 which says inter alia that all decisions on the demands of the Zemindar shall hereafter be regulated by the rates of rent and modes of payment avowed and ascertained at the settlement, and recorded in the Collectors proceedings until distinctly altered by mutual agreement, or after full investigation in a regular suit. These words, in my opinion, show that the Collector is to settle and ascertain the existing rates and record them in his proceedings. The word settling implies the idea of removing doubts and placing things in a secure and undisputed position, and ascertaining might involve determination of what was indeterminate before. There may be doubts or uncertainty regarding the rates at which rents are actually paid for particular classes of land in particular villages and at the time when the Regulation was passed contractual rent was practically unknown, the payment of rent being regulated by Pargunah or customary rates. It may be, that neither the landlord nor the tenant was willing to help the Settlement authorities and acquaint them with the real state of affairs. In such circumstances, it would be the duty of the officer to make investigation and the findings arrived at by him on a result of the investigation would form part of his record. The rights thus ascertained would be taken by courts of Law to be correct and they shall be bound to decide any dispute between the parties on the basis thereof unless the record is altered by mutual agreement or by judicial pronouncement in a regularly instituted suit.75. That this is the correct view of the powers of the Settlement authorities acting under Regulation VII of 1822 would be clear when we look to the subsequent rent legislation in Bengal. In Bengal Act X of 1859, which was the first attempt to codify the law relating to agricultural tenancies in Bengal, definite provisions were made specifying the grounds upon which alone landlords could claim enhancement of rents paid by the tenants (vide sec. 17). Identical provisions are to be found in Bengal Act VIII of 1869 (vide sec. 18) by which the procedure in suits between landlord and tenant was amended and rent suits which were triable by Collectors under Act X of 1859 were made cognisable exclusively by Civil Courts. In 1878, an Act was passed (Act III of 1878) which laid down in clear terms that in settlement proceedings under Regulation VII of 1822 no rent shall be recorded higher than the rent previously payable by the tenants except on some one or more of the grounds specified in sec. 17 of Act X of 1859 or sec. 18 of Act VIII of 1869. It appears that the passing of this Act was necessitated by the fact that the Settlement authorities acting under Regulation VII of 1822 had in some instances erroneously undertaken to settle fair and equitable rent thereby enhanced the rent payable by the tenants, Sec. 3 of this Act provides that these enhanced rents recorded by the Settlement Officer shall be presumed to be valid unless the contrary is proved. But in order that validity may attach to rents thus recorded, it is necessary that a notice of enhancement should be served on each rayat or a jummabandi published under sec. 4; and sec. 5 requires that the grounds of enhancement shall be specified in any such notice or jummabandi. The tenant is given the right under the proviso to sec. 3 to institute a suit contesting his liability to pay the enhanced rent within three months from the date of the service of such notice. This shows that the legislature never contemplated that the Settlement Officer could alter and enhance the existing rents in a proceeding under Regulation VII of 1822. Powers were given to such officer to do so by this Act when specific grounds existed as contemplated by the rent Acts of 1859 and 1869 and the procedure indicated in it was followed. This Act did not, it seems, work satisfactorily and in the next year it was repealed and substituted by another Act which is known as the Bengal Rent Settlement Act (Act VIII of 1879) which made clear and specific provisions under which a Settlement Officer, in course of a proceeding for settlement of land revenue, could increase the existing rents paid by tenants and make such enhancement binding upon them. The grounds on which such rents could be enhanced are stated in sec. 6 and the rules for the determination of rent are elaborated in sec. 7. Sec. 10 provides that every tenant and rayat shall be liable to pay the rent recorded as demandable from him under this Act unless it shall be proved in any suit instituted by such undertenant or rayat to contest his liability to pay the same, that such rent has not been assessed in accordance with the provisions of the Act. It is to be noted that there was no provision in this Act under which the Settlement Officer could ignore any contract between the parties in the matter of settlement of rent and in the case of Prionath Das v. Ram Taran Chatterji, which was a case where rent was settled under this Act, the Privy Council held that if the landlord who granted the lease himself took revenue settlement of the estate, he could not demand rent in contravention of the terms of the contract even though such rent was fixed by the Settlement Officer. The Bengal Rent Settlement Act has been repealed, so far as Bengal is concerned, by the Bengal Tenancy Act of 1885 and Chapter X Part II of the Bengal Tenancy Act with the modification introduced since then, now contains the law relating to settlement of fair and equitable rent by revenue officers for all classes of tenants when settlement of land revenue is being or is about to be made and there is an express provision in this Act under which the Revenue authorities can ignore a contract between the parties if the contract was entered into subsequent to the passing of the Act.76. Mr. Chakravarty argues that the provisions in the Bengal Tenancy Act relating to settlement of fair and equitable rent by revenue officers must certainly be taken to be the law at the present day so far as the agricultural tenancies are concerned, and the provisions of Regulation VII of 1822 must, to that extent, be deemed to have been impliedly repealed and substituted by those of the Bengal Tenancy Act. It is said, however, that the Bengal Tenancy Act does not apply to non- agricultural tenancies and as regards fixing of rents for non- agricultural lands the provisions have still to be found in Regulation VII of 1822, no provision being made for them in any of the rent Acts. This contention is unsound and cannot be accepted. As has been said already, Regulation VII of 1822 empowers the revenue officers only to record existing rents. In order that the revenue officer might settle rents and enhance then when grounds of enhancement did exist, definite provisions were made in the various rent Acts and definite procedure was laid down in each of them which had to be scrupulously followed before such determination could be binding on the tenant. It is true that neither the Bengal Tenancy Act nor any of the preceding rent Acts applies to non-agricultural lands and the conclusion, I think, must be that with regard to these lands the legislature intended that the rent should be regulated exclusively by contract between the parties, obviously for the reason that non-agricultural tenants do not require that protection which the law thinks proper to give to agricultural tenants in rural Bengal. There may certainly be both agricultural and non-agricultural lands within an estate which is the subject-matter of revenue settlement. The revenue officer would have to assess revenue on the basis of rents payable by the non-agricultural tenants also, which may or may not be the same which the tenants are actually paying. But the tenants could not be compelled in law to pay such rent which the revenue officer determines for revenue purposes and as between the landlord and the tenant the rent payable would be fixed exclusively by agreement between the parties. In my opinion, therefore, the long string of decisions referred to in the judgment appealed from did interpret the provisions of Regulation VII of 1822 quite correctly and the law laid down there is perfectly should and should not be departed from.Act XXXI of 1858 was introduced for removing doubts which were felt by the revenue authorities respecting the proper course to be followed in the settlement of land added by alluvial accession to estates paying revenue to Government. Under Regulation XI 1825 whenever land is gained by gradual accession, whether from the recess of a river or of the sea, it shall be considered an increment to the estate or tenure to which it is attached. The proprietor of the estate, however, can be assessed to additional revenue for the added land and the tenant to whose tenancy it is an increment, is liable to pay additional rent for it. Act XXXI of 1858 is a small Act of two sections. The first section lays down the two alternative courses open to the revenue authorities while making settlement of the alluvial lands. The revenue assessed on the alluvial lands may be added to the jumma of the original estate or a new estate may be formed out of the added lands which is to be treated as a separate estate, no matter whether it is settled with the original proprietor or let in farm. Section 2, so far as is material for our present purposeThus in making the revenue settlement of the alluvial lands the Settlement Officer has got to prepare a record-of-rights in accordance with the provisions of Regulation VII of 1822. He is to ascertain and record the rights in exactly the same way as is contemplated by the Regulation. The additional thing that is necessary under the section is that he must determine whether any and what additional rent shall be payable in respect of the alluvial land by the person or persons entitled to an under-tenure in the original estate. It is to be noticed that this clause speaks not of enhanced rent but of additional rent which is to be determined in respect of the additional area attached to the original tenancy of the under-tenure holder by alluvial process and with regard to which presumably no rent could have been paid till then. To evaluate the assets for purposes of fixing the revenue, the revenue officer has undoubtedly to fix additional rental for these additional lands but there is nothing in the section which makes such determination legally binding on the enforceable against the tenant. The Act which is in the nature of a supplementary legislation does not lay down any procedure for settlement of fair rent for the additional lands in a manner which would make it binding upon the tenants. The position, therefore, is that the determination of additional rent as contemplated by section 2 of Act XXXI of 1858 is only for revenue purposes and it does not create any legal obligation vis-a-vis the landlord and the tenant. In the absence of any agreement between the landlord and the tenant relating to the rent for the additional lands, the proper procedure for determination of such rent, which would be binding on the tenant, would be by way of suit under section 52 of the Bengal Tenancy Act where that Act is applicable. On this point again I am of opinion that the case of Dhirendra Chandra Rai v. Nawab Khaja Habibullah, was rightly decided and the learned Judges of the High Court were wrong in holding that this decision was unsound.79. It is true that a presumption of validity attaches to the record of the Collector under the provision of section 9 of Regulation VII of 1822 and Courts of Law are bound to act upon them till they are altered or held to be incorrect; but this presumption, in my opinion, will arise only when the Revenue Officer purports to record existing rights. If the officer arrogates to himself the authority to determine what the proper rent should be and not merely what it actually is, he would be acting beyond his powers as conferred by the Regulation and settlement of rent made by him would not be binding on Courts of Law and would not have to be set aside by a regular suit. It appears from the record of the Settlement Officer in the present case that he was assuming that he had jurisdiction to alter rents and the expressed opinion that the existing rents paid for the non-agricultural lands by the mill companies were sufficiently high. He took an average of these rates and settled that as rent for the current period80. Without accepting the correctness of this argument, but assuming it to be sound, it seems to me that the propriety of the entry relating to rent which has been recorded by the Settlement Officer and which has only a presumptive value, can be challenged in this very suit where the landlord has made a claim for rent on the basis of such an entry. The expression regular suit as used the Regulation VII of 1822 means, in my opinion, a suit in a Civil Court which is decided not summarily but after proper investigation by the Judge himself. The word regular implies that the proceeding is not a summary one. Various provisions are to be found in the Regulation, according to which decisions in summary proceedings could be set aside or contested in regular suits. Under the Regulations which were in force previous to 1822, the rent suits were triable by Civil Courts of Zilla Judges though in certain matters relating to distraint and other things the Judge could act summarily on reports given by the Collectors. Under Regulation VII of 1831 summary suits for rents could be brought before a Collector of Revenue and his decision was final subject to the right of the aggrieved party to bring a regular suit contesting its validity in a Civil Court. Under Act X of 1859, exclusive jurisdiction in rent suits was given to the Collectors but this was again taken away and restored to Civil Courts by Act VIII of 1869. There is no doubt in my mind that the rent suit, which has been brought in the Court of the Subordinate Judge in the present case, would answer to the description of a regular suit as given in the Regulation, and it seems to me that it is open to the defendant to challenge the validity of the entry relating to rent as settled by the Revenue Officer by way of defence in this suit. The language of section 9 of Regulation VII of 1822 does not warrant the conclusion that the party aggrieved by the entry must have to bring a suit as plaintiff and could not challenge the validity of the same by way of defence in a suit instituted against him by the other side in whose favour the entry stands, nor does it prescribe any period of time within which the record must be challenged. There could be no question of limitation in a case like this, as the law of limitation bars a suit and not a defence.Under the Potta as stated already, the new accretions could be held by the lessees free of rent till they attained the level of the High land of the Potta as it existed in 1907. According to the trial Judge, this condition in the Potta was fulfilled and the Subordinate Judge is of opinion that the present level of the accreted land is much higher that that of the high land in 1907. On appeal this finding was reversed and it was held by the District Judge that the evidence adduced on this point on the plaintiffs side was thoroughly worthless. In my opinion, this is a finding of fact which would be binding on us particularly for the reason that it was not challenged before the High Court in second appeal. I am not much impressed by the argument of Mr. Chakravarty that in coming to this conclusion the District Judge misdirected himself on the question of onus of proof and laid the burden of proof wrongly on the Plaintiff. It was undoubtedly the defendants case in the written statement that under the terms of the Potta the suit lands could not be assessed to rent so long as they had not risen to the level of the high lands by natural processes. For the purpose of proving this, the defendant took out a commission for local investigation and besides the Commissioners report, there was oral evidence adduced on both sides. The trial Judge in deciding this point in favour of the plaintiff relied mainly on the evidence of the witnesses whom the plaintiff examined and he also made certain calculations of his own on the basis of certain facts disclosed by the Commissioners report and other materials on the record. The District Judge in reversing the findings of the trial court pronounced the evidence of the plaintiffs witness to be unworthy of credence and further held that the calculations of the trial Judge were based upon unreliable data. In a case like this, where evidence was adduced by both parties and where it could not be said that the evidence was evenly balanced, the question of onus is not at all material even if we assume that the onus really lay on the defendant. The strongest thing against the plaintiff is that he did not assail the findings of the District Judge before the High Court in second appeal and has not even taken this point in the statement of case lodged in this Court.82. I may mention here that if the condition in the Potta relating to the level of the accreted lands has actually been fulfilled, it would not only be not necessary for the Plaintiff but would be positively against his interest to claim rent on the basis of the C. S. Khatian. The Potta fixes the rate of Rs. 25 per bigha if and when the alluvial lands reached the height of the firm land; and if this required level has already been reached, then the claim should not have been Rs. 15 per bigha as has been settled by the Revenue Officer and claimed by the Plaintiff but Rs. 25 per bigha as the Potta itself lays down. Therefore, the entry in the C. S. Khatian regarding the rent payable for the lands in suit should be held to be wrong and the Plaintiff suit brought on the basis of that entry must fail.I agree with the view expressed by Mukherjea, J., that the expression regular suit as used in Regulation VII of 1882 means a suit which is not to be decided summarily but it to be decided by a competent civil court according to the procedure applicable to ordinary suits and is a suit in which the rights of the parties can be finally determined. As there is nothing in Regulation VII of 1882 or Act XXXI of 18558 to empower the settlement officer to ignore an existing contract between the parties as to rent, the entry in the settlement record which is contrary to the terms of such a contract must be held to be incorrect, and the contract between the parties, must be given effect to. The contract between the parties in this case was that new accretions would be held by the lessee free of rent till that attain the level of the high land originally settled under the patta as it existed in 1907. Whether the land in question has attained the level referred to in the contract is a question of fact and must be decided with reference to the finding of the learned District Judge who was the final court of appeal. That finding in my opinion though somewhat clumsily expressed, cannot be said to be not in accordance with law, and I do not agree with the learned Advocate for the respondent that the District Judge in arriving at it has misdirected himself on the question of onus of proof. | 1 | 1,162 | 4,799 | ### Instruction:
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the only questions which remain for decision by this Court are : (1) Whether the Collector, overriding the contract between the parties, had authority to fix the rent in respect of the alluvial lands, under Bengal Regulation VII of 1822 read with Bengal Alluvial Lands Settlement Act (Act XXXI of 1858); and ... (2) What is the effect of an entry made by the Collector under section 9 of Regulation VII of 1822 ? 3. As regards the first question, it seems to me that the whole scheme of Regulation VII of 1822 was ascertain facts, as it was found that the previous settlement of revenue was made on incorrect data. The regulation was therefore passed to enable the Collector and Revenue authorities to find out the actual rents received by the landlords and when it was not easy to ascertain the same to find out what was the customary rent in the locality. This appears to have been considered the proper data on which the revenue payable to Government could be more equitably fixed. Reading the Regulation as a whole, I do not think it empowers the Collector, when he finds a certain amount paid actually as rent, to fix - either a higher or a lower rent. His duty was merely to ascertain and not to fix any fair or equitable rent. Such construction put on the wording of section 9 of Regulation VII of 1822 in Ishur Chandra Sarkar v. Troylukhya Nath, and Jagadindra Nath Roy v. Mohendra Nath Moozumdar is correct. Act XXXI of 1858 is limited to alluvial lands and in section 2 thereof the word determine is used. As those lands came into existence for the first time, there could not be any previous rents in respect thereof. The word determine is, under the circumstances, appropriate to be used, although it does not empower the Collector to fix any other rent if some agreement in respect of such alluvial land found to exist. Section 2 of Act XXXI of 1858 does not expressly enlarge the powers of the Collector and read as a supplement to Regulation VII of 1822 does not enlarge the powers deemed to exist in the Collector in respect of the alluvial lands. The provisions in Regulation VII of 1822 relating to appeals etc., do not affect the powers of the Collector under section 9. In Kumar Chandra Singh Dudhoria v. Midnapore zamindary Co., although the newly formed alluvial land was treated as a separate estate under Act XXXI of 1858 the rent of the tenants was fixed under the Bengal Tenancy Act. In my opinion therefore, when an agreement in respect of rent as between a landlord and tenant exists, the Collector has no power under section 9 of Regulation VII of 1822 or under section 2 of Act XXXI of 1858 to fix (i.e., ascertain or determine) any other rent for the lands in question. Those sections define the limits of his jurisdiction and if he does anything beyond those limits his conclusion is not binding on the landlords or the tenant. 4. On the second question, the entry which the Collector is authorised to make, as a result of his enquiries, acquires a presumptive value of its correctness provided he has acted within the powers given to him by the Regulation. If however he has chosen to exceed those powers and fixed what he consider reasonable or fair rent (which is not the actual rent the tenant is under a contract to pay), in my opinion, the entry made in the record of rights in the excessive exercise of the Collectors powers has not the probative value given to it by the section. Assuming that an entry in fact is found in the regard of rights, at best it has a presumptive value and either party who is aggrieved is entitled to show that the entry is incorrect and is not made in the proper exercise of the powers of the Collector. This can be done, as stated in the section itself, in two ways : (1) by mutual agreement subsequently made between the parties; or (2) as a result of contest in a regular suit. The expression regular suit in the section is used in contrast to a summary suit or a revenue suit. It means a suit in a court having ordinary civil jurisdiction. In such a suit, the correctness or the binding nature of such an entry could be challenged either by the plaintiff filing a suit or by the defendant by way of defence. I do not think the words used in the section limit the right to challenge the entry only to the plaintiff. The section does not exclude the right of a defendant by way of defence to contest the accuracy of the entry. The effect of an entry made under Act XXXI of 1858 is not higher. It has the same probative value as an entry made under Regulation VII of 1822. 5. Under the circumstances, in my opinion, it was open to the Appellants to challenge the correctness of the entry and its binding nature on them in the suit filed by the respondent to recover rent from them. I find nothing in Regulation VII of 1822 or Act XXXI of 1858 to prevent such defence being raised. It may be notices that while the accuracy or binding nature of such an entry is contemplated to be contested in a regular suit, unlike provisions found in other Acts in similar circumstances no provision prescribing a time within such a suit has to be brought, is found in the Regulation. That supports the view that these objections could be raised by way of defence also. 6. In my opinion, the learned Judges who decided the appeal were in the error in disregarding the decision of their Court in Dhirendra Chandra Rai v. Nawab Khaja Habibulla. That case was decided on the correct interpretation of the relevant provisions of these two legislations.
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of 1869. There is no doubt in my mind that the rent suit, which has been brought in the Court of the Subordinate Judge in the present case, would answer to the description of a regular suit as given in the Regulation, and it seems to me that it is open to the defendant to challenge the validity of the entry relating to rent as settled by the Revenue Officer by way of defence in this suit. The language of section 9 of Regulation VII of 1822 does not warrant the conclusion that the party aggrieved by the entry must have to bring a suit as plaintiff and could not challenge the validity of the same by way of defence in a suit instituted against him by the other side in whose favour the entry stands, nor does it prescribe any period of time within which the record must be challenged. There could be no question of limitation in a case like this, as the law of limitation bars a suit and not a defence.Under the Potta as stated already, the new accretions could be held by the lessees free of rent till they attained the level of the High land of the Potta as it existed in 1907. According to the trial Judge, this condition in the Potta was fulfilled and the Subordinate Judge is of opinion that the present level of the accreted land is much higher that that of the high land in 1907. On appeal this finding was reversed and it was held by the District Judge that the evidence adduced on this point on the plaintiffs side was thoroughly worthless. In my opinion, this is a finding of fact which would be binding on us particularly for the reason that it was not challenged before the High Court in second appeal. I am not much impressed by the argument of Mr. Chakravarty that in coming to this conclusion the District Judge misdirected himself on the question of onus of proof and laid the burden of proof wrongly on the Plaintiff. It was undoubtedly the defendants case in the written statement that under the terms of the Potta the suit lands could not be assessed to rent so long as they had not risen to the level of the high lands by natural processes. For the purpose of proving this, the defendant took out a commission for local investigation and besides the Commissioners report, there was oral evidence adduced on both sides. The trial Judge in deciding this point in favour of the plaintiff relied mainly on the evidence of the witnesses whom the plaintiff examined and he also made certain calculations of his own on the basis of certain facts disclosed by the Commissioners report and other materials on the record. The District Judge in reversing the findings of the trial court pronounced the evidence of the plaintiffs witness to be unworthy of credence and further held that the calculations of the trial Judge were based upon unreliable data. In a case like this, where evidence was adduced by both parties and where it could not be said that the evidence was evenly balanced, the question of onus is not at all material even if we assume that the onus really lay on the defendant. The strongest thing against the plaintiff is that he did not assail the findings of the District Judge before the High Court in second appeal and has not even taken this point in the statement of case lodged in this Court.82. I may mention here that if the condition in the Potta relating to the level of the accreted lands has actually been fulfilled, it would not only be not necessary for the Plaintiff but would be positively against his interest to claim rent on the basis of the C. S. Khatian. The Potta fixes the rate of Rs. 25 per bigha if and when the alluvial lands reached the height of the firm land; and if this required level has already been reached, then the claim should not have been Rs. 15 per bigha as has been settled by the Revenue Officer and claimed by the Plaintiff but Rs. 25 per bigha as the Potta itself lays down. Therefore, the entry in the C. S. Khatian regarding the rent payable for the lands in suit should be held to be wrong and the Plaintiff suit brought on the basis of that entry must fail.I agree with the view expressed by Mukherjea, J., that the expression regular suit as used in Regulation VII of 1882 means a suit which is not to be decided summarily but it to be decided by a competent civil court according to the procedure applicable to ordinary suits and is a suit in which the rights of the parties can be finally determined. As there is nothing in Regulation VII of 1882 or Act XXXI of 18558 to empower the settlement officer to ignore an existing contract between the parties as to rent, the entry in the settlement record which is contrary to the terms of such a contract must be held to be incorrect, and the contract between the parties, must be given effect to. The contract between the parties in this case was that new accretions would be held by the lessee free of rent till that attain the level of the high land originally settled under the patta as it existed in 1907. Whether the land in question has attained the level referred to in the contract is a question of fact and must be decided with reference to the finding of the learned District Judge who was the final court of appeal. That finding in my opinion though somewhat clumsily expressed, cannot be said to be not in accordance with law, and I do not agree with the learned Advocate for the respondent that the District Judge in arriving at it has misdirected himself on the question of onus of proof.
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The Government of Andhra Pradesh & Others Vs. Ch. Gandhi | of the Indian Penal Code which was certainly a law in force at the time of the commission of the offence. The sentence of imprisonment which was imposed upon the appellant was certainly not greater than that permitted by S. 420. The sentence of fine also was not greater than that which might have been inflicted under the law which had been in force at the time of the commission of the offence, as a fine unlimited in extent could be imposed under the section.” 47. In Smt. Maya Rani Punj v. Commissioner of Income-tax, Delhi [AIR 1986 SC 293 ], a three-Judge Bench was dealing with the provisions of imposition of penalty under the Income-tax Act, 1961. The question before the Court was that under Section 28 of the Income-tax Act, 1922, the upper limit of penalty was provided and there was no prescription of any particular rate as confined under Section 271(1)(a) of the 1961 Act. The Court observed that the penalty contemplated in the respective sections of the two Acts is quasi-criminal in character. Reference was made to Article 20(1) of the Constitution and it was opined that under the said Article, no person is to be subjected to a penalty greater than which might have been inflicted under the law in force at the time of commission of the offence. The contention that the penalty should have been levied in accordance with Section 28 of the 1922 Act and not under Section 271(1)(a) of the 1961 Act was not accepted by the Court. The three-Judge Bench referred to the pronouncement in K. Satwant Singh (supra) and, eventually, after quoting a passage from there, observed as follows: - “It is conceded that under section 28 of the 1922 Act in the facts of the case a fine of more than Rs.4,060 (being within the limit of 1½ times of the tax amount) could have been levied. While conceding to that extent, Mr. Dholakia submits that the decision of the Constitution Bench of this Court in Satwant Singh’s case requires reconsideration as it has not taken into account the ratio of an important decision of the United States Supreme Court in the case of Elbert B. Lindsay v. State of Washington, (1937) 81 Law Ed 1182. We are bound by the decision of the Constitution Bench. It has held the field for a quarter of a century without challenge and non-consideration of an American decision which apparently was not than cited before this Court does not at all justify the submission at the Bar for a reconsideration of the decision of this Court in Satwant Singh’s case (AIR 1960 SC 266 ).” 48. In Tiwari Kanhaiyalal etc. v. The Commissioner of Income-tax, Delhi [AIR 1975 SC 902 ], while dealing with a penal provision under the Income-tax Act, 1922 and Income-tax Act, 1961 in the backdrop of clause (1) of Article 20 of the Constitution, this Court opined that the punishment provided under the 1961 Act being greater than the one engrafted under the provisions under the 1922 Act, the appellant therein was not entitled to press into the service the second part of clause (1) of Article 20 of the Constitution. 49. At this juncture, we may state that an ex post facto law may be retrospective, if it is ameliorative. But in the present context, delineation on the said score is not warranted. We confine our analysis pertaining to the vested or accrued right and imposition of higher punishment that was not permissible at the time of initiation of departmental proceeding. 50. In the case at hand, under the unamended rule, there were, apart from stoppage of increment with cumulative effect and reduction in rank, grade, post or service, three major punishments, namely, compulsory retirement, removal and dismissal from service by which there was severance of service. The maximum punishment that could have been imposed on an employee after conducting due departmental enquiry was dismissal from service. The rule making authority, by way of amendment, has bifurcated the rule 9(vii) into two parts, namely, 9(vii)(a) and 9(vii)(b). As is evincible, the charge-sheet only referred to the imposition of major penalty or to be dealt with under the said rules relating to major penalty. In this backdrop, it would be difficult to say that the employee had the vested right to be imposed a particular punishment as envisaged under the unamended rules. Once the charges have been proven, he could have been imposed the punishment of compulsory retirement or removal from service or dismissal from service. The rule making authority thought it apposite to amend the rules to introduce a different kind of punishment which is lesser than the maximum punishment or, for that matter, lesser punishment than that of compulsory retirement from service. The order of compulsory retirement is a lesser punishment than dismissal or removal as the pension of a compulsorily retired employee, if eligible to get pension under the Pension Rules, is not affected. Rule 9(vii) was only dealing with reduction or reversion but issuance of any other direction was not a part of it. It has come by way of amendment. The same being a lesser punishment than the maximum, in our considered opinion, is imposable and the disciplinary authority has not committed any error by imposing the said punishment, regard being had to the nature of charges. It can be looked from another angle. The rule making authority has splitted Rule 9(vii) into two parts – one is harsher than the other, but, both are less severe than the other punishments, namely, compulsory retirement, removal from service or dismissal. The reason behind it, as we perceive, is not to let off one with simple reduction but to give a direction about the condition of pay on restoration and also not to impose a harsher punishment which may not be proportionate. In our view, the same really does not affect any vested or accrued right. It also does not violate any Constitutional protection. | 1[ds]50. In the case at hand, under the unamended rule, there were, apart from stoppage of increment with cumulative effect and reduction in rank, grade, post or service, three major punishments, namely, compulsory retirement, removal and dismissal from service by which there was severance of service. The maximum punishment that could have been imposed on an employee after conducting due departmental enquiry was dismissal from service. The rule making authority, by way of amendment, has bifurcated the rule 9(vii) into two parts, namely, 9(vii)(a) and 9(vii)(b). As is evincible, theonly referred to the imposition of major penalty or to be dealt with under the said rules relating to major penalty. In this backdrop, it would be difficult to say that the employee had the vested right to be imposed a particular punishment as envisaged under the unamended rules. Once the charges have been proven, he could have been imposed the punishment of compulsory retirement or removal from service or dismissal from service. The rule making authority thought it apposite to amend the rules to introduce a different kind of punishment which is lesser than the maximum punishment or, for that matter, lesser punishment than that of compulsory retirement from service. The order of compulsory retirement is a lesser punishment than dismissal or removal as the pension of a compulsorily retired employee, if eligible to get pension under the Pension Rules, is not affected. Rule 9(vii) was only dealing with reduction or reversion but issuance of any other direction was not a part of it. It has come by way of amendment. The same being a lesser punishment than the maximum, in our considered opinion, is imposable and the disciplinary authority has not committed any error by imposing the said punishment, regard being had to the nature of charges. It can be looked from another angle. The rule making authority has splitted Rule 9(vii) into two parts – one is harsher than the other, but, both are less severe than the other punishments, namely, compulsory retirement, removal from service or dismissal. The reason behind it, as we perceive, is not to let off one with simple reduction but to give a direction about the condition of pay on restoration and also not to impose a harsher punishment which may not be proportionate. In our view, the same really does not affect any vested or accrued right. It also does not violate any Constitutional protection. | 1 | 10,225 | 476 | ### Instruction:
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of the Indian Penal Code which was certainly a law in force at the time of the commission of the offence. The sentence of imprisonment which was imposed upon the appellant was certainly not greater than that permitted by S. 420. The sentence of fine also was not greater than that which might have been inflicted under the law which had been in force at the time of the commission of the offence, as a fine unlimited in extent could be imposed under the section.” 47. In Smt. Maya Rani Punj v. Commissioner of Income-tax, Delhi [AIR 1986 SC 293 ], a three-Judge Bench was dealing with the provisions of imposition of penalty under the Income-tax Act, 1961. The question before the Court was that under Section 28 of the Income-tax Act, 1922, the upper limit of penalty was provided and there was no prescription of any particular rate as confined under Section 271(1)(a) of the 1961 Act. The Court observed that the penalty contemplated in the respective sections of the two Acts is quasi-criminal in character. Reference was made to Article 20(1) of the Constitution and it was opined that under the said Article, no person is to be subjected to a penalty greater than which might have been inflicted under the law in force at the time of commission of the offence. The contention that the penalty should have been levied in accordance with Section 28 of the 1922 Act and not under Section 271(1)(a) of the 1961 Act was not accepted by the Court. The three-Judge Bench referred to the pronouncement in K. Satwant Singh (supra) and, eventually, after quoting a passage from there, observed as follows: - “It is conceded that under section 28 of the 1922 Act in the facts of the case a fine of more than Rs.4,060 (being within the limit of 1½ times of the tax amount) could have been levied. While conceding to that extent, Mr. Dholakia submits that the decision of the Constitution Bench of this Court in Satwant Singh’s case requires reconsideration as it has not taken into account the ratio of an important decision of the United States Supreme Court in the case of Elbert B. Lindsay v. State of Washington, (1937) 81 Law Ed 1182. We are bound by the decision of the Constitution Bench. It has held the field for a quarter of a century without challenge and non-consideration of an American decision which apparently was not than cited before this Court does not at all justify the submission at the Bar for a reconsideration of the decision of this Court in Satwant Singh’s case (AIR 1960 SC 266 ).” 48. In Tiwari Kanhaiyalal etc. v. The Commissioner of Income-tax, Delhi [AIR 1975 SC 902 ], while dealing with a penal provision under the Income-tax Act, 1922 and Income-tax Act, 1961 in the backdrop of clause (1) of Article 20 of the Constitution, this Court opined that the punishment provided under the 1961 Act being greater than the one engrafted under the provisions under the 1922 Act, the appellant therein was not entitled to press into the service the second part of clause (1) of Article 20 of the Constitution. 49. At this juncture, we may state that an ex post facto law may be retrospective, if it is ameliorative. But in the present context, delineation on the said score is not warranted. We confine our analysis pertaining to the vested or accrued right and imposition of higher punishment that was not permissible at the time of initiation of departmental proceeding. 50. In the case at hand, under the unamended rule, there were, apart from stoppage of increment with cumulative effect and reduction in rank, grade, post or service, three major punishments, namely, compulsory retirement, removal and dismissal from service by which there was severance of service. The maximum punishment that could have been imposed on an employee after conducting due departmental enquiry was dismissal from service. The rule making authority, by way of amendment, has bifurcated the rule 9(vii) into two parts, namely, 9(vii)(a) and 9(vii)(b). As is evincible, the charge-sheet only referred to the imposition of major penalty or to be dealt with under the said rules relating to major penalty. In this backdrop, it would be difficult to say that the employee had the vested right to be imposed a particular punishment as envisaged under the unamended rules. Once the charges have been proven, he could have been imposed the punishment of compulsory retirement or removal from service or dismissal from service. The rule making authority thought it apposite to amend the rules to introduce a different kind of punishment which is lesser than the maximum punishment or, for that matter, lesser punishment than that of compulsory retirement from service. The order of compulsory retirement is a lesser punishment than dismissal or removal as the pension of a compulsorily retired employee, if eligible to get pension under the Pension Rules, is not affected. Rule 9(vii) was only dealing with reduction or reversion but issuance of any other direction was not a part of it. It has come by way of amendment. The same being a lesser punishment than the maximum, in our considered opinion, is imposable and the disciplinary authority has not committed any error by imposing the said punishment, regard being had to the nature of charges. It can be looked from another angle. The rule making authority has splitted Rule 9(vii) into two parts – one is harsher than the other, but, both are less severe than the other punishments, namely, compulsory retirement, removal from service or dismissal. The reason behind it, as we perceive, is not to let off one with simple reduction but to give a direction about the condition of pay on restoration and also not to impose a harsher punishment which may not be proportionate. In our view, the same really does not affect any vested or accrued right. It also does not violate any Constitutional protection.
### Response:
1
### Explanation:
50. In the case at hand, under the unamended rule, there were, apart from stoppage of increment with cumulative effect and reduction in rank, grade, post or service, three major punishments, namely, compulsory retirement, removal and dismissal from service by which there was severance of service. The maximum punishment that could have been imposed on an employee after conducting due departmental enquiry was dismissal from service. The rule making authority, by way of amendment, has bifurcated the rule 9(vii) into two parts, namely, 9(vii)(a) and 9(vii)(b). As is evincible, theonly referred to the imposition of major penalty or to be dealt with under the said rules relating to major penalty. In this backdrop, it would be difficult to say that the employee had the vested right to be imposed a particular punishment as envisaged under the unamended rules. Once the charges have been proven, he could have been imposed the punishment of compulsory retirement or removal from service or dismissal from service. The rule making authority thought it apposite to amend the rules to introduce a different kind of punishment which is lesser than the maximum punishment or, for that matter, lesser punishment than that of compulsory retirement from service. The order of compulsory retirement is a lesser punishment than dismissal or removal as the pension of a compulsorily retired employee, if eligible to get pension under the Pension Rules, is not affected. Rule 9(vii) was only dealing with reduction or reversion but issuance of any other direction was not a part of it. It has come by way of amendment. The same being a lesser punishment than the maximum, in our considered opinion, is imposable and the disciplinary authority has not committed any error by imposing the said punishment, regard being had to the nature of charges. It can be looked from another angle. The rule making authority has splitted Rule 9(vii) into two parts – one is harsher than the other, but, both are less severe than the other punishments, namely, compulsory retirement, removal from service or dismissal. The reason behind it, as we perceive, is not to let off one with simple reduction but to give a direction about the condition of pay on restoration and also not to impose a harsher punishment which may not be proportionate. In our view, the same really does not affect any vested or accrued right. It also does not violate any Constitutional protection.
|
Amrit Banaspati Co. Ltd. & Anr Vs. State Of Uttar Pradesh And Ors | rounding of the fractions, if any resulting from such application. When there is any law, contract or instrument a reference to any value expressed in terms of annas, pice or pies, by sub-sec. (3) the reference has to be construed as if the value is expressed in terms of new coins at the rates specified in subsection (2).19. Liability to pay an amount in one transaction ascertained in terms of new coins may be discharged under sub-sec. (2) by tender of annas, pice or pies according to the table of equivalence and the fractions may be rounded of. But in the ascertainment of liability under a transaction, sub-sec. (2) does not come into play. Liability under a transaction is ascertained under the general law, and sub-sec. (3) comes in aid as an interpretation clause when the value is expressed in some law, contract or instrument governing a transaction not in terms of new coins, but of annas, pice or pies. Subsec. (3) does not attract the rule of rounding of at the stage of discharge of liability under concrete transaction: it merely prescribes the value which shall be deemed to be substituted in any law, contract or instrument when the value is specified therein in terms of annas, pice or pies. It is attracted when liability declared in annas, pice or pies is to be ascertained in terms of new coins whereas sub-sec. (2) operates in considering whether a certain payment in annas, pice or pies discharges an ascertained liability.20. There is nothing in the statute which supports the view that what the Legislature intended by enacting sub-sec. (3) was computation of liability in terms of old coins and then conversion and rounding of the total liability in terms of new coins. To interpret cl: (3) in that manner would be to denude it of its true purpose as an interpretation clause, and to render it practically nugatory. If sub-sec.(3) is merely intended to serve as determinative of total liability under a transaction, the purpose is amply served by sub-sec. (2).21. The view I have expressed also finds support from a judgment of this Court in (1963) Supp 1 SCR 275 : (AIR 1963 SC 589 ). In that case, sales tax was imposed under the Mysore Sales Tax Act 6 of 1948 at the rate of three pies for every rupee of the turnover. On the application of S. 14 of the Indian Coinage (Amendment) Act, 1955, sales-tax leviable under the Mysore Sales Tax Act was computed at the rate of two new coins per rupee of the turnover, and a demand for Rs. 1,16,728.44 was made. The taxpayer contended that he was liable to pay Rs. 91,960/ - only being the amount of total tax liability computed at the rate of 3 pies per rupee of turnover. He challenged the additional demand by a petition in the High Court of Mysore on the plea that the Act which altered the incidence was a taxing measure and could only be enacted after complying with the provisions of Arts. 198, 199 and 207 of the Constitution relating to money bills, and the Mysore Existing Laws (Construction of Reference to Values) Act 12 of 1957 which gave effect to the amendment made by Act 31 of 1955, dealt with "coinage and legal tender", and was not within the competence of the State Legislature. In dealing with these contentions, this Court summarised the scheme of cls. (1), (2) and (3) of S. 14 and observed :"Sub-section (3) provides that all references under any enactment to annas, pice or pies have to be construed as reference to the new coin referred to in sub-sec.(1). In other words, wherever the old legal tender i. e., annas, pice and pies is mentioned in an enactment it is to be converted into naya Paisas and the naya Paisas are to be substituted in place of the old legal tender calculated in the manner laid down in sub-section (2)."The Court rejected the claim of the tax-payer that he was liable to pay tax computed at the rate of three pies per rupee only. If sub-sec. (3) of S. 14 was susceptible of the interpretation submitted on behalf of the State of Uttar Pradesh, it was wholly unnecessary to enter upon the question of the vires of the provisions, because between the computation of sales-tax on a total turnover of Rs. 58,36,422.25 nPs. at 2 naye Paise, and at the rate of 3 pies per rupee in the manner suggested, there would have resulted no discrepancy at all, and the contention of the tax-payer that he was liable to pay Rs. 91,690/-had to be accepted. But this Court upheld the claim of the Sales Tax Department that the computation had to be made by substituting two naye paise in the section of the Mysore Sales Tax Act, which imposed liability for payment of tax, and the total demand for tax computed on the footing of that substitution was properly made. If the interpretation which is now suggested on behalf of the State be accepted, the assessee in Mangalore Ganesh Beedi Workss case, 1963 Supp 1 SCR 275 : (AIR 1963 SC 589 ) was bound to succeed.22. In the present case by the notification issued on March 31, 1956, the liability for payment of sales-tax was to be computed at the rate of one anna in a rupee of the turnover. By virtue of S. 14(3) of the Inidan Coinage Act, for an anna mentioned in the notification consequently, "interest on securities" which is the substituted rate of involved a fraction by the process of rounding of at the rate specified in sub-sec. (2), the fraction of new coins will be omitted and the nearest new coins i. e., six new coins will be deemed to be substituted in the statute. Liability for sales tax after the amendment of the Coinage Act will, therefore, be at the rate of 6 new coins for every rupee of sale price. | 0[ds]8. It is therefore clear that the provisions of sub-s. (2) provide for the conversion of old coins into new at the time of payment or of accounting, and then too for the conversion of the old coins within the limit of the extent to which they are legal tender, which means that one cannot insist on paying a total sum of several rupees in naye paise calculated in the manner laid down in sub-s. (2) of S. 14 and that two, factors affect the determination of the number of naye paise equivalent in value to the value of the old coin of annas, pice or pies tendered, the two factors being the rate specified and the artificial way of calculation. The result of the artificial way of calculation is that sometimes equivalent number of naye paise is less than the actual value of the old coins at the specified rate and sometime it is higher, the difference being, however, very small.The legislature could not have intended, by the provisions of sub-s. (3), that a mere provision for working out the values in old coins into values in new coins should provide scope for such huge variations in the actual amounts to be paid or received. The process of conversion is not meant or designed to be a process for gaining more or less than what is rightfully due under a provision of law or under any contractual term. The conversion is a simple process necessitated by the exigency of payment to be in currency different from the one in which the payment was to be.12. We are therefore of opinion that what sub-s. (3) of S. 14 requires is that references to any value expressed in annas, pice and pies will be construed to such values expressed in new coins which would be absolutely equivalent to the value of the old coins when their value is converted at the rate of 16 annas, 64 pice and 192 pies to 100 nayeis place on the last sentence but this cannot be taken as the decision of the Court on the question that sub-s. (3) of S.14 made reference not only to the rate of conversion but also to the mode of calculation, as that question had not been considered in any manner. The last sentence was a sort of a paraphrase of what had been said earlier in the quotation with respect to the provisions of sub-s. (3). This is clear from the facts that the provisions of sub-s. (3) have not been stated in full, and have been referred to up to the stage of references to the new coin referred to in sub-s. (1) and that the last portion of the provisions of sub-s. (3) i. e. converted thereto at the rate specified in sub-s. (2) has not been mentioned. Ii is thus that the latter part of the observations happened to refer to the method of calculation and not to the rate specified in subs. (2). The Court was, at the time, thinking of the value of 3 pies in terms of naya paise as calculated according to the provisions of subs. (2), there being no contest before it that the value substituted to the equivalent of 3 pies for assessing the tax was not a correct value for substitution in place of 3 pies. We therefore do not construe the expression relied upon by learned counsel for the appellant to be a decision of the Court on the construction of the provisions of sub-s. (3) of S. 14 and are therefore of opinion that the observations in that case cannot be taken to be a decision of this Court on the actual point for determination now before us.16. We therefore hold that the High Court is right in construing the provisions of sub-s.(3) of S. 14 of the Indian Coinage Act to mean that references to values in any enactment, notification, rule or order under any enactment or in any contract, deed or instrument, expressed in old coins should be construed to be references to values expressed in new coins by converting the old values at the rate of 16 annas, 64 pice and 192 pies to 100 naya paise. | 0 | 6,864 | 776 | ### Instruction:
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rounding of the fractions, if any resulting from such application. When there is any law, contract or instrument a reference to any value expressed in terms of annas, pice or pies, by sub-sec. (3) the reference has to be construed as if the value is expressed in terms of new coins at the rates specified in subsection (2).19. Liability to pay an amount in one transaction ascertained in terms of new coins may be discharged under sub-sec. (2) by tender of annas, pice or pies according to the table of equivalence and the fractions may be rounded of. But in the ascertainment of liability under a transaction, sub-sec. (2) does not come into play. Liability under a transaction is ascertained under the general law, and sub-sec. (3) comes in aid as an interpretation clause when the value is expressed in some law, contract or instrument governing a transaction not in terms of new coins, but of annas, pice or pies. Subsec. (3) does not attract the rule of rounding of at the stage of discharge of liability under concrete transaction: it merely prescribes the value which shall be deemed to be substituted in any law, contract or instrument when the value is specified therein in terms of annas, pice or pies. It is attracted when liability declared in annas, pice or pies is to be ascertained in terms of new coins whereas sub-sec. (2) operates in considering whether a certain payment in annas, pice or pies discharges an ascertained liability.20. There is nothing in the statute which supports the view that what the Legislature intended by enacting sub-sec. (3) was computation of liability in terms of old coins and then conversion and rounding of the total liability in terms of new coins. To interpret cl: (3) in that manner would be to denude it of its true purpose as an interpretation clause, and to render it practically nugatory. If sub-sec.(3) is merely intended to serve as determinative of total liability under a transaction, the purpose is amply served by sub-sec. (2).21. The view I have expressed also finds support from a judgment of this Court in (1963) Supp 1 SCR 275 : (AIR 1963 SC 589 ). In that case, sales tax was imposed under the Mysore Sales Tax Act 6 of 1948 at the rate of three pies for every rupee of the turnover. On the application of S. 14 of the Indian Coinage (Amendment) Act, 1955, sales-tax leviable under the Mysore Sales Tax Act was computed at the rate of two new coins per rupee of the turnover, and a demand for Rs. 1,16,728.44 was made. The taxpayer contended that he was liable to pay Rs. 91,960/ - only being the amount of total tax liability computed at the rate of 3 pies per rupee of turnover. He challenged the additional demand by a petition in the High Court of Mysore on the plea that the Act which altered the incidence was a taxing measure and could only be enacted after complying with the provisions of Arts. 198, 199 and 207 of the Constitution relating to money bills, and the Mysore Existing Laws (Construction of Reference to Values) Act 12 of 1957 which gave effect to the amendment made by Act 31 of 1955, dealt with "coinage and legal tender", and was not within the competence of the State Legislature. In dealing with these contentions, this Court summarised the scheme of cls. (1), (2) and (3) of S. 14 and observed :"Sub-section (3) provides that all references under any enactment to annas, pice or pies have to be construed as reference to the new coin referred to in sub-sec.(1). In other words, wherever the old legal tender i. e., annas, pice and pies is mentioned in an enactment it is to be converted into naya Paisas and the naya Paisas are to be substituted in place of the old legal tender calculated in the manner laid down in sub-section (2)."The Court rejected the claim of the tax-payer that he was liable to pay tax computed at the rate of three pies per rupee only. If sub-sec. (3) of S. 14 was susceptible of the interpretation submitted on behalf of the State of Uttar Pradesh, it was wholly unnecessary to enter upon the question of the vires of the provisions, because between the computation of sales-tax on a total turnover of Rs. 58,36,422.25 nPs. at 2 naye Paise, and at the rate of 3 pies per rupee in the manner suggested, there would have resulted no discrepancy at all, and the contention of the tax-payer that he was liable to pay Rs. 91,690/-had to be accepted. But this Court upheld the claim of the Sales Tax Department that the computation had to be made by substituting two naye paise in the section of the Mysore Sales Tax Act, which imposed liability for payment of tax, and the total demand for tax computed on the footing of that substitution was properly made. If the interpretation which is now suggested on behalf of the State be accepted, the assessee in Mangalore Ganesh Beedi Workss case, 1963 Supp 1 SCR 275 : (AIR 1963 SC 589 ) was bound to succeed.22. In the present case by the notification issued on March 31, 1956, the liability for payment of sales-tax was to be computed at the rate of one anna in a rupee of the turnover. By virtue of S. 14(3) of the Inidan Coinage Act, for an anna mentioned in the notification consequently, "interest on securities" which is the substituted rate of involved a fraction by the process of rounding of at the rate specified in sub-sec. (2), the fraction of new coins will be omitted and the nearest new coins i. e., six new coins will be deemed to be substituted in the statute. Liability for sales tax after the amendment of the Coinage Act will, therefore, be at the rate of 6 new coins for every rupee of sale price.
### Response:
0
### Explanation:
8. It is therefore clear that the provisions of sub-s. (2) provide for the conversion of old coins into new at the time of payment or of accounting, and then too for the conversion of the old coins within the limit of the extent to which they are legal tender, which means that one cannot insist on paying a total sum of several rupees in naye paise calculated in the manner laid down in sub-s. (2) of S. 14 and that two, factors affect the determination of the number of naye paise equivalent in value to the value of the old coin of annas, pice or pies tendered, the two factors being the rate specified and the artificial way of calculation. The result of the artificial way of calculation is that sometimes equivalent number of naye paise is less than the actual value of the old coins at the specified rate and sometime it is higher, the difference being, however, very small.The legislature could not have intended, by the provisions of sub-s. (3), that a mere provision for working out the values in old coins into values in new coins should provide scope for such huge variations in the actual amounts to be paid or received. The process of conversion is not meant or designed to be a process for gaining more or less than what is rightfully due under a provision of law or under any contractual term. The conversion is a simple process necessitated by the exigency of payment to be in currency different from the one in which the payment was to be.12. We are therefore of opinion that what sub-s. (3) of S. 14 requires is that references to any value expressed in annas, pice and pies will be construed to such values expressed in new coins which would be absolutely equivalent to the value of the old coins when their value is converted at the rate of 16 annas, 64 pice and 192 pies to 100 nayeis place on the last sentence but this cannot be taken as the decision of the Court on the question that sub-s. (3) of S.14 made reference not only to the rate of conversion but also to the mode of calculation, as that question had not been considered in any manner. The last sentence was a sort of a paraphrase of what had been said earlier in the quotation with respect to the provisions of sub-s. (3). This is clear from the facts that the provisions of sub-s. (3) have not been stated in full, and have been referred to up to the stage of references to the new coin referred to in sub-s. (1) and that the last portion of the provisions of sub-s. (3) i. e. converted thereto at the rate specified in sub-s. (2) has not been mentioned. Ii is thus that the latter part of the observations happened to refer to the method of calculation and not to the rate specified in subs. (2). The Court was, at the time, thinking of the value of 3 pies in terms of naya paise as calculated according to the provisions of subs. (2), there being no contest before it that the value substituted to the equivalent of 3 pies for assessing the tax was not a correct value for substitution in place of 3 pies. We therefore do not construe the expression relied upon by learned counsel for the appellant to be a decision of the Court on the construction of the provisions of sub-s. (3) of S. 14 and are therefore of opinion that the observations in that case cannot be taken to be a decision of this Court on the actual point for determination now before us.16. We therefore hold that the High Court is right in construing the provisions of sub-s.(3) of S. 14 of the Indian Coinage Act to mean that references to values in any enactment, notification, rule or order under any enactment or in any contract, deed or instrument, expressed in old coins should be construed to be references to values expressed in new coins by converting the old values at the rate of 16 annas, 64 pice and 192 pies to 100 naya paise.
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Agra Electric Supply Co. Ltd Vs. Sri Alladin & Ors | was made and disposed of, a factor making it doubtful the application of a principle such as res judicata.11. The second question relates to the workman, Shameem Khan. The company appointed him under a letter of appointment dated December 2, 1965 to the post of a clearer as a probationer for 6 months with discretion to the resident engineer to extend that period. The letter also stated that during his probationary period his service would be liable to termination without any notice and without assigning any reason therefor and that he would not be deemed to have been confirmed automatically in the post on the expiry of the probation period unless so advised in writing. The workman worked as such probationer till February 28, 1966 when he was served with a memorandum that his service was terminated as from the close of that day.12. The workman s case was that the company had no right to terminate his service before the expiry of the 6 months period of probation which is the period prescribed by standing order 2 (c), that the stipulation in the letter of appointment that his service was liable to termination during the probation period was contrary to that standing order, and that therefore, that stipulation was not valid, and lastly, that the said order, though apparently one of termination simpliciter, was not a bona fide order, was in truth punitive in nature, and therefore, could not be passed without an opportunity of being heard having been given to him in a properly held enquiry. The fact is that no such enquiry was held and no opportunity was given to the workman to explain any misconduct for which he could be removed or dismissed.13. The evidence before the Labour Court was that the concerned workman had unauthorisedly used the motor-cycle belonging to one Sidhana, a shift engineer in the company and that the motor-cycle met with an accident while the workman was using it causing damage to it. Three days after that accident a report alleging that his work as a probationer was unsatisfactory was made by his superior officer. On this evidence the Tribunal came to the conclusion that the impugned order was not an order of termination simpliciter, that though couched in that language it was passed as a punishment for the workman having used that vehicle without the consent of its owner and was, therefore, an order of dismisal. The Tribunal was also of the opinion that the said report alleging unsatisfactory work by the workman was colourable and made at the instance of the shift engineer or at any rate was inspired by the said incident. In this view the Labour Court held that the exercise of power to terminate the service of the workman was not bona fide and consequently it set aside that order and directed his reinstatement.14. Now, it is a well settled principle of industrial adjudication that even if an impugned order is worded in the language of a simple termination of service, industrial tribunal can look into the facts and circumstances of the case to ascertain if it was passed in colourable exercise of the power of the management to terminate the service of an employee and find out whether it was in fact passed with a view to punish him.The letter of appointment clearly states that the workman, Shameem Khan, was appointed as a probationer for a period of 6 months with power to the resident engineer to extend the period of probation. Ordinarily, that would mean that at the end of the probation period the company would have to decide whether to confirm him to a permanent post or, if that is not possible, to terminate his service.Standing Order 2 (c) provides that a probationer is an employee who is provisionally employed to fill a permanent vacancy in a post and who has not completed the period of probation thereunder. It also lays down that the normal period of probation shall be 6 months but the resident engineer has the discretion to extend that period, the maximum period of probation being 12 months in all. Ordinarily, this would mean that a probationer s service cannot be terminated except for some misconduct until the expiry of the probation period.The letter of appointment, no doubt, contained a provision that the service of the workman was liable to termination even during the probationary period. That provision, however, must be read to mean that the appointment was subject to the management s power of termination as provided in the standing orders. Standing Order 14 provides for such a power and lays down that the service of "any employee" (which expression includes a probationer as is clear from the classification of employees in standing order 2 can be terminated on grounds (a) to (f) therein set out. It is quite clear that the termination of service of the concerned workman cannot be attributed to any one of these grounds. Therefore, that order cannot be said to have been passed in conformity with the power to terminate his service under the standing orders.15. But apart from this consideration, the Labour Court came to a finding on the evidence before it that the real reason for passing the impugned order was not the alleged unsatisfactory work on the part of the workman but his having unauthorisedly used the motor-cycle and causing damage to it, that the order was punitive and not a simple termination of service and was therefore in colourable exercise of the power of termination. This finding is clearly one of fact and meant that the Labour Court rejected the evidence led by the management that the work of the concerned workman was found unsatisfactory. It is impossible to say from the evidence before the Labour Court that that finding was perverse or such as could not be reasonably arrived at. In that view, it is impossible to interfere with the order of the Labour Court relating to workman, Shameem Khan. | 1[ds]4. The question as to whether standing orders were retrospective in their application can obviously arise only if they do not in law bind workmen previously employed. Such a question can hardly arise if the provisions of the Act show, as contended by counsel for the company, that once they are certified and come into force, they bind both the employer and all the workmen presentlydo away with such diversity and bargaining with each individual workman, the legislature provided by Section 3 of the Act that every employer of an industrial establishment must, within 6 months from the date of the Act becoming applicable to his industrial establishment, submit to the certifying authority under the Act draft standing orders prefered by him for adoption in his industrial establishment providing therein for all matters set out in the Schedule to the Act, and where model standing orders are prescribed to have such draft standing orders in conformity with them. The draft standing orders are to be accompanied by particulars of workmen employed in the establishment as also the name of the union, if any, to which they belong. This requirement clearly means particulars of the workmen in employment at the date of the submission of the draft standing orders for certification and not those only who would be employed in future after certification. Under Section 4, such draft orders are certifiable if they provide for all matters set out in the Schedule, are otherwise in conformity with the Act and are adjudicated as fair and reasonable by the certifying officer or the appellate authority. Section 5 requires the certifying officer to forward a copy of the draft standing orders to the union or in its absence to workmen in the prescribed manner with a notice requiring objections, if any from the workmen. After giving the employer and the union or the workmen s representatives an opportunity of being heard, the certifying officer has to decide whether or not any modification or addition to the draft submitted by the employer is necessary and then certify the draft standing orders and send copies thereof and of his order in that behalf to the employer, the union or the representatives of the workmen. Section 6 confers the right of appeal to any person aggrieved by such order to the appellate authority, who, by his order, can either confirm or amend the standing orders. Under Section 7 such standing orders are to come into operation on the expiry of 30 days from the date on which their authenticated copies are sent by the certifying officer to the parties where no appeal against these orders is filed or where such appeal is filed on expiry of 7 days from the date on which copies of the appellate authority s orders are sent as required by Section 6 (2). Section 9 requires the employer to post the standing orders as finally certified on boards maintained for that purpose at or near the entrance through which the majority of workmen enter the industrial establishment and in all departments thereof. Section 10 confers the right to an employer or any of the workmen to apply for modification after expiry of 6 months from the date on which they or the last modification thereof came into operation. The Schedule to the Act sets out matters which the standing orders must provide for. These matters are classification of workmen, shift working, periods and hours of work, holidays, pay days, wage rates, conditions and procedure for applying for grant of leaves, closing and reopening of sections of the industrial establishment, temporary stoppage of work, liabilities and rights of the employer and the workmen arising therefrom, termination of employment, disciplinary action, penalties, etc.6. The obligation imposed on the employer to have standing order certified, the duty of the certifying authority to adjudicate upon their fairness and reasonableness, the notice to be given to the union and in its absence to the representatives of the workmen, the right conferred on them to raise objections, the opportunity given to them of being heard before they are certified, the right of appeal and the right to apply for modifications given to workmen individually, the obligation on the employer to have them published in such a manner that they become easily known to the workmen, all these provisions abundantly show that once the standing orders are certified and come into operation, they become binding on the employer and all the workmen presently employed as also those employed thereafter in the establishment conducted by that employer. It cannot possibly be that such standing orders would bind only those who are employed after they come into force and not those who were employed previously but are still in employment when they come into force. The right of being heard given to the union or, where there is no union, to the representatives of the workmen, the right of appeal and the right to apply for modification given to workmen individually clearly indicate that they were provided for because the standing orders, as they emerge after certification, are intended to be binding on all workmen in the employment of the establishment at the date when they come into force and those employed thereafter.Surely, the union or, in its absence, the representatives of workmen, who are given the right to raise objections either to the draft standing orders proposed by the employer or to the fairness and reasonableness of their provisions, could not have been intended to speak for workmen to be employed thereafter and not those whom they presently represent. Besides, if the standing orders were to bind only those who are subsequently employed, the result would be that there would be different conditions of employment for different classes of workmen, one set of conditions for those who are previously employed and another for those employed subsequently, and where they are modified, even several sets of conditions of service depending upon whether a workman was employed before the standing orders are certified or after, whether he was employed before or after a modification is made to any one of them and would bind only a few who are recruited after and not the bulk of them, who though in employment were recruited previously. Such a result could never have been intended by the legislature, for, that would render the conditions of service of workmen as indefinite and diversified, as before the enactment of the Act. Why does Section 3 (3) of the Act require the employer to give particulars of the workmen employed by him at the date of his submission of the draft standing orders unless the object of making him furnish the particulars was to have uniformity of conditions of service and to make the standing orders binding on all those presently employed. That is why the Act also insists among other things that after they are certified they must be made known to all workmen by posting them at or near the entrance through which they pass and in the language known to the majority ofdecision thus confirms the view taken by us that the object of the Act is to have uniform standing orders providing for the matters enumerated in the Schedule to the Act, that it was not intended that there should be different conditions of service for those who are employed before and those employed after the standing orders come into force, and finally, that once, the standing orders come into force, they bind all those presently in the employment of the concerned establishment as well as those who are appointedSalem Erode Electricity Distribution Company Ltd. v. Salem Erode Electricity Distribution Co. Ltd., Employees Union, 1966-2 SCR 498 = (AIR 1966 SC 808 ) this Court, however, took the same view which we have stated above and held that the provisions of the Act clearly indicated that matters specified in the Schedule to the Act should be covered by uniform standing orders applicable to all workmen employed in an industrial establishment and not merely to entrants employed after their certification. The question arose out of an application made by the employer for notification of the existing standing orders by providing different rules relating to holidays and leave for employees appointed before a certain date and those appointed after that date. Negativing such a modification, the Court, after examining the relevant provisions of the Act, stated at pages 504 and 505 (of SCR) = (at p. 811 of AIR) as followshas merely to examine these clauses one by one to be satisfied that there is no scope for having two separate Standing Orders in respect to any one of them. Take the case of classification of workmen. It is inconceivable that there can be two separate Standing Orders in respect of this matter. What we have said about classification is equally true about each one of the other said clauses; and so, the conclusion appears to be irresistible that the object of the Act is to certify Standing Orders in respect of the matters covered by the Schedule; and having regard to these matters, Standing Orders so certified would be uniform and would apply to all workmen alike who are employed in any industrial establishment".* * * * * *"On principle, it seems expedient and desirable that matters specified in the Schedule to the Act should be covered by uniform Standing Orders applicable to all workmen employed in an industrial establishment. It is not difficult to imagine how the application of two sets of Standing Orders in respect of the said matters is bound to lead to confusion in the working of the establishment and cause dissatisfaction amongst the employees. If Mr. Setalvad is right in contending that the Standing Orders in relation to these matters can be changed from time to time, it may lead to the anomalous result that in course of 10 or 15 years there may come into existence 3 or 4 different sets of Standing Orders applicable to the employees in the same industrial establishment, the application of the Standing Orders depending upon the date of employment of the respective employees. That, we think, is not intended by the provisions of thepages 509 to 510 (of SCR) = (at p. 813 of AIR) the Court referred to the case of Guest, Keen, Williams Private Ltd., 1960-1 SCR 348 = (AIR 1959 SC 1279 ) (supra), relied on by the employers counsel, and explained why the Court had fixed 60 years as the age of superannuation for the employees appointed before the standing orders were certified although the standing orders had fixed 55 years as the age of superannuation statingcourse was adopted under the special and unusual circumstances expressly stated in the course of the judgment.That reference, no doubt, was between the appellant-company and its workmen and the question decided there was whether the company was right in compulsorily retiring the six workmen there concerned under these very standing orders although they were employed before they were certified and came intoconsequence of holding that the company is barred by principles analogous to res judicata would be that there would be two sets of conditions of service, one for those previously employed and the other for those employed after the standing orders were certified, a consequence wholly incompatible with the object and policy of the Act. The very basis of the award in Ref. 91 of 1964, namely, the wrong understanding of the decision in Guest, Keen, Williams Private Ltd., 1960-1 SCR 348 = (AIR 1959 SC 1279 ) (supra), having gone, it becomes all the more difficult and undesirable to perpetuate the distinction made therein between those who were previously appointed and those appointed subsequently and to refuse on such an untenable distinction relief to the company. The award in Ref. 91 of 1964 was made on May 24, 1965 when it was believed that the decision in Guest, Keen, Williams Pvt. Ltd., 1960-1 SCR 348 = (AIR 1959 SC 1279 ) laid down the principle that standing orders would not bind workmen previously employed. That that was not so was clarified in the case of Salem Erode Electricity Distribution Co. Ltd., 1966-2 SCR 498 = (AIR 1966 SC 808 ) (supra), the decision in which was pronounced on November 3, 1965 removing thereby any possibly misapprehension.The present reference was made on June 23, 1966, long after the decision in Salem Erode Electricity Distribution Co. Ltd., 1966-2 SCR 498 = (AIR 1966 SC 808 ) (supra), and the Labour Court gave the award impugned in this appeal on July 24, 1968. Thus, both the reference and the award were made in circumstances different from those which prevailed when Ref. 91 of 1964 was made and disposed of, a factor making it doubtful the application of a principle such as res judicata.11.The second question relates to the workman, Shameem Khan. The company appointed him under a letter of appointment dated December 2, 1965 to the post of a clearer as a probationer for 6 months with discretion to the resident engineer to extend that period. The letter also stated that during his probationary period his service would be liable to termination without any notice and without assigning any reason therefor and that he would not be deemed to have been confirmed automatically in the post on the expiry of the probation period unless so advised in writing. The workman worked as such probationer till February 28, 1966 when he was served with a memorandum that his service was terminated as from the close of that day.12. The workman s case was that the company had no right to terminate his service before the expiry of the 6 months period of probation which is the period prescribed by standing order 2 (c), that the stipulation in the letter of appointment that his service was liable to termination during the probation period was contrary to that standing order, and that therefore, that stipulation was not valid, and lastly, that the said order, though apparently one of termination simpliciter, was not a bona fide order, was in truth punitive in nature, and therefore, could not be passed without an opportunity of being heard having been given to him in a properly held enquiry. The fact is that no such enquiry was held and no opportunity was given to the workman to explain any misconduct for which he could be removed or dismissed.13. The evidence before the Labour Court was that the concerned workman had unauthorisedly used the motor-cycle belonging to one Sidhana, a shift engineer in the company and that the motor-cycle met with an accident while the workman was using it causing damage to it. Three days after that accident a report alleging that his work as a probationer was unsatisfactory was made by his superior officer. On this evidence the Tribunal came to the conclusion that the impugned order was not an order of termination simpliciter, that though couched in that language it was passed as a punishment for the workman having used that vehicle without the consent of its owner and was, therefore, an order of dismisal. The Tribunal was also of the opinion that the said report alleging unsatisfactory work by the workman was colourable and made at the instance of the shift engineer or at any rate was inspired by the said incident. In this view the Labour Court held that the exercise of power to terminate the service of the workman was not bona fide and consequently it set aside that order and directed his reinstatement.e second question relates to the workman, Shameem Khan. The company appointed him under a letter of appointment dated December 2, 1965 to the post of a clearer as a probationer for 6 months with discretion to the resident engineer to extend that period. The letter also stated that during his probationary period his service would be liable to termination without any notice and without assigning any reason therefor and that he would not be deemed to have been confirmed automatically in the post on the expiry of the probation period unless so advised in writing. The workman worked as such probationer till February 28, 1966 when he was served with a memorandum that his service was terminated as from the close of that day.12. The workman s case was that the company had no right to terminate his service before the expiry of the 6 months period of probation which is the period prescribed by standing order 2 (c), that the stipulation in the letter of appointment that his service was liable to termination during the probation period was contrary to that standing order, and that therefore, that stipulation was not valid, and lastly, that the said order, though apparently one of termination simpliciter, was not a bona fide order, was in truth punitive in nature, and therefore, could not be passed without an opportunity of being heard having been given to him in a properly held enquiry. The fact is that no such enquiry was held and no opportunity was given to the workman to explain any misconduct for which he could be removed or dismissed.13. The evidence before the Labour Court was that the concerned workman had unauthorisedly used the motor-cycle belonging to one Sidhana, a shift engineer in the company and that the motor-cycle met with an accident while the workman was using it causing damage to it. Three days after that accident a report alleging that his work as a probationer was unsatisfactory was made by his superior officer. On this evidence the Tribunal came to the conclusion that the impugned order was not an order of termination simpliciter, that though couched in that language it was passed as a punishment for the workman having used that vehicle without the consent of its owner and was, therefore, an order of dismisal. The Tribunal was also of the opinion that the said report alleging unsatisfactory work by the workman was colourable and made at the instance of the shift engineer or at any rate was inspired by the said incident. In this view the Labour Court held that the exercise of power to terminate the service of the workman was not bona fide and consequently it set aside that order and directed his reinstatement. | 1 | 5,081 | 3,294 | ### 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:
was made and disposed of, a factor making it doubtful the application of a principle such as res judicata.11. The second question relates to the workman, Shameem Khan. The company appointed him under a letter of appointment dated December 2, 1965 to the post of a clearer as a probationer for 6 months with discretion to the resident engineer to extend that period. The letter also stated that during his probationary period his service would be liable to termination without any notice and without assigning any reason therefor and that he would not be deemed to have been confirmed automatically in the post on the expiry of the probation period unless so advised in writing. The workman worked as such probationer till February 28, 1966 when he was served with a memorandum that his service was terminated as from the close of that day.12. The workman s case was that the company had no right to terminate his service before the expiry of the 6 months period of probation which is the period prescribed by standing order 2 (c), that the stipulation in the letter of appointment that his service was liable to termination during the probation period was contrary to that standing order, and that therefore, that stipulation was not valid, and lastly, that the said order, though apparently one of termination simpliciter, was not a bona fide order, was in truth punitive in nature, and therefore, could not be passed without an opportunity of being heard having been given to him in a properly held enquiry. The fact is that no such enquiry was held and no opportunity was given to the workman to explain any misconduct for which he could be removed or dismissed.13. The evidence before the Labour Court was that the concerned workman had unauthorisedly used the motor-cycle belonging to one Sidhana, a shift engineer in the company and that the motor-cycle met with an accident while the workman was using it causing damage to it. Three days after that accident a report alleging that his work as a probationer was unsatisfactory was made by his superior officer. On this evidence the Tribunal came to the conclusion that the impugned order was not an order of termination simpliciter, that though couched in that language it was passed as a punishment for the workman having used that vehicle without the consent of its owner and was, therefore, an order of dismisal. The Tribunal was also of the opinion that the said report alleging unsatisfactory work by the workman was colourable and made at the instance of the shift engineer or at any rate was inspired by the said incident. In this view the Labour Court held that the exercise of power to terminate the service of the workman was not bona fide and consequently it set aside that order and directed his reinstatement.14. Now, it is a well settled principle of industrial adjudication that even if an impugned order is worded in the language of a simple termination of service, industrial tribunal can look into the facts and circumstances of the case to ascertain if it was passed in colourable exercise of the power of the management to terminate the service of an employee and find out whether it was in fact passed with a view to punish him.The letter of appointment clearly states that the workman, Shameem Khan, was appointed as a probationer for a period of 6 months with power to the resident engineer to extend the period of probation. Ordinarily, that would mean that at the end of the probation period the company would have to decide whether to confirm him to a permanent post or, if that is not possible, to terminate his service.Standing Order 2 (c) provides that a probationer is an employee who is provisionally employed to fill a permanent vacancy in a post and who has not completed the period of probation thereunder. It also lays down that the normal period of probation shall be 6 months but the resident engineer has the discretion to extend that period, the maximum period of probation being 12 months in all. Ordinarily, this would mean that a probationer s service cannot be terminated except for some misconduct until the expiry of the probation period.The letter of appointment, no doubt, contained a provision that the service of the workman was liable to termination even during the probationary period. That provision, however, must be read to mean that the appointment was subject to the management s power of termination as provided in the standing orders. Standing Order 14 provides for such a power and lays down that the service of "any employee" (which expression includes a probationer as is clear from the classification of employees in standing order 2 can be terminated on grounds (a) to (f) therein set out. It is quite clear that the termination of service of the concerned workman cannot be attributed to any one of these grounds. Therefore, that order cannot be said to have been passed in conformity with the power to terminate his service under the standing orders.15. But apart from this consideration, the Labour Court came to a finding on the evidence before it that the real reason for passing the impugned order was not the alleged unsatisfactory work on the part of the workman but his having unauthorisedly used the motor-cycle and causing damage to it, that the order was punitive and not a simple termination of service and was therefore in colourable exercise of the power of termination. This finding is clearly one of fact and meant that the Labour Court rejected the evidence led by the management that the work of the concerned workman was found unsatisfactory. It is impossible to say from the evidence before the Labour Court that that finding was perverse or such as could not be reasonably arrived at. In that view, it is impossible to interfere with the order of the Labour Court relating to workman, Shameem Khan.
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reference was made on June 23, 1966, long after the decision in Salem Erode Electricity Distribution Co. Ltd., 1966-2 SCR 498 = (AIR 1966 SC 808 ) (supra), and the Labour Court gave the award impugned in this appeal on July 24, 1968. Thus, both the reference and the award were made in circumstances different from those which prevailed when Ref. 91 of 1964 was made and disposed of, a factor making it doubtful the application of a principle such as res judicata.11.The second question relates to the workman, Shameem Khan. The company appointed him under a letter of appointment dated December 2, 1965 to the post of a clearer as a probationer for 6 months with discretion to the resident engineer to extend that period. The letter also stated that during his probationary period his service would be liable to termination without any notice and without assigning any reason therefor and that he would not be deemed to have been confirmed automatically in the post on the expiry of the probation period unless so advised in writing. The workman worked as such probationer till February 28, 1966 when he was served with a memorandum that his service was terminated as from the close of that day.12. The workman s case was that the company had no right to terminate his service before the expiry of the 6 months period of probation which is the period prescribed by standing order 2 (c), that the stipulation in the letter of appointment that his service was liable to termination during the probation period was contrary to that standing order, and that therefore, that stipulation was not valid, and lastly, that the said order, though apparently one of termination simpliciter, was not a bona fide order, was in truth punitive in nature, and therefore, could not be passed without an opportunity of being heard having been given to him in a properly held enquiry. The fact is that no such enquiry was held and no opportunity was given to the workman to explain any misconduct for which he could be removed or dismissed.13. The evidence before the Labour Court was that the concerned workman had unauthorisedly used the motor-cycle belonging to one Sidhana, a shift engineer in the company and that the motor-cycle met with an accident while the workman was using it causing damage to it. Three days after that accident a report alleging that his work as a probationer was unsatisfactory was made by his superior officer. On this evidence the Tribunal came to the conclusion that the impugned order was not an order of termination simpliciter, that though couched in that language it was passed as a punishment for the workman having used that vehicle without the consent of its owner and was, therefore, an order of dismisal. The Tribunal was also of the opinion that the said report alleging unsatisfactory work by the workman was colourable and made at the instance of the shift engineer or at any rate was inspired by the said incident. In this view the Labour Court held that the exercise of power to terminate the service of the workman was not bona fide and consequently it set aside that order and directed his reinstatement.e second question relates to the workman, Shameem Khan. The company appointed him under a letter of appointment dated December 2, 1965 to the post of a clearer as a probationer for 6 months with discretion to the resident engineer to extend that period. The letter also stated that during his probationary period his service would be liable to termination without any notice and without assigning any reason therefor and that he would not be deemed to have been confirmed automatically in the post on the expiry of the probation period unless so advised in writing. The workman worked as such probationer till February 28, 1966 when he was served with a memorandum that his service was terminated as from the close of that day.12. The workman s case was that the company had no right to terminate his service before the expiry of the 6 months period of probation which is the period prescribed by standing order 2 (c), that the stipulation in the letter of appointment that his service was liable to termination during the probation period was contrary to that standing order, and that therefore, that stipulation was not valid, and lastly, that the said order, though apparently one of termination simpliciter, was not a bona fide order, was in truth punitive in nature, and therefore, could not be passed without an opportunity of being heard having been given to him in a properly held enquiry. The fact is that no such enquiry was held and no opportunity was given to the workman to explain any misconduct for which he could be removed or dismissed.13. The evidence before the Labour Court was that the concerned workman had unauthorisedly used the motor-cycle belonging to one Sidhana, a shift engineer in the company and that the motor-cycle met with an accident while the workman was using it causing damage to it. Three days after that accident a report alleging that his work as a probationer was unsatisfactory was made by his superior officer. On this evidence the Tribunal came to the conclusion that the impugned order was not an order of termination simpliciter, that though couched in that language it was passed as a punishment for the workman having used that vehicle without the consent of its owner and was, therefore, an order of dismisal. The Tribunal was also of the opinion that the said report alleging unsatisfactory work by the workman was colourable and made at the instance of the shift engineer or at any rate was inspired by the said incident. In this view the Labour Court held that the exercise of power to terminate the service of the workman was not bona fide and consequently it set aside that order and directed his reinstatement.
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MADAN PRASAD SINHA @ SANATAN BABA Vs. UNION OF INDIA AND OTHERS | 1. The only issue which arises for determination in the present appeal is with regard to the grant of disability pension to the appellant. 2. The appellant was enrolled in the Corps of Signals of the Indian Army as a Radio Mechanic on 18 February 1971. 3. On 18 August 1981, he was discharged from military service under Army Rule 13(3) on account of being placed in a low medical category. 4. The case of the appellant is that he suffered from a Chronic Duodenal Ulcer as a result of his participation in Operation Cactus Lilly in 1971. 5. The appellant moved the Armed Forces Tribunal for the grant of war injury pension. The Tribunal declined to accede to the plea for the grant of war injury pension on the ground that it was payable only in respect of participation in operations or in the active line of duty. In the present case, it was the view of the Tribunal that the nature of the disability was not attributable to any such participation in action. This view of the Tribunal is correct. 6. On 26 November 2018, the following order was passed by this Court: Delay condoned. Application seeking leave to appeal is allowed. The submission which has been urged on behalf of the petitioner is that his claim for the grant of disability pension for the period between 1996 and 2014 has not been considered since it was in 2014 that he was granted the disability pension for the period thereafter. Issue notice confined to this question returnable within four weeks. Liberty to serve the additional copy on the Central Agency. Application for exemption from filing certified copy of the impugned judgment is allowed. 7. Notice was confined to the issue as to whether the appellant should be granted disability pension between 1996 and 2014. 8. In the counter affidavit which has been filed on behalf of the respondents, a chart has been submitted, making a reference to the Re-Survey Medical Boards which had assessed the extent of disability so as to facilitate a decision on the claim for the grant of disability pension. 9. The chart indicates that initially the extent of disability was determined at 40% for two years with effect from 14 July 1985. Subsequently, the disability was assessed at 20% for two years with effect from 17 July 1987; at 30% for five years with effect from 17 July 1990; and at 20% for ten years with effect from 23 March 1994. However, it appears that the PCDA(P), Allahabad re-assessed the disability at less than 20% on 8 May 1995. As a result of this, the appellant did not receive disability pension with effect from 24 March 1995. 10. With effect from 30 January 2014, the disability of the appellant was assessed at 20% on a permanent basis for life by the Military Hospital, Danapur Cantt. The above narration of facts would indicate that the position as it stands pursuant to the assessment done by the Military Hospital with effect from 30 January 2014 is that the appellant suffers from 20% disability which is assessed for life. He has received disability pension thereafter. 11. In this background, we are of the view that the denial of disability pension to the appellant for the period between 24 March 1995 and 30 January 2014 was misconceived. The disability element has already been rounded off in pursuance of the previous order passed by the Armed Forces Tribunal. | 1[ds]9. The chart indicates that initially the extent of disability was determined at 40% for two years with effect from 14 July 1985. Subsequently, the disability was assessed at 20% for two years with effect from 17 July 1987; at 30% for five years with effect from 17 July 1990; and at 20% for ten years with effect from 23 March 1994. However, it appears that the PCDA(P), Allahabad re-assessed the disability at less than 20% on 8 May 1995. As a result of this, the appellant did not receive disability pension with effect from 24 March 1995.10. With effect from 30 January 2014, the disability of the appellant was assessed at 20% on a permanent basis for life by the Military Hospital, Danapur Cantt. The above narration of facts would indicate that the position as it stands pursuant to the assessment done by the Military Hospital with effect from 30 January 2014 is that the appellant suffers from 20% disability which is assessed for life. He has received disability pension thereafter.11. In this background, we are of the view that the denial of disability pension to the appellant for the period between 24 March 1995 and 30 January 2014 was misconceived. The disability element has already been rounded off in pursuance of the previous order passed by the Armed Forces Tribunal. | 1 | 643 | 255 | ### Instruction:
Forecast the likely verdict of the case (granting (1) or denying (0) the appeal) and then rationalize your prediction by pinpointing and explaining pivotal sentences in the case document.
### Input:
1. The only issue which arises for determination in the present appeal is with regard to the grant of disability pension to the appellant. 2. The appellant was enrolled in the Corps of Signals of the Indian Army as a Radio Mechanic on 18 February 1971. 3. On 18 August 1981, he was discharged from military service under Army Rule 13(3) on account of being placed in a low medical category. 4. The case of the appellant is that he suffered from a Chronic Duodenal Ulcer as a result of his participation in Operation Cactus Lilly in 1971. 5. The appellant moved the Armed Forces Tribunal for the grant of war injury pension. The Tribunal declined to accede to the plea for the grant of war injury pension on the ground that it was payable only in respect of participation in operations or in the active line of duty. In the present case, it was the view of the Tribunal that the nature of the disability was not attributable to any such participation in action. This view of the Tribunal is correct. 6. On 26 November 2018, the following order was passed by this Court: Delay condoned. Application seeking leave to appeal is allowed. The submission which has been urged on behalf of the petitioner is that his claim for the grant of disability pension for the period between 1996 and 2014 has not been considered since it was in 2014 that he was granted the disability pension for the period thereafter. Issue notice confined to this question returnable within four weeks. Liberty to serve the additional copy on the Central Agency. Application for exemption from filing certified copy of the impugned judgment is allowed. 7. Notice was confined to the issue as to whether the appellant should be granted disability pension between 1996 and 2014. 8. In the counter affidavit which has been filed on behalf of the respondents, a chart has been submitted, making a reference to the Re-Survey Medical Boards which had assessed the extent of disability so as to facilitate a decision on the claim for the grant of disability pension. 9. The chart indicates that initially the extent of disability was determined at 40% for two years with effect from 14 July 1985. Subsequently, the disability was assessed at 20% for two years with effect from 17 July 1987; at 30% for five years with effect from 17 July 1990; and at 20% for ten years with effect from 23 March 1994. However, it appears that the PCDA(P), Allahabad re-assessed the disability at less than 20% on 8 May 1995. As a result of this, the appellant did not receive disability pension with effect from 24 March 1995. 10. With effect from 30 January 2014, the disability of the appellant was assessed at 20% on a permanent basis for life by the Military Hospital, Danapur Cantt. The above narration of facts would indicate that the position as it stands pursuant to the assessment done by the Military Hospital with effect from 30 January 2014 is that the appellant suffers from 20% disability which is assessed for life. He has received disability pension thereafter. 11. In this background, we are of the view that the denial of disability pension to the appellant for the period between 24 March 1995 and 30 January 2014 was misconceived. The disability element has already been rounded off in pursuance of the previous order passed by the Armed Forces Tribunal.
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9. The chart indicates that initially the extent of disability was determined at 40% for two years with effect from 14 July 1985. Subsequently, the disability was assessed at 20% for two years with effect from 17 July 1987; at 30% for five years with effect from 17 July 1990; and at 20% for ten years with effect from 23 March 1994. However, it appears that the PCDA(P), Allahabad re-assessed the disability at less than 20% on 8 May 1995. As a result of this, the appellant did not receive disability pension with effect from 24 March 1995.10. With effect from 30 January 2014, the disability of the appellant was assessed at 20% on a permanent basis for life by the Military Hospital, Danapur Cantt. The above narration of facts would indicate that the position as it stands pursuant to the assessment done by the Military Hospital with effect from 30 January 2014 is that the appellant suffers from 20% disability which is assessed for life. He has received disability pension thereafter.11. In this background, we are of the view that the denial of disability pension to the appellant for the period between 24 March 1995 and 30 January 2014 was misconceived. The disability element has already been rounded off in pursuance of the previous order passed by the Armed Forces Tribunal.
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Harjeet Singh Etc Vs. Union of India and Others | organise Battalions of the Punjab Armed Police which came to be formed after the Chinese aggression in 1962 and at the time of the Indo-Pakistan War in 1965. It was in the vacancies caused by their deputation that Senior officers of the State Police Services were appointed to cadre posts. Under Rule 6(A) (2) of the Indian Police Service Recruitment Rules a direct recruit in the junior time scale of pay can be appointed to a post in the Senior time scale of pay if having regard to his length of service, experience and performance he is found to be suitable for appointment to a post in the Senior time scale of pay. I t appears that, at that time, in Punjab, there was no direct recruit in the Junior time scale of pay who possessed experience of atleast four years who could be thought of for appointment in the Senior post. The State Government, therefore, had no option except to appoint experienced and suitable non-cadre officers to cadre posts. It was also brought to our notice that no cadre officer who had been so deputed suffered in any manner in the matter of his career.23. It was repeatedly suggested that the State Governments were generally in the habit of adopting stratagem of sending cadre officer on deputation in excess of the Deputation Reserve in order to enable Officers of the State Services to officiate in cadre posts so as to further en able them to get the benefit of such continuous officiation when finally appointed to an All India Service. Whatever truth there may be in the suggestion it has to be remembered firstly that the appointment of non-cadre officers to cadre posts is subject to the directions of the Central Government who may terminate such appointment. The Central Government too is bound to obtain the advice of the Union Public Service Commission if the appointment is to extend beyond six months. Next, it has also to be borne in mind that non-cadre officers of proven merit only are appointed to cadre posts. They are appointed to cadre posts if they are already in the Select List and the appointments also are made in accordance with the order in which they are placed in the Select List. We have earlier mentioned how the Select List itself if prepared under the Indian Police Service Recruitment Rules after following an elaborate procedure involving a thorough examination of various levels, of the merit of the officers of the State Police Service. A State officer whose name appears on the Select List may expect to be appointed to a Cadre post and to be promoted to the Indian Police Service at any time thereafter according to vacancy position. A direct recruit who ordinarily comes into the picture years after a State Officers name appears on the Select List cannot have any real grievance that the promoted officer is given an anterior date for the purpose of seniority since such date can never be earlier than the date from which the junior most direct recruit continuously officiated in a Senior post prior to the commencement of the continuous officiation of the promoted officer.24. We are also unable to appreciate the submission of Shri R. K. Garg that every departure from a rule, which departure gives certain advantages to one group of civil servants as against another necessarily involves an encroachment of the Fundamental Rights guaranteed b y Articles 14 and 16 of the Constitution. The proposition is widely stated, far fetched in relation to the facts of the instant case and not supported by N. K. Chauhan &Ors. v. State of Gujarat(1) on which Shri Garg relied. In Chauhans case the Court was considering the effect of the breach of a Quota rule fixing the proportion of direct recruits and promotees. In the present case, as already noticed by us, there is no allegation of breach of the quota rule embodied in Rule 9(2) of the Recruitment Rules. The Fixation of Cadre Strength Regulations cannot be interpreted as comprising any Quota rule. The consequential submission of Shri Garg that rule 3(3)(b), if so interpreted as to take into account officiation in contravention of the rules, offends Articles 14 and 16 of the Constitution, therefore, loses all force particularly in view of what we have said about the true nature of the Fixation of Cadre Strength Regulations. We also notice that t he vires of Rule 3(3)(b) of the Indian Administrative Service (Regulation of Seniority) Rules which is in similar terms as rule 3(3)(b) of the Indian Police Service (Regulation of Seniority) Rules was upheld by a Constitution Bench of this Court in A. P. Sharma v. Union of India.(2) In the light of our foregoing discussion we hold that the over utilisation of Deputation and Central Reserve does not affect the questions of assignment of the year of allotment and the seniority of the appellants. The concurrent finding of the learned single judge and the Division Bench that Kapurs service as Commandant, P.A.P. Battalion No. 25 was service in a Senior post was not challenged before us. Shri Mridul argued t hat the records reveal that Kapurs appointment to the posts of Director of Sports and Additional Controller of Stores was because of his exceptional ability and, therefore, those posts must be treated as cadre posts. In any event, he suggested that we should invite the Government of India to suitably relax the rules so as to enable Kapurs service as Director of Sports and Additional Controller of Stores to be reckoned as service in cadre posts. We cannot of course hold Kapurs service in non -cadre posts as service in cadre posts. Nor can we give the direction sought by Shri Mridul. It is of course open to Kapur to invoke the power of the Government of India to relax the rules and it is for the Government to take a just decision in t he matter. We have no advice to offer.25. | 1[ds]So, therefore, our primary concern is with the Indian Police Service (Regulation of Seniority) Rules, 1954. Rule 3(3) (b) as well as rule 4(4) throw up the date of continuous officiation of an officer in a cadre post as the most important factor both for the purpose of assignment of year of allotment and for the purpose of assignment of seniority. For the purpose of assignment of year of allotment the date of continuous officiation in a senior post is the only relevant factor while for the purpose of assignment of seniority, first, the date of continuous officiation in a senior post is the only relevant fact or while for the if the date of commencement of continuous officiation in a Senior post of more than one officer is the same and, finally, the order in the Select List if the date of appointment is also the same, are the several relevant factors in that order. Thus the order in the Select List is irrelevant for the purpose of determining the year of allotment and is relevant in determining the seniority, only if the year of allotment of the Officers is the same and their date of appointment is also the same. Since the order in the Select List is dependent on the seniority in the State Service, it follows that seniority in the State Police Service is irrelevant for the purpose of determining the year of allotment and is r elevant for the purpose of determining the seniority only if the year of allotment and the date of appointment of two or more officers are the same. It must, therefore, necessarily follow that an officer who is junior to another in the State Police Service but, who starts continuous officiation in a Senior post from a date earlier than the other, may frog-leap and gain Seniority by the consequential assignment of an earlier year of allotment. There is nothing in the Indian Police Service (Regulation of Seniority) Rules, which has the effect of depriving an officer the benefit of continuous officiation on the ground that some one senior to him in the State Police Service did not so continuously officiate. Nor are we able to discover any other rule in the innumerable Rules and Regulations governing the recruitment, appointment and Regulation of Seniority of officers of the Indian Police Service which is designed to deprive an officer, the benefit of continuous officiation in a Seniorof the submissions made to us by the respondents was that the Select List having been prepared on grounds of merit and ability, the order in which officers were ranked in the Select List should not be disturbed after they were actually promoted to the Indian Police Service.This submission is without substance. Though under the Indian Police Service (Appointment by Promotion) Regulations, the Select List is prepared on the basis of merit and ability, the order in which officers are placed in the Select List is according to seniority in the State Police Service and not according to merit and ability. Merit and ability are considered for the purpose of inclusion in the Select List but thereafter seniority in the State Police Service takes over and the names of Officers are arranged in the order of that seniority. We, are, therefore, satisfied that the benefit of continuous officiation in a Senior post cannot be denied to an officer appointed to the Indian Police Service merely on the ground that an officer senior to him in the State Police Service did not so continuouslyis, however, true that under Regulation 8 of the Indian Police Service (Appointment by Promotion) Regulations, appointments to cadre posts from among non-cadre officers should be made according to the order in which the names of such officers appear in the Select List. A deviation from the order is permissible if administrative exigencies require it and if the vacancy is not likely to last for more than three months. Of course, the Regulation does not license uninhibited deviation to favour individual non-cadre officers. If that is done the deviation is liable to challenge. But where there is no such allegation, there is no reason why a junior non-cadre officer should lose the benefit of his continuous officiation in a cadre post merely because a non-cadre officer senior to him in the Select List did not continuously officiate likewise. In such a situation, it would be for the Government of India to consider whether the relevant rules may not be so relaxed as to enable such non-cadre officer to ad d his officiation in a non-cadre post to his officiation in a cadre post, regard being had to the circumstances under which the officer had to work in a non-cadre post while his junior in the Select List was made to fill the cadre post. But, surely, it cannot work to the prejudice of the junior officer in the Select List so as to nullify the actual, continuous, officiating service rendered by him. In the present case there is no allegation that B. R. Kapur was appointed to the non-cadre posts of Director of Sports and Additional Controller of Stores with a view to favour Harjeetthe question for consideration is whether non- cadre officers are to be denied the benefit of continuous officiation in senior post merely because cadre officers were appointed on deputation elsewhere in excess of the number of posts specified against `Deputation Reserve in the schedule to the Cadre Fixation of Strength Regulation. We are unable to discover any provision in the Seniority Rules, Recruitment Rules, Cadre Rules or the Cadre Regulations which would lead to such a consequence. To begin with it has to be borne in mind that the Fixation of Cadre Strength Regulations are made in exercise of the powers conferred on the Central Government by Rule 4(1) of the Cadre Rules and are, therefore, subordinate to the Cadre rules even as rules made in exercise of powers conferred by a Statute are necessarily subordinate to the Statute. Rule 6 of th e Cadre Rules provides for the deputation of Cadre Officers and Rule 9 of the same rules provides for the temporary appointment of non-cadre officers to cadre posts. In making appointments of non-cadre officers to cadre posts the rule prescribes the fulfillment of certain conditions. It is not disputed that the conditions prescribed by Rule 9 of the Cadre Rules were fulfilled. That the conditions were fulfilled is also apparent from the very impugned order. If non-cadre officers are appointed to cadre posts in accordance with Rule 9 of the Cadre Rules, is there any justification for denying the non-cadre officer the benefit of officiation in the cadre post on the ground that more cadre officers than the number specified in the Fixation of Cadre Strength Regulations had been deputed for service elsewhere ? It is not disputed that the deputation of cadre officers was in accordance with Rule 6 of the Cadre Rules. True, Rule 4(1) of the Cadre Rule enables the Central Government to make Regulations determining the strength and composition of the Cadre of each State. It is also true that a definite number of posts is specified against `Deputation Reserve in the schedule to the Fixation of Cadre Strength Regulations. But if owing to the situational demands and exigencies of the administration the number is exceeded and the State Government is compelled to utilise the services of experienced non-cadre officers to fill cadre posts in strict compliance with the Cadre Rules, we see no reason to hold that the service rendered by the non-cadre officers in such posts should bethe other hand we think that the Fixation of Cadre Strength Regulations made under Rule 4 of the Cadre Rules do not over -ride the Recruitment Rule, the remaining Cadre Rules and the Seniority Rules so as to render invalid any service rendered by a non-cadre officer in a cadre post on the mere ground of breach of the Fixation of Cadre Strength Regulations, when th ere has been strict compliance with Rule 9 of the Cadre Rules. We think that fixation of Cadre strength is the exclusive concern of the Central and the State Governments and the Regulations are made for their convenience and better relation ship. Excessive utilisation of `Deputation or Central Reserve is a matter for adjustment and controversy between the Central and the State Governments and is of no concern to any member of the Service. For example no cadre officer who is asked to fill a deputation post can refuse to join the post on the ground that the `Deputation Reserve has already been exceeded. The Regulations are not intended to and do not confer any right on any member of the Service, unlike some other Rules which do confer or create rights in the members of the Services. Among other Rules, for instance, Rule 9(2) of the Recruitment Rules stipulates that the total number of persons recruited by promotion shall not at any time exceed 25% of the posts shown against item Nos. 1 and 2 of the cadre in the schedule to the Fixation of Cadre Strength Regulations. Now, if at a point of time this limit is exceeded, direct recruits may have a just cause for complaint and it m ay perhaps be held that to the extent of the excess the appointments by promotion are invalid and confer no rights of seniority over direct recruits. But, as we said, the Fixation of Strength Regulation confer no rights on members of the Service and a mere breach of the Regulation furnishes no cause of action to any member of the service On the ground that his seniority is affected in some round about way. We may add that there is no suggestion that Rule 9(2) of the Recruitment Rules w aswas brought to our notice that several Senior cadre officers had to be deputed to organise Battalions of the Punjab Armed Police which came to be formed after the Chinese aggression in 1962 and at the time of the Indo-Pakistan War in 1965. It was in the vacancies caused by their deputation that Senior officers of the State Police Services were appointed to cadre posts. Under Rule 6(A) (2) of the Indian Police Service Recruitment Rules a direct recruit in the junior time scale of pay can be appointed to a post in the Senior time scale of pay if having regard to his length of service, experience and performance he is found to be suitable for appointment to a post in the Senior time scale of pay. I t appears that, at that time, in Punjab, there was no direct recruit in the Junior time scale of pay who possessed experience of atleast four years who could be thought of for appointment in the Senior post. The State Government, therefore, had no option except to appoint experienced and suitable non-cadre officers to cadre posts. It was also brought to our notice that no cadre officer who had been so deputed suffered in any manner in the matter of histruth there may be in the suggestion it has to be remembered firstly that the appointment of non-cadre officers to cadre posts is subject to the directions of the Central Government who may terminate such appointment. The Central Government too is bound to obtain the advice of the Union Public Service Commission if the appointment is to extend beyond six months. Next, it has also to be borne in mind that non-cadre officers of proven merit only are appointed to cadre posts. They are appointed to cadre posts if they are already in the Select List and the appointments also are made in accordance with the order in which they are placed in the Select List. We have earlier mentioned how the Select List itself if prepared under the Indian Police Service Recruitment Rules after following an elaborate procedure involving a thorough examination of various levels, of the merit of the officers of the State Police Service. A State officer whose name appears on the Select List may expect to be appointed to a Cadre post and to be promoted to the Indian Police Service at any time thereafter according to vacancy position. A direct recruit who ordinarily comes into the picture years after a State Officers name appears on the Select List cannot have any real grievance that the promoted officer is given an anterior date for the purpose of seniority since such date can never be earlier than the date from which the junior most direct recruit continuously officiated in a Senior post prior to the commencement of the continuous officiation of the promotedare also unable to appreciate the submission of Shri R. K. Garg that every departure from a rule, which departure gives certain advantages to one group of civil servants as against another necessarily involves an encroachment of the Fundamental Rights guaranteed b y Articles 14 and 16 of the Constitution. The proposition is widely stated, far fetched in relation to the facts of the instant case and not supported by N. K. Chauhan &Ors. v. State of Gujarat(1) on which Shri Garg relied. In Chauhans case the Court was considering the effect of the breach of a Quota rule fixing the proportion of direct recruits and promotees. In the present case, as already noticed by us, there is no allegation of breach of the quota rule embodied in Rule 9(2) of the Recruitment Rules. The Fixation of Cadre Strength Regulations cannot be interpreted as comprising any Quota rule. The consequential submission of Shri Garg that rule 3(3)(b), if so interpreted as to take into account officiation in contravention of the rules, offends Articles 14 and 16 of the Constitution, therefore, loses all force particularly in view of what we have said about the true nature of the Fixation of Cadre Strength Regulations. We also notice that t he vires of Rule 3(3)(b) of the Indian Administrative Service (Regulation of Seniority) Rules which is in similar terms as rule 3(3)(b) of the Indian Police Service (Regulation of Seniority) Rules was upheld by a Constitution Bench of this Court in A. P. Sharma v. Union ofthe light of our foregoing discussion we hold that the over utilisation of Deputation and Central Reserve does not affect the questions of assignment of the year of allotment and the seniority of the appellants. The concurrent finding of the learned single judge and the Division Bench that Kapurs service as Commandant, P.A.P. Battalion No. 25 was service in a Senior post was not challenged before us. Shri Mridul argued t hat the records reveal that Kapurs appointment to the posts of Director of Sports and Additional Controller of Stores was because of his exceptional ability and, therefore, those posts must be treated as cadre posts. In any event, he suggested that we should invite the Government of India to suitably relax the rules so as to enable Kapurs service as Director of Sports and Additional Controller of Stores to be reckoned as service in cadre posts. We cannot of course hold Kapurs service in non -cadre posts as service in cadre posts. Nor can we give the direction sought by Shri Mridul. It is of course open to Kapur to invoke the power of the Government of India to relax the rules and it is for the Government to take a just decision in t he matter. We have no advice tosubmission is without substance. Though under the Indian Police Service (Appointment by Promotion) Regulations, the Select List is prepared on the basis of merit and ability, the order in which officers are placed in the Select List is according to seniority in the State Police Service and not according to merit and ability. Merit and ability are considered for the purpose of inclusion in the Select List but thereafter seniority in the State Police Service takes over and the names of Officers are arranged in the order of that seniority. We, are, therefore, satisfied that the benefit of continuous officiation in a Senior post cannot be denied to an officer appointed to the Indian Police Service merely on the ground that an officer senior to him in the State Police Service did not so continuously | 1 | 6,764 | 2,929 | ### Instruction:
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organise Battalions of the Punjab Armed Police which came to be formed after the Chinese aggression in 1962 and at the time of the Indo-Pakistan War in 1965. It was in the vacancies caused by their deputation that Senior officers of the State Police Services were appointed to cadre posts. Under Rule 6(A) (2) of the Indian Police Service Recruitment Rules a direct recruit in the junior time scale of pay can be appointed to a post in the Senior time scale of pay if having regard to his length of service, experience and performance he is found to be suitable for appointment to a post in the Senior time scale of pay. I t appears that, at that time, in Punjab, there was no direct recruit in the Junior time scale of pay who possessed experience of atleast four years who could be thought of for appointment in the Senior post. The State Government, therefore, had no option except to appoint experienced and suitable non-cadre officers to cadre posts. It was also brought to our notice that no cadre officer who had been so deputed suffered in any manner in the matter of his career.23. It was repeatedly suggested that the State Governments were generally in the habit of adopting stratagem of sending cadre officer on deputation in excess of the Deputation Reserve in order to enable Officers of the State Services to officiate in cadre posts so as to further en able them to get the benefit of such continuous officiation when finally appointed to an All India Service. Whatever truth there may be in the suggestion it has to be remembered firstly that the appointment of non-cadre officers to cadre posts is subject to the directions of the Central Government who may terminate such appointment. The Central Government too is bound to obtain the advice of the Union Public Service Commission if the appointment is to extend beyond six months. Next, it has also to be borne in mind that non-cadre officers of proven merit only are appointed to cadre posts. They are appointed to cadre posts if they are already in the Select List and the appointments also are made in accordance with the order in which they are placed in the Select List. We have earlier mentioned how the Select List itself if prepared under the Indian Police Service Recruitment Rules after following an elaborate procedure involving a thorough examination of various levels, of the merit of the officers of the State Police Service. A State officer whose name appears on the Select List may expect to be appointed to a Cadre post and to be promoted to the Indian Police Service at any time thereafter according to vacancy position. A direct recruit who ordinarily comes into the picture years after a State Officers name appears on the Select List cannot have any real grievance that the promoted officer is given an anterior date for the purpose of seniority since such date can never be earlier than the date from which the junior most direct recruit continuously officiated in a Senior post prior to the commencement of the continuous officiation of the promoted officer.24. We are also unable to appreciate the submission of Shri R. K. Garg that every departure from a rule, which departure gives certain advantages to one group of civil servants as against another necessarily involves an encroachment of the Fundamental Rights guaranteed b y Articles 14 and 16 of the Constitution. The proposition is widely stated, far fetched in relation to the facts of the instant case and not supported by N. K. Chauhan &Ors. v. State of Gujarat(1) on which Shri Garg relied. In Chauhans case the Court was considering the effect of the breach of a Quota rule fixing the proportion of direct recruits and promotees. In the present case, as already noticed by us, there is no allegation of breach of the quota rule embodied in Rule 9(2) of the Recruitment Rules. The Fixation of Cadre Strength Regulations cannot be interpreted as comprising any Quota rule. The consequential submission of Shri Garg that rule 3(3)(b), if so interpreted as to take into account officiation in contravention of the rules, offends Articles 14 and 16 of the Constitution, therefore, loses all force particularly in view of what we have said about the true nature of the Fixation of Cadre Strength Regulations. We also notice that t he vires of Rule 3(3)(b) of the Indian Administrative Service (Regulation of Seniority) Rules which is in similar terms as rule 3(3)(b) of the Indian Police Service (Regulation of Seniority) Rules was upheld by a Constitution Bench of this Court in A. P. Sharma v. Union of India.(2) In the light of our foregoing discussion we hold that the over utilisation of Deputation and Central Reserve does not affect the questions of assignment of the year of allotment and the seniority of the appellants. The concurrent finding of the learned single judge and the Division Bench that Kapurs service as Commandant, P.A.P. Battalion No. 25 was service in a Senior post was not challenged before us. Shri Mridul argued t hat the records reveal that Kapurs appointment to the posts of Director of Sports and Additional Controller of Stores was because of his exceptional ability and, therefore, those posts must be treated as cadre posts. In any event, he suggested that we should invite the Government of India to suitably relax the rules so as to enable Kapurs service as Director of Sports and Additional Controller of Stores to be reckoned as service in cadre posts. We cannot of course hold Kapurs service in non -cadre posts as service in cadre posts. Nor can we give the direction sought by Shri Mridul. It is of course open to Kapur to invoke the power of the Government of India to relax the rules and it is for the Government to take a just decision in t he matter. We have no advice to offer.25.
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Recruitment Rules a direct recruit in the junior time scale of pay can be appointed to a post in the Senior time scale of pay if having regard to his length of service, experience and performance he is found to be suitable for appointment to a post in the Senior time scale of pay. I t appears that, at that time, in Punjab, there was no direct recruit in the Junior time scale of pay who possessed experience of atleast four years who could be thought of for appointment in the Senior post. The State Government, therefore, had no option except to appoint experienced and suitable non-cadre officers to cadre posts. It was also brought to our notice that no cadre officer who had been so deputed suffered in any manner in the matter of histruth there may be in the suggestion it has to be remembered firstly that the appointment of non-cadre officers to cadre posts is subject to the directions of the Central Government who may terminate such appointment. The Central Government too is bound to obtain the advice of the Union Public Service Commission if the appointment is to extend beyond six months. Next, it has also to be borne in mind that non-cadre officers of proven merit only are appointed to cadre posts. They are appointed to cadre posts if they are already in the Select List and the appointments also are made in accordance with the order in which they are placed in the Select List. We have earlier mentioned how the Select List itself if prepared under the Indian Police Service Recruitment Rules after following an elaborate procedure involving a thorough examination of various levels, of the merit of the officers of the State Police Service. A State officer whose name appears on the Select List may expect to be appointed to a Cadre post and to be promoted to the Indian Police Service at any time thereafter according to vacancy position. A direct recruit who ordinarily comes into the picture years after a State Officers name appears on the Select List cannot have any real grievance that the promoted officer is given an anterior date for the purpose of seniority since such date can never be earlier than the date from which the junior most direct recruit continuously officiated in a Senior post prior to the commencement of the continuous officiation of the promotedare also unable to appreciate the submission of Shri R. K. Garg that every departure from a rule, which departure gives certain advantages to one group of civil servants as against another necessarily involves an encroachment of the Fundamental Rights guaranteed b y Articles 14 and 16 of the Constitution. The proposition is widely stated, far fetched in relation to the facts of the instant case and not supported by N. K. Chauhan &Ors. v. State of Gujarat(1) on which Shri Garg relied. In Chauhans case the Court was considering the effect of the breach of a Quota rule fixing the proportion of direct recruits and promotees. In the present case, as already noticed by us, there is no allegation of breach of the quota rule embodied in Rule 9(2) of the Recruitment Rules. The Fixation of Cadre Strength Regulations cannot be interpreted as comprising any Quota rule. The consequential submission of Shri Garg that rule 3(3)(b), if so interpreted as to take into account officiation in contravention of the rules, offends Articles 14 and 16 of the Constitution, therefore, loses all force particularly in view of what we have said about the true nature of the Fixation of Cadre Strength Regulations. We also notice that t he vires of Rule 3(3)(b) of the Indian Administrative Service (Regulation of Seniority) Rules which is in similar terms as rule 3(3)(b) of the Indian Police Service (Regulation of Seniority) Rules was upheld by a Constitution Bench of this Court in A. P. Sharma v. Union ofthe light of our foregoing discussion we hold that the over utilisation of Deputation and Central Reserve does not affect the questions of assignment of the year of allotment and the seniority of the appellants. The concurrent finding of the learned single judge and the Division Bench that Kapurs service as Commandant, P.A.P. Battalion No. 25 was service in a Senior post was not challenged before us. Shri Mridul argued t hat the records reveal that Kapurs appointment to the posts of Director of Sports and Additional Controller of Stores was because of his exceptional ability and, therefore, those posts must be treated as cadre posts. In any event, he suggested that we should invite the Government of India to suitably relax the rules so as to enable Kapurs service as Director of Sports and Additional Controller of Stores to be reckoned as service in cadre posts. We cannot of course hold Kapurs service in non -cadre posts as service in cadre posts. Nor can we give the direction sought by Shri Mridul. It is of course open to Kapur to invoke the power of the Government of India to relax the rules and it is for the Government to take a just decision in t he matter. We have no advice tosubmission is without substance. Though under the Indian Police Service (Appointment by Promotion) Regulations, the Select List is prepared on the basis of merit and ability, the order in which officers are placed in the Select List is according to seniority in the State Police Service and not according to merit and ability. Merit and ability are considered for the purpose of inclusion in the Select List but thereafter seniority in the State Police Service takes over and the names of Officers are arranged in the order of that seniority. We, are, therefore, satisfied that the benefit of continuous officiation in a Senior post cannot be denied to an officer appointed to the Indian Police Service merely on the ground that an officer senior to him in the State Police Service did not so continuously
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State Of Punjab & Ors Vs. Bhajan Singh & Anr | (2) of Section 24 of the Act. It appears that the appellants have overlooked the provisions of the Punjab State Election Commission Act, 1994 which deals with the constitution of the State Election Commission and for vesting the superintendence, direction and control of the preparation of the electoral rolls for and in the conduct of all elections to the Panchayat and Municipalities in the State of Punjab and to provide for all matters relating to or ancillary or in connection with the provisions of the Panchayat and Municipalities in terms of the provisions of Part IX and IXA of the Constitution. Chapter IV in general and Section 11 in particular deals with the disqualifications for Membership of a Panchayat or Municipality. Section 11 reads: "Disqualifications for membership of a Panchayat or a Municipality - A person shall be disqualified for being chosen as, and for being a member of a Panchayat or a Municipality,- (a) if he is not a citizen of India, or has voluntarily acquired the citizenship of a foreign State, or is under any acknowledgement of allegiance or adherence to a foreign State; or (b) if he is of unsound mind and stands so declared by a competent court; or (c) if he is an undischarged insolvent; or (d) if he has, in proceedings for questioning the validity or regularity of an election, been found guilty of any corrupt practice; or (e) if he has been found guilty of any offence punishable under Section 153A or Section 171E or Section 171F or Section 376 or Section 376A or Section 376B or Section 376C or Section 376D or Section 498A or Section 505 of the Indian Penal Code, 1960 or any offence punishable under Chapter XIII of this Act unless a period of six years has elapsed since the date of such conviction; or (f) if he holds an office of profit under a Panchayat or a Municipality; or (g) if he holds an office of profit under the Government of India or any State Government; or (h) if he is interested in any subsisting contract made with, or any work being done for, that Panchayat or Municipality except as a share-holder (other than a Director) in an incorporated company or as a member of a cooperative society; or (i) if he is retained or employed in any professional capacity either personally or in the name of a firm in which he is a partner, or with which he is engaged in a professional capacity, in connection with any cause or proceeding in which the Panchayat or the Municipality is interested or concerned; or (j) if he, having held any office under the State Government or any Panchayat or any Municipality or any other State level authority or any Government company or any corporate body owned or controlled by the State Government or Government of India, has been dismissed from service, unless a period of four years has elapsed since his dismissal." 12. Disqualification contemplated "under any law for the time being in force" under proviso to sub-section (2) of Section 24 are, therefore, the disqualification as mentioned in Section 11 of the Punjab State Election Commission Act, 1994. The appellants have nowhere stated or alleged any such disqualifications attributable to the respondent No. 1. 13. We also do not accept the plea of the appellants that by assuming his duties as President, the respondent had allegedly, "flagrantly abused" his position as a member, thereby incurring the wrath of the State Government in terms of Section 16(1)(e) or Section 20 of the Act. The clause "flagrantly abused of his position as member" means the doing of such act or acts by a member of a committee in disregard of his duty which would shock a reasonable mind. The nature of the `abuse before it could be termed as `flagrant, must, in the circumstance be glaring, notorious, enormous, scandalous or wicked. There is nothing on record to show or suggest that the respondent No. 1 in his capacity as member or President took any undue advantage of his position or under the colour of his office committed any particular irregularity or reprehensive acts. Any alleged contravention of the provisions of the Act cannot be categorised as "flagrant abuse of power" by a member of the Committee. The mere contravention, if any, (which was not in this case) in respondent No. 1 entering upon his office as President before his name was approved and published in the Official Gazette, particularly on account of wilful omission of the State Government cannot be called either a `flagrant abuse of position as a member or `abuse of power within the contemplation of Section 16(1)(e) and Section 20 of the Act. 14. The appeal which is bereft of any merit is liable to be dismissed. We are at pain to note that by his acts of omission and commission the said Secretary has consistently and persistently deprived the respondent No. 1 of the duty to assume and discharge his duties as member and President of the Municipal Council, despite his election from 2.1.1998 till date. The term of the office of the Municipality is a fixed term out of which three years of the respondent No. 1 have been wasted in uncalled for and forced litigation upon him. No law can compensate the loss of opportunity provided to the respondent No. 1 for serving the people after his election as Member and President of the Municipality. We find it a fit case to award exemplary costs and are of the firm view that such costs should not be burdened upon the State exchequer. The said Secretary who is responsible for the violation of the statutory provisions and weakening the concept of rule of law, is, therefore, personally liable to pay the costs from his own pockets. While dismissing this appeal we direct the said Secretary to personally pay the costs of Rs. 25,000/- to the respondent No. 1 within a period of two months. | 0[ds]13. We also do not accept the plea of the appellants that by assuming his duties as President, the respondent had allegedly, "flagrantly abused" his position as a member, thereby incurring the wrath of the State Government in terms of Section 16(1)(e) or Section 20 of the Act. The clause "flagrantly abused of his position as member" means the doing of such act or acts by a member of a committee in disregard of his duty which would shock a reasonable mind. The nature of the `abuse before it could be termed as `flagrant, must, in the circumstance be glaring, notorious, enormous, scandalous or wicked. There is nothing on record to show or suggest that the respondent No. 1 in his capacity as member or President took any undue advantage of his position or under the colour of his office committed any particular irregularity or reprehensive acts. Any alleged contravention of the provisions of the Act cannot be categorised as "flagrant abuse of power" by a member of the Committee. The mere contravention, if any, (which was not in this case) in respondent No. 1 entering upon his office as President before his name was approved and published in the Official Gazette, particularly on account of wilful omission of the State Government cannot be called either a `flagrant abuse of position as a member or `abuse of power within the contemplation of Section 16(1)(e) and Section 20 of the Act.The appeal which is bereft of any merit is liable to be dismissed. We are at pain to note that by his acts of omission and commission the said Secretary has consistently and persistently deprived the respondent No. 1 of the duty to assume and discharge his duties as member and President of the Municipal Council, despite his election from 2.1.1998 till date. The term of the office of the Municipality is a fixed term out of which three years of the respondent No. 1 have been wasted in uncalled for and forced litigation upon him. No law can compensate the loss of opportunity provided to the respondent No. 1 for serving the people after his election as Member and President of the Municipality. We find it a fit case to award exemplary costs and are of the firm view that such costs should not be burdened upon the State exchequer. The said Secretary who is responsible for the violation of the statutory provisions and weakening the concept of rule of law, is, therefore, personally liable to pay the costs from his own pockets. While dismissing this appeal we direct the said Secretary to personally pay the costs of Rs. 25,000/- to the respondent No. 1 within a period of two months. | 0 | 3,338 | 516 | ### 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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(2) of Section 24 of the Act. It appears that the appellants have overlooked the provisions of the Punjab State Election Commission Act, 1994 which deals with the constitution of the State Election Commission and for vesting the superintendence, direction and control of the preparation of the electoral rolls for and in the conduct of all elections to the Panchayat and Municipalities in the State of Punjab and to provide for all matters relating to or ancillary or in connection with the provisions of the Panchayat and Municipalities in terms of the provisions of Part IX and IXA of the Constitution. Chapter IV in general and Section 11 in particular deals with the disqualifications for Membership of a Panchayat or Municipality. Section 11 reads: "Disqualifications for membership of a Panchayat or a Municipality - A person shall be disqualified for being chosen as, and for being a member of a Panchayat or a Municipality,- (a) if he is not a citizen of India, or has voluntarily acquired the citizenship of a foreign State, or is under any acknowledgement of allegiance or adherence to a foreign State; or (b) if he is of unsound mind and stands so declared by a competent court; or (c) if he is an undischarged insolvent; or (d) if he has, in proceedings for questioning the validity or regularity of an election, been found guilty of any corrupt practice; or (e) if he has been found guilty of any offence punishable under Section 153A or Section 171E or Section 171F or Section 376 or Section 376A or Section 376B or Section 376C or Section 376D or Section 498A or Section 505 of the Indian Penal Code, 1960 or any offence punishable under Chapter XIII of this Act unless a period of six years has elapsed since the date of such conviction; or (f) if he holds an office of profit under a Panchayat or a Municipality; or (g) if he holds an office of profit under the Government of India or any State Government; or (h) if he is interested in any subsisting contract made with, or any work being done for, that Panchayat or Municipality except as a share-holder (other than a Director) in an incorporated company or as a member of a cooperative society; or (i) if he is retained or employed in any professional capacity either personally or in the name of a firm in which he is a partner, or with which he is engaged in a professional capacity, in connection with any cause or proceeding in which the Panchayat or the Municipality is interested or concerned; or (j) if he, having held any office under the State Government or any Panchayat or any Municipality or any other State level authority or any Government company or any corporate body owned or controlled by the State Government or Government of India, has been dismissed from service, unless a period of four years has elapsed since his dismissal." 12. Disqualification contemplated "under any law for the time being in force" under proviso to sub-section (2) of Section 24 are, therefore, the disqualification as mentioned in Section 11 of the Punjab State Election Commission Act, 1994. The appellants have nowhere stated or alleged any such disqualifications attributable to the respondent No. 1. 13. We also do not accept the plea of the appellants that by assuming his duties as President, the respondent had allegedly, "flagrantly abused" his position as a member, thereby incurring the wrath of the State Government in terms of Section 16(1)(e) or Section 20 of the Act. The clause "flagrantly abused of his position as member" means the doing of such act or acts by a member of a committee in disregard of his duty which would shock a reasonable mind. The nature of the `abuse before it could be termed as `flagrant, must, in the circumstance be glaring, notorious, enormous, scandalous or wicked. There is nothing on record to show or suggest that the respondent No. 1 in his capacity as member or President took any undue advantage of his position or under the colour of his office committed any particular irregularity or reprehensive acts. Any alleged contravention of the provisions of the Act cannot be categorised as "flagrant abuse of power" by a member of the Committee. The mere contravention, if any, (which was not in this case) in respondent No. 1 entering upon his office as President before his name was approved and published in the Official Gazette, particularly on account of wilful omission of the State Government cannot be called either a `flagrant abuse of position as a member or `abuse of power within the contemplation of Section 16(1)(e) and Section 20 of the Act. 14. The appeal which is bereft of any merit is liable to be dismissed. We are at pain to note that by his acts of omission and commission the said Secretary has consistently and persistently deprived the respondent No. 1 of the duty to assume and discharge his duties as member and President of the Municipal Council, despite his election from 2.1.1998 till date. The term of the office of the Municipality is a fixed term out of which three years of the respondent No. 1 have been wasted in uncalled for and forced litigation upon him. No law can compensate the loss of opportunity provided to the respondent No. 1 for serving the people after his election as Member and President of the Municipality. We find it a fit case to award exemplary costs and are of the firm view that such costs should not be burdened upon the State exchequer. The said Secretary who is responsible for the violation of the statutory provisions and weakening the concept of rule of law, is, therefore, personally liable to pay the costs from his own pockets. While dismissing this appeal we direct the said Secretary to personally pay the costs of Rs. 25,000/- to the respondent No. 1 within a period of two months.
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0
### Explanation:
13. We also do not accept the plea of the appellants that by assuming his duties as President, the respondent had allegedly, "flagrantly abused" his position as a member, thereby incurring the wrath of the State Government in terms of Section 16(1)(e) or Section 20 of the Act. The clause "flagrantly abused of his position as member" means the doing of such act or acts by a member of a committee in disregard of his duty which would shock a reasonable mind. The nature of the `abuse before it could be termed as `flagrant, must, in the circumstance be glaring, notorious, enormous, scandalous or wicked. There is nothing on record to show or suggest that the respondent No. 1 in his capacity as member or President took any undue advantage of his position or under the colour of his office committed any particular irregularity or reprehensive acts. Any alleged contravention of the provisions of the Act cannot be categorised as "flagrant abuse of power" by a member of the Committee. The mere contravention, if any, (which was not in this case) in respondent No. 1 entering upon his office as President before his name was approved and published in the Official Gazette, particularly on account of wilful omission of the State Government cannot be called either a `flagrant abuse of position as a member or `abuse of power within the contemplation of Section 16(1)(e) and Section 20 of the Act.The appeal which is bereft of any merit is liable to be dismissed. We are at pain to note that by his acts of omission and commission the said Secretary has consistently and persistently deprived the respondent No. 1 of the duty to assume and discharge his duties as member and President of the Municipal Council, despite his election from 2.1.1998 till date. The term of the office of the Municipality is a fixed term out of which three years of the respondent No. 1 have been wasted in uncalled for and forced litigation upon him. No law can compensate the loss of opportunity provided to the respondent No. 1 for serving the people after his election as Member and President of the Municipality. We find it a fit case to award exemplary costs and are of the firm view that such costs should not be burdened upon the State exchequer. The said Secretary who is responsible for the violation of the statutory provisions and weakening the concept of rule of law, is, therefore, personally liable to pay the costs from his own pockets. While dismissing this appeal we direct the said Secretary to personally pay the costs of Rs. 25,000/- to the respondent No. 1 within a period of two months.
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C.P. Sikh Regular Motor Service Etc Vs. The State Of Maharashtra & Others | clear that a scheme under Section 68-C can be framed only is relation to an area or route or part thereof (see Dosa Satyanarayanmurty etc. v. The Andhra Pradesh State Road Transport Corpn., (1961) 1 SCR 642 at p. 664 = (AIR 1961 SC 82 ).15. We do not think that the word "area" occurring in Section 68-C has the same meaning as the word route in the section. When Section 68-C talks or areas or route or part thereof, it is not to be presumed that the legislature made no distinction between area and route. No doubt, a route must necessarily run over an area but, for that reason, one cannot equate an area to be route. An area simpliciter is certainly not a route. Its potentiality to become a route would not make it a route. A route is an area plus something more. At any rate, there in no justification for making an assumption that the legislature, in the context of Section 68-C did not want to make any distinction between area and route. In Dosa Satyanarayanamurthys case (1961) 1 SCR 642 at p. 664 = (AIR 1961 SC 82 ). Subba Rao, J., observed :"Under Section 68-C of the Act the scheme may be framed in respect of any area or a route or a portion of any area of a portion of a route. There is no inherent inconsistency between an area and a route. The proposed route is also an area limited to the route proposed. The scheme may as well propose to operate a transport service in respect of a new route from point A to point B and that route would certainly be an area within the meaning of Section 68-C."16. There can be no dispute that a route postulates an area. But, for that reason as we said, it is difficult to maintain that the legislature made no distinction between the two. In Section 2 (1) the definition is only of the word area. That definition does not speak of any route. By Act 56 of 1969, the legislature has defined the expression route in Section 2 (28-A).That reads :"route means a line of travel which specifies the highway which may be traversed by a motor vehicle between one terminus and another".Certainly, the line of travel which specifies the highway which may be traversed by a motor vehicle is an area, but nevertheless, the two are distinct. Otherwise, the legislature would not have found it necessary to provide a separate definition clause for route.17. If, therefore, in respect of a scheme in relation to a route or routes, it is not necessary that the State Government should make a notification specifying the route or routes we fail to understand the reason why the State Government should specify the area by a notification in the gazette for framing a scheme in relation to an area. In other words, it is impossible to understand the rationale behind the distinction why when a scheme is framed in relation to an area a notification in the gazette specifying its extent is necessary and why when it is framed in relation to a route or routes a notification specifying the route or routes is not required. When Section 68-C says "where any State Transport Undertaking is of opinion that ... it is necessary in the public interest that road transport services in general or any particular class of such service in relation to any area or route or portion thereof should be run and operated by the State Transport Undertaking", it means, in the context of the present case, that the Corporation has to form an opinion whether it is necessary in the public interest that road transport services should be nationalized in relation to any area or route. We are aware of a plausible construction of the section which would enable the corporation to form an opinion only as to the necessity in the public interest of a scheme in relation to an area specified in the notification by the State Government. But we think, it comports more with the legislative purpose to hold that the State transport undertaking is invested with the discretion to select the area in relation to which it will frame the scheme than to hold that discretion has been vested in the State Government.18. If, in forming an opinion with respect to the necessity of a scheme in relation to a route or routes the power of State transport undertaking and therefore of the corporation, is untrammelled by an outside authority like the State Government, we fail to see why it cannot form an opinion as to the necessity of a scheme in relation to any area in the State.19. As the corporation here was established for the would of the State of Maharashtra, it was within it power to form as opinion as to necessity of a scheme in relation to any area or route within the State. We hold that there is no substance in the first contention of the appellant.20. The second point urged on behalf of the appellants was that a scheme framed under Section 68-C should specify all the necessary particulars and as it did not specify the minimum and maximum number of vehicles to be put on a route as also the minimum and maximum trips in respect of each route, the scheme was invalid. The decision of this court in Aswathnarayana Singh v. State of Mysore. (1966) 1 SCR 87 at pp. 92-94 = (AIR 1965 SC 1884) was relied on in support of this contention.20. In the first place, this contention was not taken before the State Government in the objections filed by the appellants to the scheme. Quite apart from that, we think that there is no factual foundation for the contention. The approved scheme specifies the minimum and maximum number of vehicles to be put on a route as also the minimum and maximum trips in respect of each route. | 0[ds]10. We are not quite sure whether the language of the definition clause is suceptible of the construction contended for by the learned Attorney General. We are inclined to think that the discretion that is vested in the State Government is only with respect to the specification of the extent of the area in the notification having regard to the requirement of the section in which the word area occurs. That discretion has nothing to do with the necessity or otherwise of a notification specifying the area. In other words, the discretion of the State Government is confined to the specification of the extent of the area, having regard to the requirement of the section where the word area occurs and not to the necessity or otherwise of the notification in the gazette specifying the area.11. Be that as it may, we do not think it necessary to resolve this question in this case, as in our view the word area occurring in Section 68-C does not, in the context, require specification by a notification in the gazette by the State Government. To put it differently, we do not think that in the context of Section 68-C the word area means an area specified by the State Government in a notification in the gazetter in accordance with the substantive part of the definition clause. The context in which the word occurs makes the application of the substantive part of the definition repugnant.If, therefore, in respect of a scheme in relation to a route or routes, it is not necessary that the State Government should make a notification specifying the route or routes we fail to understand the reason why the State Government should specify the area by a notification in the gazette for framing a scheme in relation to an area. In other words, it is impossible to understand the rationale behind the distinction why when a scheme is framed in relation to an area a notification in the gazette specifying its extent is necessary and why when it is framed in relation to a route or routes a notification specifying the route or routes is not required. When Section 68-C says "where any State Transport Undertaking is of opinion that ... it is necessary in the public interest that road transport services in general or any particular class of such service in relation to any area or route or portion thereof should be run and operated by the State Transport Undertaking", it means, in the context of the present case, that the Corporation has to form an opinion whether it is necessary in the public interest that road transport services should be nationalized in relation to any area or route. We are aware of a plausible construction of the section which would enable the corporation to form an opinion only as to the necessity in the public interest of a scheme in relation to an area specified in the notification by the State Government. But we think, it comports more with the legislative purpose to hold that the State transport undertaking is invested with the discretion to select the area in relation to which it will frame the scheme than to hold that discretion has been vested in the State Government.18. If, in forming an opinion with respect to the necessity of a scheme in relation to a route or routes the power of State transport undertaking and therefore of the corporation, is untrammelled by an outside authority like the State Government, we fail to see why it cannot form an opinion as to the necessity of a scheme in relation to any area in the State.19. As the corporation here was established for the would of the State of Maharashtra, it was within it power to form as opinion as to necessity of a scheme in relation to any area or route within the State. We hold that there is no substance in the first contention of the appellant. | 0 | 2,527 | 702 | ### 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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clear that a scheme under Section 68-C can be framed only is relation to an area or route or part thereof (see Dosa Satyanarayanmurty etc. v. The Andhra Pradesh State Road Transport Corpn., (1961) 1 SCR 642 at p. 664 = (AIR 1961 SC 82 ).15. We do not think that the word "area" occurring in Section 68-C has the same meaning as the word route in the section. When Section 68-C talks or areas or route or part thereof, it is not to be presumed that the legislature made no distinction between area and route. No doubt, a route must necessarily run over an area but, for that reason, one cannot equate an area to be route. An area simpliciter is certainly not a route. Its potentiality to become a route would not make it a route. A route is an area plus something more. At any rate, there in no justification for making an assumption that the legislature, in the context of Section 68-C did not want to make any distinction between area and route. In Dosa Satyanarayanamurthys case (1961) 1 SCR 642 at p. 664 = (AIR 1961 SC 82 ). Subba Rao, J., observed :"Under Section 68-C of the Act the scheme may be framed in respect of any area or a route or a portion of any area of a portion of a route. There is no inherent inconsistency between an area and a route. The proposed route is also an area limited to the route proposed. The scheme may as well propose to operate a transport service in respect of a new route from point A to point B and that route would certainly be an area within the meaning of Section 68-C."16. There can be no dispute that a route postulates an area. But, for that reason as we said, it is difficult to maintain that the legislature made no distinction between the two. In Section 2 (1) the definition is only of the word area. That definition does not speak of any route. By Act 56 of 1969, the legislature has defined the expression route in Section 2 (28-A).That reads :"route means a line of travel which specifies the highway which may be traversed by a motor vehicle between one terminus and another".Certainly, the line of travel which specifies the highway which may be traversed by a motor vehicle is an area, but nevertheless, the two are distinct. Otherwise, the legislature would not have found it necessary to provide a separate definition clause for route.17. If, therefore, in respect of a scheme in relation to a route or routes, it is not necessary that the State Government should make a notification specifying the route or routes we fail to understand the reason why the State Government should specify the area by a notification in the gazette for framing a scheme in relation to an area. In other words, it is impossible to understand the rationale behind the distinction why when a scheme is framed in relation to an area a notification in the gazette specifying its extent is necessary and why when it is framed in relation to a route or routes a notification specifying the route or routes is not required. When Section 68-C says "where any State Transport Undertaking is of opinion that ... it is necessary in the public interest that road transport services in general or any particular class of such service in relation to any area or route or portion thereof should be run and operated by the State Transport Undertaking", it means, in the context of the present case, that the Corporation has to form an opinion whether it is necessary in the public interest that road transport services should be nationalized in relation to any area or route. We are aware of a plausible construction of the section which would enable the corporation to form an opinion only as to the necessity in the public interest of a scheme in relation to an area specified in the notification by the State Government. But we think, it comports more with the legislative purpose to hold that the State transport undertaking is invested with the discretion to select the area in relation to which it will frame the scheme than to hold that discretion has been vested in the State Government.18. If, in forming an opinion with respect to the necessity of a scheme in relation to a route or routes the power of State transport undertaking and therefore of the corporation, is untrammelled by an outside authority like the State Government, we fail to see why it cannot form an opinion as to the necessity of a scheme in relation to any area in the State.19. As the corporation here was established for the would of the State of Maharashtra, it was within it power to form as opinion as to necessity of a scheme in relation to any area or route within the State. We hold that there is no substance in the first contention of the appellant.20. The second point urged on behalf of the appellants was that a scheme framed under Section 68-C should specify all the necessary particulars and as it did not specify the minimum and maximum number of vehicles to be put on a route as also the minimum and maximum trips in respect of each route, the scheme was invalid. The decision of this court in Aswathnarayana Singh v. State of Mysore. (1966) 1 SCR 87 at pp. 92-94 = (AIR 1965 SC 1884) was relied on in support of this contention.20. In the first place, this contention was not taken before the State Government in the objections filed by the appellants to the scheme. Quite apart from that, we think that there is no factual foundation for the contention. The approved scheme specifies the minimum and maximum number of vehicles to be put on a route as also the minimum and maximum trips in respect of each route.
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0
### Explanation:
10. We are not quite sure whether the language of the definition clause is suceptible of the construction contended for by the learned Attorney General. We are inclined to think that the discretion that is vested in the State Government is only with respect to the specification of the extent of the area in the notification having regard to the requirement of the section in which the word area occurs. That discretion has nothing to do with the necessity or otherwise of a notification specifying the area. In other words, the discretion of the State Government is confined to the specification of the extent of the area, having regard to the requirement of the section where the word area occurs and not to the necessity or otherwise of the notification in the gazette specifying the area.11. Be that as it may, we do not think it necessary to resolve this question in this case, as in our view the word area occurring in Section 68-C does not, in the context, require specification by a notification in the gazette by the State Government. To put it differently, we do not think that in the context of Section 68-C the word area means an area specified by the State Government in a notification in the gazetter in accordance with the substantive part of the definition clause. The context in which the word occurs makes the application of the substantive part of the definition repugnant.If, therefore, in respect of a scheme in relation to a route or routes, it is not necessary that the State Government should make a notification specifying the route or routes we fail to understand the reason why the State Government should specify the area by a notification in the gazette for framing a scheme in relation to an area. In other words, it is impossible to understand the rationale behind the distinction why when a scheme is framed in relation to an area a notification in the gazette specifying its extent is necessary and why when it is framed in relation to a route or routes a notification specifying the route or routes is not required. When Section 68-C says "where any State Transport Undertaking is of opinion that ... it is necessary in the public interest that road transport services in general or any particular class of such service in relation to any area or route or portion thereof should be run and operated by the State Transport Undertaking", it means, in the context of the present case, that the Corporation has to form an opinion whether it is necessary in the public interest that road transport services should be nationalized in relation to any area or route. We are aware of a plausible construction of the section which would enable the corporation to form an opinion only as to the necessity in the public interest of a scheme in relation to an area specified in the notification by the State Government. But we think, it comports more with the legislative purpose to hold that the State transport undertaking is invested with the discretion to select the area in relation to which it will frame the scheme than to hold that discretion has been vested in the State Government.18. If, in forming an opinion with respect to the necessity of a scheme in relation to a route or routes the power of State transport undertaking and therefore of the corporation, is untrammelled by an outside authority like the State Government, we fail to see why it cannot form an opinion as to the necessity of a scheme in relation to any area in the State.19. As the corporation here was established for the would of the State of Maharashtra, it was within it power to form as opinion as to necessity of a scheme in relation to any area or route within the State. We hold that there is no substance in the first contention of the appellant.
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M/S Young Achievers Vs. Ims Learning Resources Pvt.Ltd | the parties that the appellant shall not be eligible to use -the trade mark IMS in any form and any breach thereof entitles respondent to seek legal recourse on violation of trade mark IMS. 6. We are of the view that survival of the arbitration clause, as sought by the appellant in the agreements dated 01.04.2007 and 01.04.2010 has to be seen in the light of the terms and conditions of the new agreement dated 01.02.2011. An arbitration clause in an agreement cannot survive if the agreement containing arbitration clause has been superseded/novated by a later agreement. The agreement dated 01.04.2010 contained the following arbitration clause: “20. Arbitration All disputes and questions whatsoever which may arise, either during the substance of this agreement or afterwards, between the parties shall be referred to the arbitration of trhe managing director of IMS Learning Resources Pvt. Ltd. Or his nominee and such arbitration shall be in the English language at Mumbai. The arbitration shall be governed by the provisions of the Arbitration and Conciliation Act, 1996 or any other statutory modification or re-enactment thereof for the time being in force and award or awards of such arbitrator shall be binding on all the parties to the said dispute.” 7. We have now to examine terms of the subsequent agreement titled “Exit paper” dated 01.02.2011. It is the common case of the parties that the Exit paper/agreement entered into -between the parties does not contain any arbitration clause. It is useful to extract the relevant portion of the Exit paper, which is as follow: “With reference to your mail/letter dated 1st February, 2011 on closing the center, from the aforesaid date with mutual consent we have agreed on the following:“1. Enrolled studentsAll enrolled students of IMS with you will be serviced by you with respect to their classes, workshops and conduct of test series, GD/PI and any other servicing required as per the product manual.2. PremisesIMS will reserve the first right of utilization to occupy the premises. In an eventuality of IMS exercising the right to use the premises, then IMS will reimburse the monthly rent for the corresponding months before changing the rental agreement onto IMS name.3. MarketingFrom the above-mentioned date you are not eligible to do any marketing and promotional activities in the name of IMS.4. Brand“From the above-mentioned date you are not eligible to use IMS brand in any form.5. Monthly claimsThe partner abides to deposit all the course fees collected for any of IMS programs till now as per the deposit policy of IMS. All monthly claims will be settled till 31st January, 2011 and the claims would be - released after the date of termination of the partner agreement.6. Security DepositThe security deposit amount will be refunded back to you after the completion of servicing of all enrolled IMS students. In case of any due on partner to the company (unsettled fees, loan or advance for centre activities etc.), same amount will be deducted from the security deposit.7. Non Compete ClauseThe partner has averred that neither he, nor his family members are directly or indirectly interested in any business in direct competition with that of IMS and the partner agrees and undertakes to ensure that neither he nor his family members shall be involved in or connected to any business in direct competition with that of IMS at any time during the currency of this agreement and for a further period of six months therafter.8. Full and final settlementI/We accept all the above-mentioned points and confirm that upon receipt of the sum stated hereinafter in full and final settlement of all my/our claims, neither me/we nor any person claiming by or through me/us shall have any further claims against IMS whatsoever.Any violation of points 1,3,4,5 & 7 from the partner’s end will attract legal course of action and penalties from IMS ranging from forfeiture of the security deposit & pending claims. I hereby accept above terms and conditions.” 8. Exit paper would clearly indicate that it is a mutually agreed document containing comprehensive terms and conditions which –admittedly does not contain an arbitration clause. We are of the view that the High Court is right in taking the view that in the case on hand, is not a case involving assertion by the respondent of accord a satisfaction in respect of the earlier contracts dated 01.04.2007 and 01.04.2010. If that be so, it could have referred to arbitrator in terms of those two agreements going by the dictum in Union of India v. Kishorilal Gupta and Bros. AIR 1959 SC 1362 . This Court in Kishorilal Gupta’s case (supra) examined the question whether an arbitration clause can be invoked in the case of a dispute under a superseded contract. The principle laid down is that if the contract is superseded by another, the arbitration clause, being a component part of the earlier contract, falls with it. But where the dispute is whether such contract is void ab intio, the arbitration clause cannot operate on those disputes, for its operative force depends upon the existence of the contract and its validity. The various other observations were made by this Court in the above-mentioned judgment in respect of “settlement of disputes arising under the original contract, including the dispute as to the breach of the contract and its consequences”. Principle laid down by the House of Lords in Heyman v. Darwins Limited 1942 (1) All. E.R. -337 was also relied on by this Court for its conclusion. The Collective bargaining principle laid down by the US Supreme Court in Nolde Bros. case (supra) would not apply to the facts of the present case. 9. We may indicate that so far as the present case is concerned, parties have entered into a fresh contract contained in the Exit paper which does not even indicate any disputes arising under the original contract or about the settlement thereof, it is nothing but a pure and simple novation of the original contract by mutual consent. | 0[ds]We are of the view that survival of the arbitration clause, as sought by the appellant in the agreements dated 01.04.2007 and 01.04.2010 has to be seen in the light of the terms and conditions of the new agreement dated 01.02.2011. An arbitration clause in an agreement cannot survive if the agreement containing arbitration clause has been superseded/novated by a later agreement. The agreement dated 01.04.2010 contained the following arbitrationArbitration All disputes and questions whatsoever which may arise, either during the substance of this agreement or afterwards, between the parties shall be referred to the arbitration of trhe managing director of IMS Learning Resources Pvt. Ltd. Or his nominee and such arbitration shall be in the English language at Mumbai. The arbitration shall be governed by the provisions of the Arbitration and Conciliation Act, 1996 or any other statutory modification or re-enactment thereof for the time being in force and award or awards of such arbitrator shall be binding on all the parties to the saidare of the view that the High Court is right in taking the view that in the case on hand, is not a case involving assertion by the respondent of accord a satisfaction in respect of the earlier contracts dated 01.04.2007 and 01.04.2010. If that be so, it could have referred to arbitrator in terms of those two agreements going by the dictum in Union of India v. Kishorilal Gupta and Bros. AIR 1959 SC 1362 . This Court in Kishorilalcase (supra) examined the question whether an arbitration clause can be invoked in the case of a dispute under a superseded contract. The principle laid down is that if the contract is superseded by another, the arbitration clause, being a component part of the earlier contract, falls with it. But where the dispute is whether such contract is void ab intio, the arbitration clause cannot operate on those disputes, for its operative force depends upon the existence of the contract and its validity. The various other observations were made by this Court in the above-mentioned judgment in respect ofof disputes arising under the original contract, including the dispute as to the breach of the contract and itsPrinciple laid down by the House of Lords in Heymanv. Darwins Limited 1942 (1) All. E.R. -337was also relied on by this Court for its conclusion. The Collective bargaining principle laid down by the US Supreme Court in Nolde Bros. case (supra) would not apply to the facts of the presentmay indicate that so far as the present case is concerned, parties have entered into a fresh contract contained in the Exit paper which does not even indicate any disputes arising under the original contract or about the settlement thereof, it is nothing but a pure and simple novation of the original contract by mutual consent. | 0 | 1,881 | 506 | ### 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 parties that the appellant shall not be eligible to use -the trade mark IMS in any form and any breach thereof entitles respondent to seek legal recourse on violation of trade mark IMS. 6. We are of the view that survival of the arbitration clause, as sought by the appellant in the agreements dated 01.04.2007 and 01.04.2010 has to be seen in the light of the terms and conditions of the new agreement dated 01.02.2011. An arbitration clause in an agreement cannot survive if the agreement containing arbitration clause has been superseded/novated by a later agreement. The agreement dated 01.04.2010 contained the following arbitration clause: “20. Arbitration All disputes and questions whatsoever which may arise, either during the substance of this agreement or afterwards, between the parties shall be referred to the arbitration of trhe managing director of IMS Learning Resources Pvt. Ltd. Or his nominee and such arbitration shall be in the English language at Mumbai. The arbitration shall be governed by the provisions of the Arbitration and Conciliation Act, 1996 or any other statutory modification or re-enactment thereof for the time being in force and award or awards of such arbitrator shall be binding on all the parties to the said dispute.” 7. We have now to examine terms of the subsequent agreement titled “Exit paper” dated 01.02.2011. It is the common case of the parties that the Exit paper/agreement entered into -between the parties does not contain any arbitration clause. It is useful to extract the relevant portion of the Exit paper, which is as follow: “With reference to your mail/letter dated 1st February, 2011 on closing the center, from the aforesaid date with mutual consent we have agreed on the following:“1. Enrolled studentsAll enrolled students of IMS with you will be serviced by you with respect to their classes, workshops and conduct of test series, GD/PI and any other servicing required as per the product manual.2. PremisesIMS will reserve the first right of utilization to occupy the premises. In an eventuality of IMS exercising the right to use the premises, then IMS will reimburse the monthly rent for the corresponding months before changing the rental agreement onto IMS name.3. MarketingFrom the above-mentioned date you are not eligible to do any marketing and promotional activities in the name of IMS.4. Brand“From the above-mentioned date you are not eligible to use IMS brand in any form.5. Monthly claimsThe partner abides to deposit all the course fees collected for any of IMS programs till now as per the deposit policy of IMS. All monthly claims will be settled till 31st January, 2011 and the claims would be - released after the date of termination of the partner agreement.6. Security DepositThe security deposit amount will be refunded back to you after the completion of servicing of all enrolled IMS students. In case of any due on partner to the company (unsettled fees, loan or advance for centre activities etc.), same amount will be deducted from the security deposit.7. Non Compete ClauseThe partner has averred that neither he, nor his family members are directly or indirectly interested in any business in direct competition with that of IMS and the partner agrees and undertakes to ensure that neither he nor his family members shall be involved in or connected to any business in direct competition with that of IMS at any time during the currency of this agreement and for a further period of six months therafter.8. Full and final settlementI/We accept all the above-mentioned points and confirm that upon receipt of the sum stated hereinafter in full and final settlement of all my/our claims, neither me/we nor any person claiming by or through me/us shall have any further claims against IMS whatsoever.Any violation of points 1,3,4,5 & 7 from the partner’s end will attract legal course of action and penalties from IMS ranging from forfeiture of the security deposit & pending claims. I hereby accept above terms and conditions.” 8. Exit paper would clearly indicate that it is a mutually agreed document containing comprehensive terms and conditions which –admittedly does not contain an arbitration clause. We are of the view that the High Court is right in taking the view that in the case on hand, is not a case involving assertion by the respondent of accord a satisfaction in respect of the earlier contracts dated 01.04.2007 and 01.04.2010. If that be so, it could have referred to arbitrator in terms of those two agreements going by the dictum in Union of India v. Kishorilal Gupta and Bros. AIR 1959 SC 1362 . This Court in Kishorilal Gupta’s case (supra) examined the question whether an arbitration clause can be invoked in the case of a dispute under a superseded contract. The principle laid down is that if the contract is superseded by another, the arbitration clause, being a component part of the earlier contract, falls with it. But where the dispute is whether such contract is void ab intio, the arbitration clause cannot operate on those disputes, for its operative force depends upon the existence of the contract and its validity. The various other observations were made by this Court in the above-mentioned judgment in respect of “settlement of disputes arising under the original contract, including the dispute as to the breach of the contract and its consequences”. Principle laid down by the House of Lords in Heyman v. Darwins Limited 1942 (1) All. E.R. -337 was also relied on by this Court for its conclusion. The Collective bargaining principle laid down by the US Supreme Court in Nolde Bros. case (supra) would not apply to the facts of the present case. 9. We may indicate that so far as the present case is concerned, parties have entered into a fresh contract contained in the Exit paper which does not even indicate any disputes arising under the original contract or about the settlement thereof, it is nothing but a pure and simple novation of the original contract by mutual consent.
### Response:
0
### Explanation:
We are of the view that survival of the arbitration clause, as sought by the appellant in the agreements dated 01.04.2007 and 01.04.2010 has to be seen in the light of the terms and conditions of the new agreement dated 01.02.2011. An arbitration clause in an agreement cannot survive if the agreement containing arbitration clause has been superseded/novated by a later agreement. The agreement dated 01.04.2010 contained the following arbitrationArbitration All disputes and questions whatsoever which may arise, either during the substance of this agreement or afterwards, between the parties shall be referred to the arbitration of trhe managing director of IMS Learning Resources Pvt. Ltd. Or his nominee and such arbitration shall be in the English language at Mumbai. The arbitration shall be governed by the provisions of the Arbitration and Conciliation Act, 1996 or any other statutory modification or re-enactment thereof for the time being in force and award or awards of such arbitrator shall be binding on all the parties to the saidare of the view that the High Court is right in taking the view that in the case on hand, is not a case involving assertion by the respondent of accord a satisfaction in respect of the earlier contracts dated 01.04.2007 and 01.04.2010. If that be so, it could have referred to arbitrator in terms of those two agreements going by the dictum in Union of India v. Kishorilal Gupta and Bros. AIR 1959 SC 1362 . This Court in Kishorilalcase (supra) examined the question whether an arbitration clause can be invoked in the case of a dispute under a superseded contract. The principle laid down is that if the contract is superseded by another, the arbitration clause, being a component part of the earlier contract, falls with it. But where the dispute is whether such contract is void ab intio, the arbitration clause cannot operate on those disputes, for its operative force depends upon the existence of the contract and its validity. The various other observations were made by this Court in the above-mentioned judgment in respect ofof disputes arising under the original contract, including the dispute as to the breach of the contract and itsPrinciple laid down by the House of Lords in Heymanv. Darwins Limited 1942 (1) All. E.R. -337was also relied on by this Court for its conclusion. The Collective bargaining principle laid down by the US Supreme Court in Nolde Bros. case (supra) would not apply to the facts of the presentmay indicate that so far as the present case is concerned, parties have entered into a fresh contract contained in the Exit paper which does not even indicate any disputes arising under the original contract or about the settlement thereof, it is nothing but a pure and simple novation of the original contract by mutual consent.
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Gauri Shankar Chandrabhan Vs. Commissioner of Income Tax, U.P., Lucknow | his order dated March 26, 1962, passed under section 25A of the Act and the Act did not provide any machinery for imposition of the penalty on the Hindu family after its disruption, the imposition of penalty on March 20, 1958, was bad in law and could not be sustained. Counsel appearing on behalf of the revenue has, on the other hand, urged that imposition of the impugned penalty cannot be challenged as, in view of section 25A(3) of the Act, a Hindu undivided family must be deemed to have continued in existence till the date of the passing of the order under section 25A(1) of the Act. 4. For a proper determination of the question, it is necessary to refer to section 25A of the Act which at the relevant time stood as under:"25A. (1) Where, at the time of making an assessment under section 23, it is claimed by or on behalf of any member of a Hindu family hitherto assessed as undivided that a partition has taken place among the members of such family, the Income-tax Officer shall make such inquiry thereinto as he may think fit, and, if he is satisfied that the joint family property has been partitioned among the various members or groups of members in definite portions, he shall record an order to that effectrovided that no such order shall be recorded until notices of the inquiry have, been served on all the members of the family. (2) Where such an order has been passed, or where any person has succeeded to a business, profession or vocation formerly carried on by a Hindu undivided family, whose joint family property has been partitioned on or after the last day on which it carried on such business, profession or vocation, the Income-tax Officer shall make an assessment of the total income received by or on behalf of the joint family as such, as if no partition had taken place, and each member or group of members shall, in addition to any income-tax for which he or it may be separately liable and notwithstanding anything contained in sub-section (1) of section 14, be liable for a share of the tax on the income so assessed according to the portion of the joint family property allotted to him or it; and the Income-tax Officer shall make assessments accordingly on the various members and groups of members in accordance with the provisions of section 23. Provided that all the members and groups of members whose joint family property has been partitioned shall be liable jointly and severally for the tax assessed on the total income received by or on behalf of the joint family as such (3) Where such an order has not been passed in respect of a Hindu family hitherto assessed as undivided, such family shall be deemed, for the purposes of this Act, to continue to be a Hindu undivided family." 5. It will be noticed that sub-section (3) of the above-quoted section embodies a legal fiction according to which a Hindu family which has been previously assessed as "undivided" is to be continued to be treated as "undivided" till the passing of the order under sub-section (1) of the, section. This view gains strength from two decisions of this court in Additional Income-tax Officer, Cuddappah v. A. Thimmayya and joint Family of Udayan Chinubhai, etc. v. Commissioer of Income-tax, where it was held that so long as no order under Section 25A(1) of the Act is recorded, the jurisdiction of the Income-tax Officer to continue to assess as undivided despite partition under personal law a Hindu family which has hitherto been assessed in that status remains unaffected. It will be profitable in this connection to refer to the following observations made in A. Thimmayyas case"The section makes two substantive provisions--(i) that a Hindu undivided family which has been assessed to tax shall be deemed, for the purposes of the Act, to continue to be treated as undivided and, therefore, liable to be taxed in that status unless an order is passed in respect of that family recording partition of its property as contemplated by sub-section (1); and (ii) if at the time of making an assessment it is claimed by or on behalf of the members of the family that the property of the joint family has been partitioned among the members or groups of members in definite portions, i.e., a complete partition of the entire estate is made, resulting in such physical division of the estate as it is capable of being made, the Income-tax Officer shall hold an inquiry, and if he is satisfied that the partition had taken place, he shall record an order to that effect ...... The Income-tax Officer may assess the income of the Hindu family hitherto assessed as undivided notwithstanding partition, if no claim in that behalf has been made to him or if he is not satisfied about the truth of the claim that the joint family property has been partitioned in definite portions, or if on account of some error or inadvertence he fails to dispose of the claim. In all these cases his jurisdiction to assess the income of the family hitherto assessed as undivided remains unaffected, for the procedure for making assessment of tax is statutory." 6. In the face of the aforesaid decisions of this court, it is not necessary to burden the record by discussing the decisions cited by counsel for the appellant. 7. In the present case, there was not a whisper of the application under section 25A(1) of the Act by the appellant on March 15, 1957, when the penalty proceedings were initiated against it. Even on March 25, 1958, when the penalty was imposed, there was no order under section 25A(1) of the Act. It was only on March 26, 1962, that the partition was recognised and order under section 25A(1) of the Act was passed. There was thus no bar to the imposition of the impugned penalty. | 0[ds]It will be noticed that sub-section (3) of the above-quoted section embodies a legal fiction according to which a Hindu family which has been previously assessed as "undivided" is to be continued to be treated as "undivided" till the passing of the order under sub-section (1) of the, section. This view gains strength from two decisions of this court in Additional Income-tax Officer, Cuddappah v. A. Thimmayya and joint Family of Udayan Chinubhai, etc. v. Commissioer of Income-tax, where it was held that so long as no order under Section 25A(1) of the Act is recorded, the jurisdiction of the Income-tax Officer to continue to assess as undivided despite partition under personal law a Hindu family which has hitherto been assessed in that status remains unaffected. It will be profitable in this connection to refer to the following observations made in A. Thimmayyas case"The section makes two substantive provisions--(i) that a Hindu undivided family which has been assessed to tax shall be deemed, for the purposes of the Act, to continue to be treated as undivided and, therefore, liable to be taxed in that status unless an order is passed in respect of that family recording partition of its property as contemplated by sub-section (1); and (ii) if at the time of making an assessment it is claimed by or on behalf of the members of the family that the property of the joint family has been partitioned among the members or groups of members in definite portions, i.e., a complete partition of the entire estate is made, resulting in such physical division of the estate as it is capable of being made, the Income-tax Officer shall hold an inquiry, and if he is satisfied that the partition had taken place, he shall record an order to that effect ...... The Income-tax Officer may assess the income of the Hindu family hitherto assessed as undivided notwithstanding partition, if no claim in that behalf has been made to him or if he is not satisfied about the truth of the claim that the joint family property has been partitioned in definite portions, or if on account of some error or inadvertence he fails to dispose of the claim. In all these cases his jurisdiction to assess the income of the family hitherto assessed as undivided remains unaffected, for the procedure for making assessment of tax is statutory."In the face of the aforesaid decisions of this court, it is not necessary to burden the record by discussing the decisions cited by counsel for the appellantIn the present case, there was not a whisper of the application under section 25A(1) of the Act by the appellant on March 15, 1957, when the penalty proceedings were initiated against it. Even on March 25, 1958, when the penalty was imposed, there was no order under section 25A(1) of the Act. It was only on March 26, 1962, that the partition was recognised and order under section 25A(1) of the Act was passed. There was thus no bar to the imposition of the impugned penalty. | 0 | 2,048 | 582 | ### 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:
his order dated March 26, 1962, passed under section 25A of the Act and the Act did not provide any machinery for imposition of the penalty on the Hindu family after its disruption, the imposition of penalty on March 20, 1958, was bad in law and could not be sustained. Counsel appearing on behalf of the revenue has, on the other hand, urged that imposition of the impugned penalty cannot be challenged as, in view of section 25A(3) of the Act, a Hindu undivided family must be deemed to have continued in existence till the date of the passing of the order under section 25A(1) of the Act. 4. For a proper determination of the question, it is necessary to refer to section 25A of the Act which at the relevant time stood as under:"25A. (1) Where, at the time of making an assessment under section 23, it is claimed by or on behalf of any member of a Hindu family hitherto assessed as undivided that a partition has taken place among the members of such family, the Income-tax Officer shall make such inquiry thereinto as he may think fit, and, if he is satisfied that the joint family property has been partitioned among the various members or groups of members in definite portions, he shall record an order to that effectrovided that no such order shall be recorded until notices of the inquiry have, been served on all the members of the family. (2) Where such an order has been passed, or where any person has succeeded to a business, profession or vocation formerly carried on by a Hindu undivided family, whose joint family property has been partitioned on or after the last day on which it carried on such business, profession or vocation, the Income-tax Officer shall make an assessment of the total income received by or on behalf of the joint family as such, as if no partition had taken place, and each member or group of members shall, in addition to any income-tax for which he or it may be separately liable and notwithstanding anything contained in sub-section (1) of section 14, be liable for a share of the tax on the income so assessed according to the portion of the joint family property allotted to him or it; and the Income-tax Officer shall make assessments accordingly on the various members and groups of members in accordance with the provisions of section 23. Provided that all the members and groups of members whose joint family property has been partitioned shall be liable jointly and severally for the tax assessed on the total income received by or on behalf of the joint family as such (3) Where such an order has not been passed in respect of a Hindu family hitherto assessed as undivided, such family shall be deemed, for the purposes of this Act, to continue to be a Hindu undivided family." 5. It will be noticed that sub-section (3) of the above-quoted section embodies a legal fiction according to which a Hindu family which has been previously assessed as "undivided" is to be continued to be treated as "undivided" till the passing of the order under sub-section (1) of the, section. This view gains strength from two decisions of this court in Additional Income-tax Officer, Cuddappah v. A. Thimmayya and joint Family of Udayan Chinubhai, etc. v. Commissioer of Income-tax, where it was held that so long as no order under Section 25A(1) of the Act is recorded, the jurisdiction of the Income-tax Officer to continue to assess as undivided despite partition under personal law a Hindu family which has hitherto been assessed in that status remains unaffected. It will be profitable in this connection to refer to the following observations made in A. Thimmayyas case"The section makes two substantive provisions--(i) that a Hindu undivided family which has been assessed to tax shall be deemed, for the purposes of the Act, to continue to be treated as undivided and, therefore, liable to be taxed in that status unless an order is passed in respect of that family recording partition of its property as contemplated by sub-section (1); and (ii) if at the time of making an assessment it is claimed by or on behalf of the members of the family that the property of the joint family has been partitioned among the members or groups of members in definite portions, i.e., a complete partition of the entire estate is made, resulting in such physical division of the estate as it is capable of being made, the Income-tax Officer shall hold an inquiry, and if he is satisfied that the partition had taken place, he shall record an order to that effect ...... The Income-tax Officer may assess the income of the Hindu family hitherto assessed as undivided notwithstanding partition, if no claim in that behalf has been made to him or if he is not satisfied about the truth of the claim that the joint family property has been partitioned in definite portions, or if on account of some error or inadvertence he fails to dispose of the claim. In all these cases his jurisdiction to assess the income of the family hitherto assessed as undivided remains unaffected, for the procedure for making assessment of tax is statutory." 6. In the face of the aforesaid decisions of this court, it is not necessary to burden the record by discussing the decisions cited by counsel for the appellant. 7. In the present case, there was not a whisper of the application under section 25A(1) of the Act by the appellant on March 15, 1957, when the penalty proceedings were initiated against it. Even on March 25, 1958, when the penalty was imposed, there was no order under section 25A(1) of the Act. It was only on March 26, 1962, that the partition was recognised and order under section 25A(1) of the Act was passed. There was thus no bar to the imposition of the impugned penalty.
### Response:
0
### Explanation:
It will be noticed that sub-section (3) of the above-quoted section embodies a legal fiction according to which a Hindu family which has been previously assessed as "undivided" is to be continued to be treated as "undivided" till the passing of the order under sub-section (1) of the, section. This view gains strength from two decisions of this court in Additional Income-tax Officer, Cuddappah v. A. Thimmayya and joint Family of Udayan Chinubhai, etc. v. Commissioer of Income-tax, where it was held that so long as no order under Section 25A(1) of the Act is recorded, the jurisdiction of the Income-tax Officer to continue to assess as undivided despite partition under personal law a Hindu family which has hitherto been assessed in that status remains unaffected. It will be profitable in this connection to refer to the following observations made in A. Thimmayyas case"The section makes two substantive provisions--(i) that a Hindu undivided family which has been assessed to tax shall be deemed, for the purposes of the Act, to continue to be treated as undivided and, therefore, liable to be taxed in that status unless an order is passed in respect of that family recording partition of its property as contemplated by sub-section (1); and (ii) if at the time of making an assessment it is claimed by or on behalf of the members of the family that the property of the joint family has been partitioned among the members or groups of members in definite portions, i.e., a complete partition of the entire estate is made, resulting in such physical division of the estate as it is capable of being made, the Income-tax Officer shall hold an inquiry, and if he is satisfied that the partition had taken place, he shall record an order to that effect ...... The Income-tax Officer may assess the income of the Hindu family hitherto assessed as undivided notwithstanding partition, if no claim in that behalf has been made to him or if he is not satisfied about the truth of the claim that the joint family property has been partitioned in definite portions, or if on account of some error or inadvertence he fails to dispose of the claim. In all these cases his jurisdiction to assess the income of the family hitherto assessed as undivided remains unaffected, for the procedure for making assessment of tax is statutory."In the face of the aforesaid decisions of this court, it is not necessary to burden the record by discussing the decisions cited by counsel for the appellantIn the present case, there was not a whisper of the application under section 25A(1) of the Act by the appellant on March 15, 1957, when the penalty proceedings were initiated against it. Even on March 25, 1958, when the penalty was imposed, there was no order under section 25A(1) of the Act. It was only on March 26, 1962, that the partition was recognised and order under section 25A(1) of the Act was passed. There was thus no bar to the imposition of the impugned penalty.
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Southern Roadways Private Limited Vs. Union of India and Another | KAPUR, J.1. This is a petition by the assessee under Art. 32 of the Constitution challenging the constitutionality of the second proviso to s. 10(2) (vi-b) of Income tax Act introduced by The Taxation Laws (Amendment) Act (28 of 1960). The relevant section with the proviso is as follows:- S. 10(1) "The tax shall be payable by an assessee under the head "Profits and gains of business, profession or vocation" in respect of the profits or gains of any business, profession or vocation carried on by him. (2) Such profits or gains shall be computed after making the following allowances, namely:(vi-b) in respect of machinery or plant being new, which has been installed after the 31st day of March, 1954, and which is wholly used for the purposes of the business carried on by the assessee, a sum by way of development rebate in respect of the year of installation equivalent to twenty-five per cent of the actual cost of such machinery or plant to the assessee : Provided that no allowance under this clause shall be made unless the particulars prescribed for the purpose of clause (vi) have been furnished by the assessee in respect of such machinery or plant; Provided further that no allowance under this clause shall be made in respect of any machinery or plant which consist of office appliances or road transport vehicles."2. The petitioner is a limited company with its registered office at Madurai in the State of Madras which owns a fleet of buses and lorries and carries on the business of transport In respect of assessment year 1960-61 it claimed a development rebate on all its plants and machinery including business. The Income tax Officer disallowed the claim of rebate on transport vehicles under the proviso above quoted and computed the tax payable without such rebate. It was contended on behalf of the petitioner that the proviso offends Art. 14 in that it discriminates between machinery which is office appliance or road transport vehicles and other kind of machinery. It is difficult to accept such a contention because there is nothing in the Constitution which prevents the legislature from choosing the object of taxation from amongst various classes of machinery for the purpose of giving development rebate. The Constitution does not prohibit any such classification which has been made in the pressnt case. | 0[ds]It is difficult to accept such a contention because there is nothing in the Constitution which prevents the legislature from choosing the object of taxation from amongst various classes of machinery for the purpose of giving development rebate. The Constitution does not prohibit any such classification which has been made in the pressnt case. | 0 | 438 | 60 | ### 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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KAPUR, J.1. This is a petition by the assessee under Art. 32 of the Constitution challenging the constitutionality of the second proviso to s. 10(2) (vi-b) of Income tax Act introduced by The Taxation Laws (Amendment) Act (28 of 1960). The relevant section with the proviso is as follows:- S. 10(1) "The tax shall be payable by an assessee under the head "Profits and gains of business, profession or vocation" in respect of the profits or gains of any business, profession or vocation carried on by him. (2) Such profits or gains shall be computed after making the following allowances, namely:(vi-b) in respect of machinery or plant being new, which has been installed after the 31st day of March, 1954, and which is wholly used for the purposes of the business carried on by the assessee, a sum by way of development rebate in respect of the year of installation equivalent to twenty-five per cent of the actual cost of such machinery or plant to the assessee : Provided that no allowance under this clause shall be made unless the particulars prescribed for the purpose of clause (vi) have been furnished by the assessee in respect of such machinery or plant; Provided further that no allowance under this clause shall be made in respect of any machinery or plant which consist of office appliances or road transport vehicles."2. The petitioner is a limited company with its registered office at Madurai in the State of Madras which owns a fleet of buses and lorries and carries on the business of transport In respect of assessment year 1960-61 it claimed a development rebate on all its plants and machinery including business. The Income tax Officer disallowed the claim of rebate on transport vehicles under the proviso above quoted and computed the tax payable without such rebate. It was contended on behalf of the petitioner that the proviso offends Art. 14 in that it discriminates between machinery which is office appliance or road transport vehicles and other kind of machinery. It is difficult to accept such a contention because there is nothing in the Constitution which prevents the legislature from choosing the object of taxation from amongst various classes of machinery for the purpose of giving development rebate. The Constitution does not prohibit any such classification which has been made in the pressnt case.
### Response:
0
### Explanation:
It is difficult to accept such a contention because there is nothing in the Constitution which prevents the legislature from choosing the object of taxation from amongst various classes of machinery for the purpose of giving development rebate. The Constitution does not prohibit any such classification which has been made in the pressnt case.
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A.P. Showkath Ali & Others Vs. State of Kerala & Others | to emphasise that such a course will be permissible only in those rare cases where very strong grounds exist justifying a valid classification of the cases of the officers in question for the purposes of Art. 14 and 16 of the Constitution. In determining what is just and equitable the authority should take into account the overall effect that the proposed order would have in relation not merely to the particular officers whose cases are specifically dealt with by it but also to all others belonging to the same service, category or class. The mere fact that the enforcement of a rule creates hardship to an officer or a group of officers will be no ground for invoking the power under R. 39, because it must be assumed that the possibility of the causation of any such hardship must have been duly taken into account at the time when the rule in question was made and the rule making authority has nevertheless thought it fit to enact such a provision.21. Though it was strongly contended on behalf of the petitioners that the power under R. 39 can under no circumstances be exercised in such a way as to affect the rights of any of the other persons in the service, we find it difficult to uphold the said contention when it is stated in such a wide form. While explaining the scope of R. 39 we have already held that it is permissible under the said rule to grant a relaxation of the rigour of the rules or even an exemption from any provision contained in the rules in favour of any officer or officers, in regard to whom the facts and circumstances are such that a valid classification for according special treatment would be justified under Art. 14 and 16 of the Constitution. It is quite possible that when such an order is passed it may directly or indirectly have repercussions regarding the seniority, rank or chances of promotion of some of the other officers in service. That, however, has to be regarded as an inevitable incident of service flowing from the exercise of the power under R. 39 which is as much a rule regulating the conditions of service of all the officers in the service of the State as the other provisions contained in the Kerala State and Subordinate Services Rules. The rights conferred on the members of service by the earlier Rules Nos. 1 to 38 in the Kerala State and Subordinate Services Rules are not absolute in character but are inherently subject to the contingent liability of being affected by any order validly passed under R. 39.”(Emphasis supplied)12. Close to the facts, a situation where the Government had not conducted the tests, had arisen for consideration before the Kerala High Court in Sherafuddin v. State of Kerala, where at paragraph-9 , it was held that :“9. The Government having never conducted the examination, it will be unjust and inequitable to deny the service benefits to the incumbents if they are otherwise fit for such benefits. In fact the very purpose of the rule is to tide over such situations. There is no point in requiring the incumbents to perform an impossibility. They are required to pass the examination if only it is held. Admittedly it was never held. Therefore, the invocation of Rule 39 in such circumstances is justifiable in terms of justice and equity. The purpose of the rule is to use the principles of justice to supplement law in a fair and reasonable manner and for a just and equitable cause. The action/ inaction of the Government shall not prejudice an incumbent who is otherwise fit for service benefits and hence the order is perfectly justifiable.”and at paragraph-13, it has been further held:“13. .… When there is failure of justice resulting in inequity and injustice, Rule 39 of the General Rules is to be invoked in the interests of equity and justice. Such power can be exercised even with retrospective effect for doing complete equity. ….”13. We respectfully endorse the views expressed by the Kerala High Court.14. The whole purpose of equity jurisdiction is to prevent injustice and to promote justice. In the words of Krishna Iyer, J., in Roshanlal Kuthalia v. R. B. Mohan Singh Oberoi ((1975) 4 SCC 628 ) , “…..equity is the moral dimension of law”. Thus, equity shall overpower technicality where human justice is at stake (Charles K. Skaria v. C. Mathew, (1980) 2 SCC 752 ). There is a lot of difference between the court exercising equity jurisdiction and the law-maker itself exercising it. As in the instant case, a residuary power is reserved by the law maker, namely the Government, to be used in certain situations which are not otherwise prescribed under law. However, such power does not clothe the Executive to supplement a prescribed provision or to act in violation of the same. As stated by this Court in Bola v. Sardana ((1997) 8 SCC 522 ) , “Equity steps in where the law has left yawning gaps”. Even for courts, equity jurisdiction is meant to be exercised when there is no law operating in the field (Shiv Kumar Sharma v. Santosh Kumari, (2007) 8 SCC 600 ).15. Back to the facts, in ascertaining equity and justice, the simple question to be addressed is what would happen to those thirty seven Assistant Sub- Inspectors in service, in case the exemption is not granted. For no fault on their part, should they have to continue as Assistant Sub-Inspectors only till their retirement? Is there any point, nay, does it even appeal to common sense, to subject them to the test after more than twelve years of entering service and serving in promoted posts as well? Certainly, to remedy such a situation, an equitable relief deserves to be granted to such employees in the interest of justice by invoking Rule 39. That is what has been done by the Government as per the impugned Order dated 17.11.2000. | 1[ds]10. We do not think that it needs any elaborate discussion to note that Rule 39 of the Rules is to operate notwithstanding anything contained in the Rules or Special Rules or Government Orders. No doubt, under Rule 13AA, the passing of test is obligatory for members of the Scheduled Caste and Scheduled Tribe below the rank ofin the Police Department. But it has to be seen that it is Rule 39 which is an exception to the exemption contemplated under Rule 13AA. Rule 39 is to operate notwithstanding anything prescribed not only in the Kerala State and Subordinate Services Rules or the Special Rules but even in any Government Order. The whole purpose of such residuary power is to remedy an otherwise, unjust and inequitable situation. Therefore, the Government Order dated 05.02.2000 also does not stand in the way of the 9 Government invoking Rule 39. That apart, Rule 13AA operates in the matter of promotion whereas in the instant case, Rule 39 is operated in the matter of probation.11. The reliance placed on the Full Bench decision in T.C. Sreedharan Pillai and others (supra), according to us, is of no avail to the appellants.We respectfully endorse the views expressed by the Kerala Highis a lot of difference between the court exercising equity jurisdiction and theitself exercising it. As in the instant case, a residuary power is reserved by the law maker, namely the Government, to be used in certain situations which are not otherwise prescribed under law. However, such power does not clothe the Executive to supplement a prescribed provision or to act in violation of the same.15. Back to the facts, in ascertaining equity and justice, the simple question to be addressed is what would happen to those thirty seven Assistant SubInspectors in service, in case the exemption is not granted. For no fault on their part, should they have to continue as Assistantonly till their retirement? Is there any point, nay, does it even appeal to common sense, to subject them to the test after more than twelve years of entering service and serving in promoted posts as well? Certainly, to remedy such a situation, an equitable relief deserves to be granted to such employees in the interest of justice by invoking Rule 39. That is what has been done by the Government as per the impugned Order dated 17.11.2000. | 1 | 3,546 | 438 | ### 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:
to emphasise that such a course will be permissible only in those rare cases where very strong grounds exist justifying a valid classification of the cases of the officers in question for the purposes of Art. 14 and 16 of the Constitution. In determining what is just and equitable the authority should take into account the overall effect that the proposed order would have in relation not merely to the particular officers whose cases are specifically dealt with by it but also to all others belonging to the same service, category or class. The mere fact that the enforcement of a rule creates hardship to an officer or a group of officers will be no ground for invoking the power under R. 39, because it must be assumed that the possibility of the causation of any such hardship must have been duly taken into account at the time when the rule in question was made and the rule making authority has nevertheless thought it fit to enact such a provision.21. Though it was strongly contended on behalf of the petitioners that the power under R. 39 can under no circumstances be exercised in such a way as to affect the rights of any of the other persons in the service, we find it difficult to uphold the said contention when it is stated in such a wide form. While explaining the scope of R. 39 we have already held that it is permissible under the said rule to grant a relaxation of the rigour of the rules or even an exemption from any provision contained in the rules in favour of any officer or officers, in regard to whom the facts and circumstances are such that a valid classification for according special treatment would be justified under Art. 14 and 16 of the Constitution. It is quite possible that when such an order is passed it may directly or indirectly have repercussions regarding the seniority, rank or chances of promotion of some of the other officers in service. That, however, has to be regarded as an inevitable incident of service flowing from the exercise of the power under R. 39 which is as much a rule regulating the conditions of service of all the officers in the service of the State as the other provisions contained in the Kerala State and Subordinate Services Rules. The rights conferred on the members of service by the earlier Rules Nos. 1 to 38 in the Kerala State and Subordinate Services Rules are not absolute in character but are inherently subject to the contingent liability of being affected by any order validly passed under R. 39.”(Emphasis supplied)12. Close to the facts, a situation where the Government had not conducted the tests, had arisen for consideration before the Kerala High Court in Sherafuddin v. State of Kerala, where at paragraph-9 , it was held that :“9. The Government having never conducted the examination, it will be unjust and inequitable to deny the service benefits to the incumbents if they are otherwise fit for such benefits. In fact the very purpose of the rule is to tide over such situations. There is no point in requiring the incumbents to perform an impossibility. They are required to pass the examination if only it is held. Admittedly it was never held. Therefore, the invocation of Rule 39 in such circumstances is justifiable in terms of justice and equity. The purpose of the rule is to use the principles of justice to supplement law in a fair and reasonable manner and for a just and equitable cause. The action/ inaction of the Government shall not prejudice an incumbent who is otherwise fit for service benefits and hence the order is perfectly justifiable.”and at paragraph-13, it has been further held:“13. .… When there is failure of justice resulting in inequity and injustice, Rule 39 of the General Rules is to be invoked in the interests of equity and justice. Such power can be exercised even with retrospective effect for doing complete equity. ….”13. We respectfully endorse the views expressed by the Kerala High Court.14. The whole purpose of equity jurisdiction is to prevent injustice and to promote justice. In the words of Krishna Iyer, J., in Roshanlal Kuthalia v. R. B. Mohan Singh Oberoi ((1975) 4 SCC 628 ) , “…..equity is the moral dimension of law”. Thus, equity shall overpower technicality where human justice is at stake (Charles K. Skaria v. C. Mathew, (1980) 2 SCC 752 ). There is a lot of difference between the court exercising equity jurisdiction and the law-maker itself exercising it. As in the instant case, a residuary power is reserved by the law maker, namely the Government, to be used in certain situations which are not otherwise prescribed under law. However, such power does not clothe the Executive to supplement a prescribed provision or to act in violation of the same. As stated by this Court in Bola v. Sardana ((1997) 8 SCC 522 ) , “Equity steps in where the law has left yawning gaps”. Even for courts, equity jurisdiction is meant to be exercised when there is no law operating in the field (Shiv Kumar Sharma v. Santosh Kumari, (2007) 8 SCC 600 ).15. Back to the facts, in ascertaining equity and justice, the simple question to be addressed is what would happen to those thirty seven Assistant Sub- Inspectors in service, in case the exemption is not granted. For no fault on their part, should they have to continue as Assistant Sub-Inspectors only till their retirement? Is there any point, nay, does it even appeal to common sense, to subject them to the test after more than twelve years of entering service and serving in promoted posts as well? Certainly, to remedy such a situation, an equitable relief deserves to be granted to such employees in the interest of justice by invoking Rule 39. That is what has been done by the Government as per the impugned Order dated 17.11.2000.
### Response:
1
### Explanation:
10. We do not think that it needs any elaborate discussion to note that Rule 39 of the Rules is to operate notwithstanding anything contained in the Rules or Special Rules or Government Orders. No doubt, under Rule 13AA, the passing of test is obligatory for members of the Scheduled Caste and Scheduled Tribe below the rank ofin the Police Department. But it has to be seen that it is Rule 39 which is an exception to the exemption contemplated under Rule 13AA. Rule 39 is to operate notwithstanding anything prescribed not only in the Kerala State and Subordinate Services Rules or the Special Rules but even in any Government Order. The whole purpose of such residuary power is to remedy an otherwise, unjust and inequitable situation. Therefore, the Government Order dated 05.02.2000 also does not stand in the way of the 9 Government invoking Rule 39. That apart, Rule 13AA operates in the matter of promotion whereas in the instant case, Rule 39 is operated in the matter of probation.11. The reliance placed on the Full Bench decision in T.C. Sreedharan Pillai and others (supra), according to us, is of no avail to the appellants.We respectfully endorse the views expressed by the Kerala Highis a lot of difference between the court exercising equity jurisdiction and theitself exercising it. As in the instant case, a residuary power is reserved by the law maker, namely the Government, to be used in certain situations which are not otherwise prescribed under law. However, such power does not clothe the Executive to supplement a prescribed provision or to act in violation of the same.15. Back to the facts, in ascertaining equity and justice, the simple question to be addressed is what would happen to those thirty seven Assistant SubInspectors in service, in case the exemption is not granted. For no fault on their part, should they have to continue as Assistantonly till their retirement? Is there any point, nay, does it even appeal to common sense, to subject them to the test after more than twelve years of entering service and serving in promoted posts as well? Certainly, to remedy such a situation, an equitable relief deserves to be granted to such employees in the interest of justice by invoking Rule 39. That is what has been done by the Government as per the impugned Order dated 17.11.2000.
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Fort Motor Equipment Co. & Others Vs. I.B.P. Co. Ltd | 1. The appellants had been appointed as a retail outlet dealer for the sale of motor spirit, high speed diesel and other products by the predecessors in interest of the respondent Company more than 70 years back. The appellants entered into a fresh agreement with the respondent Company on 12-7-1996. The licence agreement was entered into between the parties by which the respondent Company granted a licence to the appellants to enter upon and use the establishment at Cumballa Hill, Mumbai, for high speed diesel and other petroleum products. 2. On 4-2-1998/5-2-1998, allegedly the respondent Company received information from the Crime Branch of Mumbai Police, in relation to the alleged commission of irregularities at the outlet of the appellants. A team of officers of the Company visited the outlet and carried out an inspection which revealed certain irregularities. The most serious of the said irregularities was that a tanker lorry bearing Registration No. MH-04-P-516 was found at the establishment of the appellants loaded with motor spirit without valid documents. The tanker lorry was stated to be in a position of decantation with the hose pipe connected to the delivery manifold of the tank lorry and the decantation pipe of the underground MS tank. According to the respondent Company this indicated that the appellants had purchased motor spirit from unauthorised sources with an intent to sell the same. The respondent Company issued letter of termination dated 9-2-1998 recording that the breaches which had been found constituted a violation of Clause.4, 6(c), 7B and sub clauses (a), (c), (g) (l), (n) and (4) of Clause.9 of the Dealership Agreement. It was recorded that the breaches were serious and as a result thereof in the exercise of the power conferred by sub clauses (d), (f) and (g) of Clause.19, the Dealership Licence Agreement stood terminated.3. The appellants instituted a suit in the Bombay City Civil Court seeking, inter alia, a declaration that the termination was illegal together with a mandatory order restraining the respondent Company from obstructing the appellants in carrying on business at the outlet. In the notice of motion in the suit the appellants prayed for mandatory order and direction restraining the respondent Company from obstructing the appellants in their business in using the pump and interfering in any manner with the supply of petrol and diesel to the outlet continuously, as was being done in the past.4. The trial court refused the temporary injunction, aggrieved against which the appellants filed an appeal from order in the High Court of Bombay. Learned Single Judge by the impugned order dismissed the appeal with the observations that the termination of licence which had taken place was in accordance with the contractual provisions and the factual foundation on the basis of which the termination took place laid a sufficiently serious charge of a breach of contract to warrant an order of termination. Having regard to the nature of the breach, it was held that the appellants were not entitled to the temporary injunction prayed for. It may be mentioned here that the High Court while admitting the appeal had granted a temporary injunction and permitted the appellants to continue with the running of the outlet. After the dismissal of the appeal by the High Court, this Court had also granted the interim stay of the High Court order on 4-2-2002. It was ordered that the interim order granted by the High Court shall continue until further orders. The interim order was confirmed by this Court while granting leave in the special leave petition. 5. Since the appellants have been operating the outlet for more than 70 years, including 6-1/2 years under the interim orders of the courts after the termination of licence, without expressing any opinion on the merits of the dispute, we deem it appropriate that the interim order passed by this Court be made absolute and continued till the disposal of the suit by the trial court.6. We have not adverted to the merits of the dispute lest it may prejudice any of the parties before us. Since the suit has been pending at the initial stage for the last six years, the trial court is directed to dispose of the suit as soon as possible, preferably within a period of one year from the receipt/production of a certified copy of this order. The trial court shall decide the suit without taking into consideration any of the observations made by it in its order while refusing the temporary injunction or by taking into consideration any of the observations made by the High Court while dismissing the appeal against order. | 1[ds]5. Since the appellants have been operating the outlet for more than 70 years, includingyears under the interim orders of the courts after the termination of licence, without expressing any opinion on the merits of the dispute, we deem it appropriate that the interim order passed by this Court be made absolute and continued till the disposal of the suit by the trial court.6. We have not adverted to the merits of the dispute lest it may prejudice any of the parties before us. Since the suit has been pending at the initial stage for the last six years, the trial court is directed to dispose of the suit as soon as possible, preferably within a period of one year from the receipt/production of a certified copy of this order. The trial court shall decide the suit without taking into consideration any of the observations made by it in its order while refusing the temporary injunction or by taking into consideration any of the observations made by the High Court while dismissing the appeal against order. | 1 | 838 | 190 | ### Instruction:
Hypothesize the court's verdict (affirmation (1) or negation (0) of the appeal), and then clarify this hypothesis by interpreting significant sentences from the case proceeding.
### Input:
1. The appellants had been appointed as a retail outlet dealer for the sale of motor spirit, high speed diesel and other products by the predecessors in interest of the respondent Company more than 70 years back. The appellants entered into a fresh agreement with the respondent Company on 12-7-1996. The licence agreement was entered into between the parties by which the respondent Company granted a licence to the appellants to enter upon and use the establishment at Cumballa Hill, Mumbai, for high speed diesel and other petroleum products. 2. On 4-2-1998/5-2-1998, allegedly the respondent Company received information from the Crime Branch of Mumbai Police, in relation to the alleged commission of irregularities at the outlet of the appellants. A team of officers of the Company visited the outlet and carried out an inspection which revealed certain irregularities. The most serious of the said irregularities was that a tanker lorry bearing Registration No. MH-04-P-516 was found at the establishment of the appellants loaded with motor spirit without valid documents. The tanker lorry was stated to be in a position of decantation with the hose pipe connected to the delivery manifold of the tank lorry and the decantation pipe of the underground MS tank. According to the respondent Company this indicated that the appellants had purchased motor spirit from unauthorised sources with an intent to sell the same. The respondent Company issued letter of termination dated 9-2-1998 recording that the breaches which had been found constituted a violation of Clause.4, 6(c), 7B and sub clauses (a), (c), (g) (l), (n) and (4) of Clause.9 of the Dealership Agreement. It was recorded that the breaches were serious and as a result thereof in the exercise of the power conferred by sub clauses (d), (f) and (g) of Clause.19, the Dealership Licence Agreement stood terminated.3. The appellants instituted a suit in the Bombay City Civil Court seeking, inter alia, a declaration that the termination was illegal together with a mandatory order restraining the respondent Company from obstructing the appellants in carrying on business at the outlet. In the notice of motion in the suit the appellants prayed for mandatory order and direction restraining the respondent Company from obstructing the appellants in their business in using the pump and interfering in any manner with the supply of petrol and diesel to the outlet continuously, as was being done in the past.4. The trial court refused the temporary injunction, aggrieved against which the appellants filed an appeal from order in the High Court of Bombay. Learned Single Judge by the impugned order dismissed the appeal with the observations that the termination of licence which had taken place was in accordance with the contractual provisions and the factual foundation on the basis of which the termination took place laid a sufficiently serious charge of a breach of contract to warrant an order of termination. Having regard to the nature of the breach, it was held that the appellants were not entitled to the temporary injunction prayed for. It may be mentioned here that the High Court while admitting the appeal had granted a temporary injunction and permitted the appellants to continue with the running of the outlet. After the dismissal of the appeal by the High Court, this Court had also granted the interim stay of the High Court order on 4-2-2002. It was ordered that the interim order granted by the High Court shall continue until further orders. The interim order was confirmed by this Court while granting leave in the special leave petition. 5. Since the appellants have been operating the outlet for more than 70 years, including 6-1/2 years under the interim orders of the courts after the termination of licence, without expressing any opinion on the merits of the dispute, we deem it appropriate that the interim order passed by this Court be made absolute and continued till the disposal of the suit by the trial court.6. We have not adverted to the merits of the dispute lest it may prejudice any of the parties before us. Since the suit has been pending at the initial stage for the last six years, the trial court is directed to dispose of the suit as soon as possible, preferably within a period of one year from the receipt/production of a certified copy of this order. The trial court shall decide the suit without taking into consideration any of the observations made by it in its order while refusing the temporary injunction or by taking into consideration any of the observations made by the High Court while dismissing the appeal against order.
### Response:
1
### Explanation:
5. Since the appellants have been operating the outlet for more than 70 years, includingyears under the interim orders of the courts after the termination of licence, without expressing any opinion on the merits of the dispute, we deem it appropriate that the interim order passed by this Court be made absolute and continued till the disposal of the suit by the trial court.6. We have not adverted to the merits of the dispute lest it may prejudice any of the parties before us. Since the suit has been pending at the initial stage for the last six years, the trial court is directed to dispose of the suit as soon as possible, preferably within a period of one year from the receipt/production of a certified copy of this order. The trial court shall decide the suit without taking into consideration any of the observations made by it in its order while refusing the temporary injunction or by taking into consideration any of the observations made by the High Court while dismissing the appeal against order.
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Raja Vs. State Of Karnataka | witness indicated that the prosecutrix used to take financial help from the accused persons and that she used to indulge in dubious late night activities for which her husband had deserted her. The defence plea of false implication as the accused persons had declined to oblige the prosecutrix qua her demand for financial help therefore cannot be lightly discarded in the overall factual scenario. Her version therefore is a plausible one and thus fit in with the defence plea to demolish the prosecution case.22. That the evidence of a hostile witness in all eventualities ought not stand effaced altogether and that the same can be accepted to the extent found dependable on a careful scrutiny was reiterated by this Court in Himanshu @ Chintu (supra) by drawing sustenance of the proposition amongst others from Khujii v. State of M.P. (1991) 3 SCC 627 and Koli Lakhman Bhai Chanabhai v. State of Gujarat (1999) 8 SCC 624. It was enounced that the evidence of a hostile witness remains admissible and is open for a Court to rely on the dependable part thereof as found acceptable and duly corroborated by other reliable evidence available on record.23. The seizures said to have been effected by the investigating agency also do not inspire confidence. Not only PW 4 Muthu denied that the seizure of ear studs had been made in his presence, DW1 on oath had stated that this item of jewellery had in fact been purchased by the police from a local shop which he could identify on the basis of the symbol `MP inscribed thereon. In any view of the matter, the seized articles per se in absence of any evidence of corroboration of charge would not, irrefutably prove the involvement of the appellants in the offence alleged.24. This Court in Raju (supra), while reiterating that the evidence of the prosecutrix in cases of rape, molestation and other physical outrages is to be construed to be that of an injured witness so much so that no corroboration is necessary, ruled that an accused must also be protected against the possibility of false implication. It was underlined that the testimony of the victim in such cases, though commands great weight but the same, cannot necessarily be universally and mechanically accepted to be free in all circumstances from embellishment and exaggeration. It was ruled that the presumption of absence of consent of the victim, where sexual intercourse by the accused is proved as contemplated in Section 114A of the Evidence Act, was extremely restricted in its application compared to the sweep and ambit of the presumption under Sections 113A and 113B of the Indian Evidence Act. It was exposited that insofar as the allegation of rape is concerned, the evidence of the prosecutrix must be examined as that of a injured witness whose presence at the spot is probable but it can never be presumed that her statement should always without exception, be taken as gospel truth.The essence of this verdict which has stood the test of time proclaims that though generally the testimony of a victim of rape or non-consensual physical assault ought to be accepted as true and unblemished, it would still be subject to judicial scrutiny lest a casual, routine and automatic acceptance thereof results in unwarranted conviction of the person charged.25. Vis-a-vis the scope of interference with a judgment of acquittal, this Court in Sunil Kumar Shabukumar Gupta (Dr.) (supra) echoed the hallowed proposition that if two views are possible, the appellate court should not ordinarily interfere therewith though its view may appear to be the more probable one. While emphasizing that the trial court has the benefit of watching the demeanour of the witnesses and is thus the best judge of their credibility, it was held that every accused is presumed to be innocent unless his guilt is proved and that his presumption of innocence gets reinforced with his acquittal by the trial courts verdict. It was reiterated that only in exceptionable cases and under compelling circumstances, where the judgement of acquittal is found to be perverse i.e. if the findings have been arrived at by ignoring or excluding relevant materials or by taking into consideration irrelevant/inadmissible material and are against the weight of evidence or are so outrageously in defiance of logic so as to suffer from the vice of irrationality, that interference by the appellate court would be called for.26. That the appellate court is under an obligation to consider and identify the error in the decision of the trial court and then to decide whether the error is gross enough to warrant interference was underlined by this Court in Shyamal Saha (supra). It was emphasized that the appellate court is not expected to merely substitute its opinion for that of the trial court and that it has to exercise its discretion very cautiously to correct an error of law or fact, if any and significant enough to warrant reversal of the verdict of the trial court.27. The prosecution case, when judged on the touchstone of totality of the facts and circumstances, does not generate the unqualified and unreserved satisfaction indispensably required to enter a finding of guilt against the appellants. Having regard to the evidence on record as a whole, it is not possible for this Court to unhesitatingly hold that the charge levelled against the appellants has been proved beyond reasonable doubt. In our estimate, the view taken by the Trial Court is the overwhelmingly possible one. In contrast, the findings of the High Court are decipherably strained in favour of the prosecution by overlooking many irreconcilable inconsistencies, anomalies and omissions rendering the prosecution case unworthy of credit. Noticeably, the High Court has exonerated the appellants of the charge of abduction under Section 366 IPC, which is an inseverable component of the string of offences alleged against them. Judged by the known parameters of law, the view adopted by the High Court is not a plausible one when juxtaposed to that of the Trial Court. | 0[ds], she admitted that she was not married to Sarvana though she claimed him to be her husband in herShe disclosed more than once that the accused persons used to tease her for aboutmonths prior to the incident and that she used to talk to them as well. In view of this admission of hers , the identification by the prosecutrix of the accused persons in the TIP pales into insignificance. She contradicted herself in theby stating that three of the four did rape her for the second time. She was also inconsistent with regard to the writer of her complaint.Her conduct during the alleged ordeal is also unlike a victim of forcible rape and betrays somewhat submissive and consensual disposition. From the nature of the exchanges between her and the accused persons as narrated by her, the same are not at all consistent with those of an unwilling, terrified and anguished victim of forcible intercourse, if judged by the normal human conduct.Her post incident conduct and movements are also noticeably unusual. Instead of hurrying back home in a distressed, humiliated and a devastated state, she stayed back in and around the place of occurrence, enquired about the same from persons whom she claims to have met in the late hours of night, returned to the spot to identify the garage and even look at the broken glass bangles, discarded litter etc. According to her, she wandered around the place and as disclosed by her in her evidence, to collect information so as to teach the accused persons a lesson. Her avengeful attitude in the facts and circumstances, as disclosed by her, if true, demonstrably evinces a conduct manifested by a feeling of frustration stoked by an intense feeling of deprivation of something expected, desired or promised. Her confident movements alone past midnight, in that state are also out of the ordinary. Her testimony that she met a cyclist to whom she narrated her tale of woe and that on his information, the Hoysala police came to the spot and that thereafter she was taken to successive police stations before lodging the complaint at Sampangiramanagara police station as well has to be accepted with a grain of salt.20. PW8, who medically examined her, opined in clear terms that she was accustomed to sexual intercourse and that no sign of forcible intercourse was discernible. This assumes great significance in view of the allegation of forcible rape by 3 to 4 adult persons more than once. The medical opinion that she was accustomed to sexual inter course when admittedly she was living separately from her husband for 1 and ½ years before the incident also has its own implication. The medical evidence as such in the attendant facts and circumstances in a way belies the allegation of gang rape.21. The evidence of PW2 Geeta who admittedly had offered shelter to the prosecutrix and her minor daughter, though had been declared hostile, her testimony as a whole cannot be brushed aside. In her testimony, this witness indicated that the prosecutrix used to take financial help from the accused persons and that she used to indulge in dubious late night activities for which her husband had deserted her. The defence plea of false implication as the accused persons had declined to oblige the prosecutrix qua her demand for financial help therefore cannot be lightly discarded in the overall factual scenario. Her version therefore is a plausible one and thus fit in with the defence plea to demolish the prosecution case.22. That the evidence of a hostile witness in all eventualities ought not stand effaced altogether and that the same can be accepted to the extent found dependable on a careful scrutiny was reiterated by this Court in Himanshu @ Chintu (supra) by drawing sustenance of the proposition amongst others from Khujii v. State of M.P. (1991) 3 SCC 627 and Koli Lakhman Bhai Chanabhai v. State of Gujarat (1999) 8 SCC 624. It was enounced that the evidence of a hostile witness remains admissible and is open for a Court to rely on the dependable part thereof as found acceptable and duly corroborated by other reliable evidence available on record.23. The seizures said to have been effected by the investigating agency also do not inspire confidence. Not only PW 4 Muthu denied that the seizure of ear studs had been made in his presence, DW1 on oath had stated that this item of jewellery had in fact been purchased by the police from a local shop which he could identify on the basis of the symbol `MP inscribed thereon. In any view of the matter, the seized articles per se in absence of any evidence of corroboration of charge would not, irrefutably prove the involvement of the appellants in the offence alleged.24. This Court in Raju (supra), while reiterating that the evidence of the prosecutrix in cases of rape, molestation and other physical outrages is to be construed to be that of an injured witness so much so that no corroboration is necessary, ruled that an accused must also be protected against the possibility of false implication. It was underlined that the testimony of the victim in such cases, though commands great weight but the same, cannot necessarily be universally and mechanically accepted to be free in all circumstances from embellishment and exaggeration. It was ruled that the presumption of absence of consent of the victim, where sexual intercourse by the accused is proved as contemplated in Section 114A of the Evidence Act, was extremely restricted in its application compared to the sweep and ambit of the presumption under Sections 113A and 113B of the Indian Evidence Act. It was exposited that insofar as the allegation of rape is concerned, the evidence of the prosecutrix must be examined as that of a injured witness whose presence at the spot is probable but it can never be presumed that her statement should always without exception, be taken as gospel truth.The essence of this verdict which has stood the test of time proclaims that though generally the testimony of a victim of rape orphysical assault ought to be accepted as true and unblemished, it would still be subject to judicial scrutiny lest a casual, routine and automatic acceptance thereof results in unwarranted conviction of the person charged.25.the scope of interference with a judgment of acquittal, this Court in Sunil Kumar Shabukumar Gupta (Dr.) (supra) echoed the hallowed proposition that if two views are possible, the appellate court should not ordinarily interfere therewith though its view may appear to be the more probable one. While emphasizing that the trial court has the benefit of watching the demeanour of the witnesses and is thus the best judge of their credibility, it was held that every accused is presumed to be innocent unless his guilt is proved and that his presumption of innocence gets reinforced with his acquittal by the trial courts verdict. It was reiterated that only in exceptionable cases and under compelling circumstances, where the judgement of acquittal is found to be perverse i.e. if the findings have been arrived at by ignoring or excluding relevant materials or by taking into consideration irrelevant/inadmissible material and are against the weight of evidence or are so outrageously in defiance of logic so as to suffer from the vice of irrationality, that interference by the appellate court would be called for.26. That the appellate court is under an obligation to consider and identify the error in the decision of the trial court and then to decide whether the error is gross enough to warrant interference was underlined by this Court in Shyamal Saha (supra). It was emphasized that the appellate court is not expected to merely substitute its opinion for that of the trial court and that it has to exercise its discretion very cautiously to correct an error of law or fact, if any and significant enough to warrant reversal of the verdict of the trial court.27. The prosecution case, when judged on the touchstone of totality of the facts and circumstances, does not generate the unqualified and unreserved satisfaction indispensably required to enter a finding of guilt against the appellants. Having regard to the evidence on record as a whole, it is not possible for this Court to unhesitatingly hold that the charge levelled against the appellants has been proved beyond reasonable doubt. In our estimate, the view taken by the Trial Court is the overwhelmingly possible one. In contrast, the findings of the High Court are decipherably strained in favour of the prosecution by overlooking many irreconcilable inconsistencies, anomalies and omissions rendering the prosecution case unworthy of credit. Noticeably, the High Court has exonerated the appellants of the charge of abduction under Section 366 IPC, which is an inseverable component of the string of offences alleged against them. Judged by the known parameters of law, the view adopted by the High Court is not a plausible one when juxtaposed to that of the Trial Court | 0 | 6,040 | 1,608 | ### 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:
witness indicated that the prosecutrix used to take financial help from the accused persons and that she used to indulge in dubious late night activities for which her husband had deserted her. The defence plea of false implication as the accused persons had declined to oblige the prosecutrix qua her demand for financial help therefore cannot be lightly discarded in the overall factual scenario. Her version therefore is a plausible one and thus fit in with the defence plea to demolish the prosecution case.22. That the evidence of a hostile witness in all eventualities ought not stand effaced altogether and that the same can be accepted to the extent found dependable on a careful scrutiny was reiterated by this Court in Himanshu @ Chintu (supra) by drawing sustenance of the proposition amongst others from Khujii v. State of M.P. (1991) 3 SCC 627 and Koli Lakhman Bhai Chanabhai v. State of Gujarat (1999) 8 SCC 624. It was enounced that the evidence of a hostile witness remains admissible and is open for a Court to rely on the dependable part thereof as found acceptable and duly corroborated by other reliable evidence available on record.23. The seizures said to have been effected by the investigating agency also do not inspire confidence. Not only PW 4 Muthu denied that the seizure of ear studs had been made in his presence, DW1 on oath had stated that this item of jewellery had in fact been purchased by the police from a local shop which he could identify on the basis of the symbol `MP inscribed thereon. In any view of the matter, the seized articles per se in absence of any evidence of corroboration of charge would not, irrefutably prove the involvement of the appellants in the offence alleged.24. This Court in Raju (supra), while reiterating that the evidence of the prosecutrix in cases of rape, molestation and other physical outrages is to be construed to be that of an injured witness so much so that no corroboration is necessary, ruled that an accused must also be protected against the possibility of false implication. It was underlined that the testimony of the victim in such cases, though commands great weight but the same, cannot necessarily be universally and mechanically accepted to be free in all circumstances from embellishment and exaggeration. It was ruled that the presumption of absence of consent of the victim, where sexual intercourse by the accused is proved as contemplated in Section 114A of the Evidence Act, was extremely restricted in its application compared to the sweep and ambit of the presumption under Sections 113A and 113B of the Indian Evidence Act. It was exposited that insofar as the allegation of rape is concerned, the evidence of the prosecutrix must be examined as that of a injured witness whose presence at the spot is probable but it can never be presumed that her statement should always without exception, be taken as gospel truth.The essence of this verdict which has stood the test of time proclaims that though generally the testimony of a victim of rape or non-consensual physical assault ought to be accepted as true and unblemished, it would still be subject to judicial scrutiny lest a casual, routine and automatic acceptance thereof results in unwarranted conviction of the person charged.25. Vis-a-vis the scope of interference with a judgment of acquittal, this Court in Sunil Kumar Shabukumar Gupta (Dr.) (supra) echoed the hallowed proposition that if two views are possible, the appellate court should not ordinarily interfere therewith though its view may appear to be the more probable one. While emphasizing that the trial court has the benefit of watching the demeanour of the witnesses and is thus the best judge of their credibility, it was held that every accused is presumed to be innocent unless his guilt is proved and that his presumption of innocence gets reinforced with his acquittal by the trial courts verdict. It was reiterated that only in exceptionable cases and under compelling circumstances, where the judgement of acquittal is found to be perverse i.e. if the findings have been arrived at by ignoring or excluding relevant materials or by taking into consideration irrelevant/inadmissible material and are against the weight of evidence or are so outrageously in defiance of logic so as to suffer from the vice of irrationality, that interference by the appellate court would be called for.26. That the appellate court is under an obligation to consider and identify the error in the decision of the trial court and then to decide whether the error is gross enough to warrant interference was underlined by this Court in Shyamal Saha (supra). It was emphasized that the appellate court is not expected to merely substitute its opinion for that of the trial court and that it has to exercise its discretion very cautiously to correct an error of law or fact, if any and significant enough to warrant reversal of the verdict of the trial court.27. The prosecution case, when judged on the touchstone of totality of the facts and circumstances, does not generate the unqualified and unreserved satisfaction indispensably required to enter a finding of guilt against the appellants. Having regard to the evidence on record as a whole, it is not possible for this Court to unhesitatingly hold that the charge levelled against the appellants has been proved beyond reasonable doubt. In our estimate, the view taken by the Trial Court is the overwhelmingly possible one. In contrast, the findings of the High Court are decipherably strained in favour of the prosecution by overlooking many irreconcilable inconsistencies, anomalies and omissions rendering the prosecution case unworthy of credit. Noticeably, the High Court has exonerated the appellants of the charge of abduction under Section 366 IPC, which is an inseverable component of the string of offences alleged against them. Judged by the known parameters of law, the view adopted by the High Court is not a plausible one when juxtaposed to that of the Trial Court.
### Response:
0
### Explanation:
this witness indicated that the prosecutrix used to take financial help from the accused persons and that she used to indulge in dubious late night activities for which her husband had deserted her. The defence plea of false implication as the accused persons had declined to oblige the prosecutrix qua her demand for financial help therefore cannot be lightly discarded in the overall factual scenario. Her version therefore is a plausible one and thus fit in with the defence plea to demolish the prosecution case.22. That the evidence of a hostile witness in all eventualities ought not stand effaced altogether and that the same can be accepted to the extent found dependable on a careful scrutiny was reiterated by this Court in Himanshu @ Chintu (supra) by drawing sustenance of the proposition amongst others from Khujii v. State of M.P. (1991) 3 SCC 627 and Koli Lakhman Bhai Chanabhai v. State of Gujarat (1999) 8 SCC 624. It was enounced that the evidence of a hostile witness remains admissible and is open for a Court to rely on the dependable part thereof as found acceptable and duly corroborated by other reliable evidence available on record.23. The seizures said to have been effected by the investigating agency also do not inspire confidence. Not only PW 4 Muthu denied that the seizure of ear studs had been made in his presence, DW1 on oath had stated that this item of jewellery had in fact been purchased by the police from a local shop which he could identify on the basis of the symbol `MP inscribed thereon. In any view of the matter, the seized articles per se in absence of any evidence of corroboration of charge would not, irrefutably prove the involvement of the appellants in the offence alleged.24. This Court in Raju (supra), while reiterating that the evidence of the prosecutrix in cases of rape, molestation and other physical outrages is to be construed to be that of an injured witness so much so that no corroboration is necessary, ruled that an accused must also be protected against the possibility of false implication. It was underlined that the testimony of the victim in such cases, though commands great weight but the same, cannot necessarily be universally and mechanically accepted to be free in all circumstances from embellishment and exaggeration. It was ruled that the presumption of absence of consent of the victim, where sexual intercourse by the accused is proved as contemplated in Section 114A of the Evidence Act, was extremely restricted in its application compared to the sweep and ambit of the presumption under Sections 113A and 113B of the Indian Evidence Act. It was exposited that insofar as the allegation of rape is concerned, the evidence of the prosecutrix must be examined as that of a injured witness whose presence at the spot is probable but it can never be presumed that her statement should always without exception, be taken as gospel truth.The essence of this verdict which has stood the test of time proclaims that though generally the testimony of a victim of rape orphysical assault ought to be accepted as true and unblemished, it would still be subject to judicial scrutiny lest a casual, routine and automatic acceptance thereof results in unwarranted conviction of the person charged.25.the scope of interference with a judgment of acquittal, this Court in Sunil Kumar Shabukumar Gupta (Dr.) (supra) echoed the hallowed proposition that if two views are possible, the appellate court should not ordinarily interfere therewith though its view may appear to be the more probable one. While emphasizing that the trial court has the benefit of watching the demeanour of the witnesses and is thus the best judge of their credibility, it was held that every accused is presumed to be innocent unless his guilt is proved and that his presumption of innocence gets reinforced with his acquittal by the trial courts verdict. It was reiterated that only in exceptionable cases and under compelling circumstances, where the judgement of acquittal is found to be perverse i.e. if the findings have been arrived at by ignoring or excluding relevant materials or by taking into consideration irrelevant/inadmissible material and are against the weight of evidence or are so outrageously in defiance of logic so as to suffer from the vice of irrationality, that interference by the appellate court would be called for.26. That the appellate court is under an obligation to consider and identify the error in the decision of the trial court and then to decide whether the error is gross enough to warrant interference was underlined by this Court in Shyamal Saha (supra). It was emphasized that the appellate court is not expected to merely substitute its opinion for that of the trial court and that it has to exercise its discretion very cautiously to correct an error of law or fact, if any and significant enough to warrant reversal of the verdict of the trial court.27. The prosecution case, when judged on the touchstone of totality of the facts and circumstances, does not generate the unqualified and unreserved satisfaction indispensably required to enter a finding of guilt against the appellants. Having regard to the evidence on record as a whole, it is not possible for this Court to unhesitatingly hold that the charge levelled against the appellants has been proved beyond reasonable doubt. In our estimate, the view taken by the Trial Court is the overwhelmingly possible one. In contrast, the findings of the High Court are decipherably strained in favour of the prosecution by overlooking many irreconcilable inconsistencies, anomalies and omissions rendering the prosecution case unworthy of credit. Noticeably, the High Court has exonerated the appellants of the charge of abduction under Section 366 IPC, which is an inseverable component of the string of offences alleged against them. Judged by the known parameters of law, the view adopted by the High Court is not a plausible one when juxtaposed to that of the Trial Court
|
The State Of Madhya Pradesh Vs. Shri Mouia Bux And Others | (a) in the case of a suit: by or against the Central Government, the Union of India and (b) in the case of a suit by or against the State Government, the State, shall be named as plaintiff or defendant, as the case may be. It is contended that under the General Clauses Act, S. 3 (8), "Central Government" means in relation to anything done or to be done after the commencement of the Constitution, the President, and under S. 3 (60), "State Government" means, as respects anything done or to be done after the commencement of the Constitution, in the case of a Part C State, the Central Government. The contention, therefore, is that if the State Government means the Central Government in the case of Part C States, then under cl. (a) of S. 79 of the Code of Civil Procedure, the proper party to sue would be the Union of India. This argument was not accepted by the Judicial Commissioner, and, in our opinion, rightly.8. The matter has to be looked at in this way. "State" is defined by S. 3 (58) as a Part A State or a Part B State or a Part C State. This shows that wherever the word State" is used, it includes a Part C State. In Satya Deo v. Padam Deo, 1955-1 SCR 549 : (AIR 1954 SC 587 ), it has been held by this Court that Part C States had a separate existence and were not merged with the Central Government. "State Government" is then defined in S. 3 (60) in relation to a Part C State, as the Central Government and "Central Government" is defined in S. 3 (8) (ii) as including the Lieutenant Governor acting within the scope of authority given to him under Art. 239. Article 239 reads as follows :"239 (1) Subject to the other provisions of this Part, a State specified in Part C of the First Schedule shall be administered by the President acting, to such extent, as he thinks fit, through a Chief Commissioner or a Lieutenant Governor to be appointed by him . . .."The administration of a Part C State was thus being carried on under the provisions of Art. 239, and, as has been rightly pointed out by the Judicial Commissioner, was not affected by Art, 300. On April 8, 1953, the President issued the following notification :"S.R.O. 699-In pursuance of cl. (1) of Article 239 and clause (1) of Article 243 of the Constitution, and in supersession of the notification of the Government of India in the late Home Department No. 204/37Judicial, dated the 5th May, 1938 and in partial modification of the notification of the Government of India in the Ministry of States No. SR.O. 460 dated the 24th August, 1950, in so far as it relates to the Civil Procedure Code, 1908 (Act V of1908), the President hereby directs that the functions assigned to the Central Government by Order XXVII of the first Schedule be discharged by the Lieutenant Governor or the Chief Commissioner as the case may be, of every Part C State except the State of Manipur, in respect of such Part C State, and by the Chief Commissioner of the Andaman and Nicobar Islands in respect of those Islands."9. In view of this notification, the Lieutenant Governor became the proper authority under O. 27 of the Code of Civil Procedure. By virtue of the definitions of "State and "Central Government" read with the definition of "State Government," the Lieutenant Governor of the State was the proper party to be sued. The Government of Vindhya Pradesh meant the Lieutenant Governor only by an amendment made in 1954 in the Vindhya Pradesh General Clauses Act. Since the contract in question was entered into by the Government of Vindhya Pradesh and could not be construed as a contract with the Central Government, see 1955-1 S C R 549 : (AIR 1954 S C 587) the suit had to be brought against the State of Vindhya Pradesh, and the State was the proper authority to be named under S. 79 (b) of the Code. In addition to this, there was the Act called the Government of Part C States Act, and under S. 38 (2) of that Act, all executive action of a Part C State was to be expressed to be taken in the name of the Lieutenant Governor and the executive power of the Government was to be exercised by him, including the grant, sale, disposition or mortgage etc., of any property held for the purposes of the State. The combined effect of all these provisions was to constitute the Part C State of Vindhya Pradesh into a separate State, and under Art. 239, the administration of it was to be done by the President through such person, as he notified. Under the notification, the Lieutenant Governor was appointed as the person to discharge the functions under O. 27 and under S. 32 (2) of the Government of Part C States Act he exercised the executive power of Government. The Government of the State of Vindhya Pradesh entered into the contract with the plaintiffs in respect of the property of the State. The definitions to which we have referred, made the State the proper authority to be sued, even though the State Government was defined in the General Clauses Act as the Central Government, because the definition of "Central Government" takes us to the Lieutenant Governor, and from the Lieutenant Governor, we go to the State. In this view of the matter, S. 79(a) of the Code, which says that in a suit by or against the Central Government, the proper plaintiff or defendant, as the case may be, is the Union of India, does not apply to a Part C State, and only the definition in cl. (b) of the section applies to this State, even though a Part C State, In our opinion, therefore, the decision of the Judicial Commissioner was correct. | 0[ds]9. In view of this notification, the Lieutenant Governor became the proper authority under O. 27 of theCode of Civil Procedure. By virtue of the definitions of "State and "Central Government" read with the definition of "State Government," the Lieutenant Governor of the State was the proper party to be sued. The Government of Vindhya Pradesh meant the Lieutenant Governor only by an amendment made in 1954 in the Vindhya Pradesh General Clauses Act. Since the contract in question was entered into by the Government of Vindhya Pradesh and could not be construed as a contract with the Central Government, see 1955-1 S C R 549 : (AIR 1954 S C 587) the suit had to be brought against the State of Vindhya Pradesh, and the State was the proper authority to be named under S. 79 (b) of the Code. In addition to this, there was the Act called the Government of Part C States Act, and under S. 38 (2) of that Act, all executive action of a Part C State was to be expressed to be taken in the name of the Lieutenant Governor and the executive power of the Government was to be exercised by him, including the grant, sale, disposition or mortgage etc., of any property held for the purposes of the State. The combined effect of all these provisions was to constitute the Part C State of Vindhya Pradesh into a separate State, and under Art. 239, the administration of it was to be done by the President through such person, as he notified. Under the notification, the Lieutenant Governor was appointed as the person to discharge the functions under O. 27 and under S. 32 (2) of the Government of Part C States Act he exercised the executive power of Government. The Government of the State of Vindhya Pradesh entered into the contract with the plaintiffs in respect of the property of the State. The definitions to which we have referred, made the State the proper authority to be sued, even though the State Government was defined in the General Clauses Act as the Central Government, because the definition of "Central Government" takes us to the Lieutenant Governor, and from the Lieutenant Governor, we go to the State. In this view of the matter, S. 79(a) of the Code, which says that in a suit by or against the Central Government, the proper plaintiff or defendant, as the case may be, is the Union of India, does not apply to a Part C State, and only the definition in cl. (b) of the section applies to this State, even though a Part C State, In our opinion, therefore, the decision of the Judicial Commissioner was correct. | 0 | 2,491 | 523 | ### 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:
(a) in the case of a suit: by or against the Central Government, the Union of India and (b) in the case of a suit by or against the State Government, the State, shall be named as plaintiff or defendant, as the case may be. It is contended that under the General Clauses Act, S. 3 (8), "Central Government" means in relation to anything done or to be done after the commencement of the Constitution, the President, and under S. 3 (60), "State Government" means, as respects anything done or to be done after the commencement of the Constitution, in the case of a Part C State, the Central Government. The contention, therefore, is that if the State Government means the Central Government in the case of Part C States, then under cl. (a) of S. 79 of the Code of Civil Procedure, the proper party to sue would be the Union of India. This argument was not accepted by the Judicial Commissioner, and, in our opinion, rightly.8. The matter has to be looked at in this way. "State" is defined by S. 3 (58) as a Part A State or a Part B State or a Part C State. This shows that wherever the word State" is used, it includes a Part C State. In Satya Deo v. Padam Deo, 1955-1 SCR 549 : (AIR 1954 SC 587 ), it has been held by this Court that Part C States had a separate existence and were not merged with the Central Government. "State Government" is then defined in S. 3 (60) in relation to a Part C State, as the Central Government and "Central Government" is defined in S. 3 (8) (ii) as including the Lieutenant Governor acting within the scope of authority given to him under Art. 239. Article 239 reads as follows :"239 (1) Subject to the other provisions of this Part, a State specified in Part C of the First Schedule shall be administered by the President acting, to such extent, as he thinks fit, through a Chief Commissioner or a Lieutenant Governor to be appointed by him . . .."The administration of a Part C State was thus being carried on under the provisions of Art. 239, and, as has been rightly pointed out by the Judicial Commissioner, was not affected by Art, 300. On April 8, 1953, the President issued the following notification :"S.R.O. 699-In pursuance of cl. (1) of Article 239 and clause (1) of Article 243 of the Constitution, and in supersession of the notification of the Government of India in the late Home Department No. 204/37Judicial, dated the 5th May, 1938 and in partial modification of the notification of the Government of India in the Ministry of States No. SR.O. 460 dated the 24th August, 1950, in so far as it relates to the Civil Procedure Code, 1908 (Act V of1908), the President hereby directs that the functions assigned to the Central Government by Order XXVII of the first Schedule be discharged by the Lieutenant Governor or the Chief Commissioner as the case may be, of every Part C State except the State of Manipur, in respect of such Part C State, and by the Chief Commissioner of the Andaman and Nicobar Islands in respect of those Islands."9. In view of this notification, the Lieutenant Governor became the proper authority under O. 27 of the Code of Civil Procedure. By virtue of the definitions of "State and "Central Government" read with the definition of "State Government," the Lieutenant Governor of the State was the proper party to be sued. The Government of Vindhya Pradesh meant the Lieutenant Governor only by an amendment made in 1954 in the Vindhya Pradesh General Clauses Act. Since the contract in question was entered into by the Government of Vindhya Pradesh and could not be construed as a contract with the Central Government, see 1955-1 S C R 549 : (AIR 1954 S C 587) the suit had to be brought against the State of Vindhya Pradesh, and the State was the proper authority to be named under S. 79 (b) of the Code. In addition to this, there was the Act called the Government of Part C States Act, and under S. 38 (2) of that Act, all executive action of a Part C State was to be expressed to be taken in the name of the Lieutenant Governor and the executive power of the Government was to be exercised by him, including the grant, sale, disposition or mortgage etc., of any property held for the purposes of the State. The combined effect of all these provisions was to constitute the Part C State of Vindhya Pradesh into a separate State, and under Art. 239, the administration of it was to be done by the President through such person, as he notified. Under the notification, the Lieutenant Governor was appointed as the person to discharge the functions under O. 27 and under S. 32 (2) of the Government of Part C States Act he exercised the executive power of Government. The Government of the State of Vindhya Pradesh entered into the contract with the plaintiffs in respect of the property of the State. The definitions to which we have referred, made the State the proper authority to be sued, even though the State Government was defined in the General Clauses Act as the Central Government, because the definition of "Central Government" takes us to the Lieutenant Governor, and from the Lieutenant Governor, we go to the State. In this view of the matter, S. 79(a) of the Code, which says that in a suit by or against the Central Government, the proper plaintiff or defendant, as the case may be, is the Union of India, does not apply to a Part C State, and only the definition in cl. (b) of the section applies to this State, even though a Part C State, In our opinion, therefore, the decision of the Judicial Commissioner was correct.
### Response:
0
### Explanation:
9. In view of this notification, the Lieutenant Governor became the proper authority under O. 27 of theCode of Civil Procedure. By virtue of the definitions of "State and "Central Government" read with the definition of "State Government," the Lieutenant Governor of the State was the proper party to be sued. The Government of Vindhya Pradesh meant the Lieutenant Governor only by an amendment made in 1954 in the Vindhya Pradesh General Clauses Act. Since the contract in question was entered into by the Government of Vindhya Pradesh and could not be construed as a contract with the Central Government, see 1955-1 S C R 549 : (AIR 1954 S C 587) the suit had to be brought against the State of Vindhya Pradesh, and the State was the proper authority to be named under S. 79 (b) of the Code. In addition to this, there was the Act called the Government of Part C States Act, and under S. 38 (2) of that Act, all executive action of a Part C State was to be expressed to be taken in the name of the Lieutenant Governor and the executive power of the Government was to be exercised by him, including the grant, sale, disposition or mortgage etc., of any property held for the purposes of the State. The combined effect of all these provisions was to constitute the Part C State of Vindhya Pradesh into a separate State, and under Art. 239, the administration of it was to be done by the President through such person, as he notified. Under the notification, the Lieutenant Governor was appointed as the person to discharge the functions under O. 27 and under S. 32 (2) of the Government of Part C States Act he exercised the executive power of Government. The Government of the State of Vindhya Pradesh entered into the contract with the plaintiffs in respect of the property of the State. The definitions to which we have referred, made the State the proper authority to be sued, even though the State Government was defined in the General Clauses Act as the Central Government, because the definition of "Central Government" takes us to the Lieutenant Governor, and from the Lieutenant Governor, we go to the State. In this view of the matter, S. 79(a) of the Code, which says that in a suit by or against the Central Government, the proper plaintiff or defendant, as the case may be, is the Union of India, does not apply to a Part C State, and only the definition in cl. (b) of the section applies to this State, even though a Part C State, In our opinion, therefore, the decision of the Judicial Commissioner was correct.
|
Mohd. Faisuddin Khan Vs. Govt. Of India & Ors | SHINGHAL, J.1. This appeal by certificate is directed against the judgment of the High Court of Andhra Pradesh dated July 19, 1968. It is not in dispute that appellant Mohd. Faisuddin Khan is a citizen of India, and was declared an evacuee by an order of the Deputy Custodian of Evacuee Property, Hyderabad, dated September 18, 1951. His property, consisting of a building and 350 acres of land, was declared to be evacuee property. The Custodian of Evacuee Property issued a notice to the appellant on April 5, 1961 calling upon him to surrender possession of the property. That was followed by a notification dated January 20, 1962, of the Central Government, under s. 12 of the Displaced Per sons (Compensation and Rehabilitation) Act, 1954, hereinafter referred to as the Act, by which that government acquired all properties which had been declared to be evacuee properties, for a purpose connected with the relief and rehailitation of displaced persons, including payment of compensation. The appellant, challenged the aforesaid notification as unconstitutional and applied for writ of certiorarai on a proper construction of ss.12 and 15 of the Act. In its impugn ed judgment, the High Court has taken the view that on publication of the notification under s. 12(1) of the Act, the right, title and interest of the evacuee was extinguished in the evacuee property and it vested absolutely in the Central Government free from all encumbrances. That, in the view of the High Court, was unconditional, and was not made to depend upon the fixation or payment of compensation under section 13, notwithstanding the fact that the principles for payment of compensation had not been agreed upon between the Governments of India and Pakistan and had not therefore been fixed. It has also been held that the words "or otherwise" in article 31(5) (b) (iii) of the Constitution are sufficiently wide and the protection of the article extends to the relevant provisions of the Act so that there could be no successful challenge on the basis of article 31(2). The evacuee feels aggrieved and has filed the present appeal. It has been argued by counsel for the appellant that the view taken by the High Court is not correct, and that acquisition of the appellants property under s. 12 of the Act was not immune from challenge under article 31(5) (b) (iii) of the Constitution because no compensation had been. paid or was proposed to be paid for the acquired property.2. It will be recalled that a notification was issued by the Central Government under s. 12 of the Act to acquire the property of the appellant for rehabilitation of displaced persons. That notification was published in the gazette and, by virtue of sub-s. (2) of that section, the right, title and interest of the appellant in that property (which was admittedly evacuee property) was extinguished and the property vested "absolutely in the Central Government free from all encumbrances." Section 13 of the Act provides for the payment of compensation for such acquisition "in accordance with such principles and in such manner as may be agreed upon between the Governments of India and Pakistan." Section 14 of the Act goes further and provides for the constitution of a compensation pool. The appellant has, however, been deprived of the benefit of these provisions because it is the admitted case of the parties that the agreement envisaged by section 12 has not been arrived at so far between the two Governments. Even so, that. would not, in our opinion, justify the argument of counsel for the appellant that clause (2) of article 31 of the Constitution would become applicable, for clause 5 (b) (iii) of that article expressly provides as follows:"(5) Nothing in clause (2) shall affect ......................................(b) the provisions of any law which the State may here after make...(iii) in pursuance of any agreement entered into between the Government of the Dominion of India or the Government of India and the Government of any other country, or otherwise, with respect to property declared by law to be evacuee property." (Emphasis added).3. It would thus appear that clause (2) of article 31 will not avail the appellant because there is an express provision in clause (5) that it shall not affect the provisions of any law which the State Government may make either in pursuance of an agreement with the Government of any other country "or otherwise". So even in the absence of an agreement with the Government of Pakistan, it was permissible for the State to make the Act, and its provisions would not be affected by anything contained in clause (2) of article 31 of the Constitution. It would follow that there is nothing wrong with the view that compensation would have been payable to the appellant under sec. 13 of the Act, in accordance with such Principles and in such manner as might have been agreed upon between the Governments of India and Pakistan, but not otherwise. The appellant is therefore not entitled to claim such compensation in the absence of the agreement, and there is nothing wrong with the conclusion arrived at by the High Court in the impugned judgment.4. The counsel for the appellant tried to argue that the evacuee property in question could not have vested in the Central Government until compensation for its acquisition had been determined and paid. The argument is however quite futile in face of the clear provision of sub-section (2) of section 12 of the Act that on the publication of the notification under sub-section (1), the right, title and interest of the evacuee shall be extinguished in the evacuee property and it "shall vest absolutely in the Central Government free from all encumbrances." There is thus no force in this appeal and | 0[ds]3. It would thus appear that clause (2) of article 31 will not avail the appellant because there is an express provision in clause (5) that it shall not affect the provisions of any law which the State Government may make either in pursuance of an agreement with the Government of any other country "or otherwise". So even in the absence of an agreement with the Government of Pakistan, it was permissible for the State to make the Act, and its provisions would not be affected by anything contained in clause (2) of article 31 of the Constitution. It would follow that there is nothing wrong with the view that compensation would have been payable to the appellant under sec. 13 of the Act, in accordance with such Principles and in such manner as might have been agreed upon between the Governments of India and Pakistan, but not otherwise. The appellant is therefore not entitled to claim such compensation in the absence of the agreement, and there is nothing wrong with the conclusion arrived at by the High Court in the impugnedargument is however quite futile in face of the clear provision of(2) of section 12 of the Act that on the publication of the notification under(1), the right, title and interest of the evacuee shall be extinguished in the evacuee property and it "shall vest absolutely in the Central Government free from all encumbrances." There is thus no force in this appeal | 0 | 1,106 | 276 | ### 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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SHINGHAL, J.1. This appeal by certificate is directed against the judgment of the High Court of Andhra Pradesh dated July 19, 1968. It is not in dispute that appellant Mohd. Faisuddin Khan is a citizen of India, and was declared an evacuee by an order of the Deputy Custodian of Evacuee Property, Hyderabad, dated September 18, 1951. His property, consisting of a building and 350 acres of land, was declared to be evacuee property. The Custodian of Evacuee Property issued a notice to the appellant on April 5, 1961 calling upon him to surrender possession of the property. That was followed by a notification dated January 20, 1962, of the Central Government, under s. 12 of the Displaced Per sons (Compensation and Rehabilitation) Act, 1954, hereinafter referred to as the Act, by which that government acquired all properties which had been declared to be evacuee properties, for a purpose connected with the relief and rehailitation of displaced persons, including payment of compensation. The appellant, challenged the aforesaid notification as unconstitutional and applied for writ of certiorarai on a proper construction of ss.12 and 15 of the Act. In its impugn ed judgment, the High Court has taken the view that on publication of the notification under s. 12(1) of the Act, the right, title and interest of the evacuee was extinguished in the evacuee property and it vested absolutely in the Central Government free from all encumbrances. That, in the view of the High Court, was unconditional, and was not made to depend upon the fixation or payment of compensation under section 13, notwithstanding the fact that the principles for payment of compensation had not been agreed upon between the Governments of India and Pakistan and had not therefore been fixed. It has also been held that the words "or otherwise" in article 31(5) (b) (iii) of the Constitution are sufficiently wide and the protection of the article extends to the relevant provisions of the Act so that there could be no successful challenge on the basis of article 31(2). The evacuee feels aggrieved and has filed the present appeal. It has been argued by counsel for the appellant that the view taken by the High Court is not correct, and that acquisition of the appellants property under s. 12 of the Act was not immune from challenge under article 31(5) (b) (iii) of the Constitution because no compensation had been. paid or was proposed to be paid for the acquired property.2. It will be recalled that a notification was issued by the Central Government under s. 12 of the Act to acquire the property of the appellant for rehabilitation of displaced persons. That notification was published in the gazette and, by virtue of sub-s. (2) of that section, the right, title and interest of the appellant in that property (which was admittedly evacuee property) was extinguished and the property vested "absolutely in the Central Government free from all encumbrances." Section 13 of the Act provides for the payment of compensation for such acquisition "in accordance with such principles and in such manner as may be agreed upon between the Governments of India and Pakistan." Section 14 of the Act goes further and provides for the constitution of a compensation pool. The appellant has, however, been deprived of the benefit of these provisions because it is the admitted case of the parties that the agreement envisaged by section 12 has not been arrived at so far between the two Governments. Even so, that. would not, in our opinion, justify the argument of counsel for the appellant that clause (2) of article 31 of the Constitution would become applicable, for clause 5 (b) (iii) of that article expressly provides as follows:"(5) Nothing in clause (2) shall affect ......................................(b) the provisions of any law which the State may here after make...(iii) in pursuance of any agreement entered into between the Government of the Dominion of India or the Government of India and the Government of any other country, or otherwise, with respect to property declared by law to be evacuee property." (Emphasis added).3. It would thus appear that clause (2) of article 31 will not avail the appellant because there is an express provision in clause (5) that it shall not affect the provisions of any law which the State Government may make either in pursuance of an agreement with the Government of any other country "or otherwise". So even in the absence of an agreement with the Government of Pakistan, it was permissible for the State to make the Act, and its provisions would not be affected by anything contained in clause (2) of article 31 of the Constitution. It would follow that there is nothing wrong with the view that compensation would have been payable to the appellant under sec. 13 of the Act, in accordance with such Principles and in such manner as might have been agreed upon between the Governments of India and Pakistan, but not otherwise. The appellant is therefore not entitled to claim such compensation in the absence of the agreement, and there is nothing wrong with the conclusion arrived at by the High Court in the impugned judgment.4. The counsel for the appellant tried to argue that the evacuee property in question could not have vested in the Central Government until compensation for its acquisition had been determined and paid. The argument is however quite futile in face of the clear provision of sub-section (2) of section 12 of the Act that on the publication of the notification under sub-section (1), the right, title and interest of the evacuee shall be extinguished in the evacuee property and it "shall vest absolutely in the Central Government free from all encumbrances." There is thus no force in this appeal and
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0
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3. It would thus appear that clause (2) of article 31 will not avail the appellant because there is an express provision in clause (5) that it shall not affect the provisions of any law which the State Government may make either in pursuance of an agreement with the Government of any other country "or otherwise". So even in the absence of an agreement with the Government of Pakistan, it was permissible for the State to make the Act, and its provisions would not be affected by anything contained in clause (2) of article 31 of the Constitution. It would follow that there is nothing wrong with the view that compensation would have been payable to the appellant under sec. 13 of the Act, in accordance with such Principles and in such manner as might have been agreed upon between the Governments of India and Pakistan, but not otherwise. The appellant is therefore not entitled to claim such compensation in the absence of the agreement, and there is nothing wrong with the conclusion arrived at by the High Court in the impugnedargument is however quite futile in face of the clear provision of(2) of section 12 of the Act that on the publication of the notification under(1), the right, title and interest of the evacuee shall be extinguished in the evacuee property and it "shall vest absolutely in the Central Government free from all encumbrances." There is thus no force in this appeal
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Commissioner of Income Tax II Vs. M/s. Modipon Ltd | under Section 3 of the Central Excise Act, the event for levy of excise duty is the manufacture of goods though the duty is to be paid at the stage of removal of the goods. Pointing out the provisions of Rule 173G of the Central Excise Rules, 1944 it is submitted that the advance deposit of central excise duty in a current account is a mandatory requirement from which adjustments are made, from time to time, against clearances effected. Though, sub-rule (1)(A) contemplates refund from the current account, such refund can be granted only on reasons being recorded by the concerned authority i.e., the Commissioner on the application filed by the assessee. Refund is not a matter of right. The amount deposited in the PLA is irretrievably lost to the assessee, it is argued. Payment of central excise duty takes place at the time of deposit in the PLA, though the deposit is on the basis of an approximation and the precise amount of duty qua the goods removed is ascertained at the stage of removal/clearances. The said facts, according to the learned counsel, would not make the deposit anything less than actual payment of duty.8. We have considered the submissions made on behalf of the parties. Notwithstanding the acceptance by the Revenue of the practice adopted by the assessee-Modipon Ltd. in all the assessment years except for the ones under dispute as enumerated above and the absence of any challenge to the decisions of the Delhi and the Punjab & Haryana High Courts, the present challenge would still be entertainable so long as it discloses a substantial question of law or an issue impacting public interest or the same has the potential of recurrence in future. The Revenue cannot be shut out from the present proceedings merely because of its acceptance of the practice of accounting adopted by the assessee or its acceptance of the decision of the two High Courts in question. An adjudication of the question(s) arising cannot be refused merely on the above basis. We will, therefore, have to proceed to answer the merits of the challenge made by the Revenue in the present appeals.9. Deposit of Central Excise Duty in the PLA is a statutory requirement. The Central Excise Rules, 1944, specify a distinct procedure for payment of excise duty leviable on manufactured goods. It is a procedure designed to bring in orderly conduct in the matter of levy and collection of excise duty when both manufacture and clearances are a continuous process. Debits against the advance deposit in the PLA have to be made of amounts of excise duty payable on excisable goods cleared during the previous fortnight. The deposit once made is adjusted against the duty payable on removal and the balance is kept in the account for future clearances/removal. No withdrawal from the account is permissible except on an application to be filed before the Commissioner who is required to record reasons for permitting an assessee to withdraw any amount from the PLA. Sub-rules (3), (4), (5) and (6) of Rule 173G indicates a strict and vigorous scrutiny to be exercised by the central excise authorities with regard to manufacture and removal of excisable goods by an assessee. The self removal scheme and payment of duty under the Act and the Rules clearly shows that upon deposit in the PLA the amount of such deposit stands credited to the Revenue with the assessee having no domain over the amount(s) deposited.10. In C.I.T. v. Pandavapura Sahakara Sakkare Karkhane Ltd., (1992) 198 ITR 690 (Kar.) and C.I.T. v. Nizam Sugar Factory Ltd., (2002) 253 ITR 68 (AP)cited at the Bar, the High Courts of Karnataka and Andhra Pradesh respectively had occasion to consider as to whether the amounts credited to the Molasses Storage Fund out of the sale proceeds of molasses received by the assessee constitute taxable income of the assessee. Under the scheme, the assessee had no control over the amounts deposited in the fund and the assessee was also not entitled to withdraw any amount therefrom without the approval of the authorities. Further the amount deposited could be utilized only for the purpose specified. In those circumstances, the High Court held and in our view correctly, that the deposits made, though a part of the sale proceeds of the assessee, did not constitute taxable income at the hands of the assessee. We do not see why the same analogy would not be applicable to the case in hand.11. The Delhi High Court in the appeals arising from the orders passed by it has also taken the view that the purpose of introduction of Section 43B of the Central Excise Act was to plug a loophole in the statute which permitted deductions on an accrual basis without the requisite obligation to deposit the tax with the State. Resultantly, on the basis of mere book entries an assessee was entitled to claim deduction without actually paying the tax to the State. Having regard to the object behind the enactment of Section 43B and the preceding discussions, it would be consistent to hold that the legislative intent would be achieved by giving benefit of deduction to an assessee upon advance deposit of central excise duty notwithstanding the fact that adjustments from such deposit are made on subsequent clearances/removal effected from time to time.12. The above discussions, coupled with the peculiar features of the case, noticed above i.e. consistent practice followed by the assessee and accepted by the Revenue; the decisions of the two High Courts in favour of the assessee which have attained finality in law; and no contrary view of any other High Court being brought to our notice, should lead us to the conclusion that the High Courts were justified in taking the view that the advance deposit of central excise duty constitutes actual payment of duty within the meaning of Section 43B of the Central Excise Act and, therefore, the assessee is entitled to the benefit of deduction of the said amount. | 0[ds]8. We have considered the submissions made on behalf of the parties. Notwithstanding the acceptance by the Revenue of the practice adopted by theLtd. in all the assessment years except for the ones under dispute as enumerated above and the absence of any challenge to the decisions of the Delhi and the Punjab & Haryana High Courts, the present challenge would still be entertainable so long as it discloses a substantial question of law or an issue impacting public interest or the same has the potential of recurrence in future. The Revenue cannot be shut out from the present proceedings merely because of its acceptance of the practice of accounting adopted by the assessee or its acceptance of the decision of the two High Courts in question. An adjudication of the question(s) arising cannot be refused merely on the above basis. We will, therefore, have to proceed to answer the merits of the challenge made by the Revenue in the present appeals.9. Deposit of Central Excise Duty in the PLA is a statutory requirement. The Central Excise Rules, 1944, specify a distinct procedure for payment of excise duty leviable on manufactured goods. It is a procedure designed to bring in orderly conduct in the matter of levy and collection of excise duty when both manufacture and clearances are a continuous process. Debits against the advance deposit in the PLA have to be made of amounts of excise duty payable on excisable goods cleared during the previous fortnight. The deposit once made is adjusted against the duty payable on removal and the balance is kept in the account for future clearances/removal. No withdrawal from the account is permissible except on an application to be filed before the Commissioner who is required to record reasons for permitting an assessee to withdraw any amount from the PLA.(3), (4), (5) and (6) of Rule 173G indicates a strict and vigorous scrutiny to be exercised by the central excise authorities with regard to manufacture and removal of excisable goods by an assessee. The self removal scheme and payment of duty under the Act and the Rules clearly shows that upon deposit in the PLA the amount of such deposit stands credited to the Revenue with the assessee having no domain over the amount(s)the scheme, the assessee had no control over the amounts deposited in the fund and the assessee was also not entitled to withdraw any amount therefrom without the approval of the authorities. Further the amount deposited could be utilized only for the purpose specified. In those circumstances, the High Court held and in our view correctly, that the deposits made, though a part of the sale proceeds of the assessee, did not constitute taxable income at the hands of the assessee. We do not see why the same analogy would not be applicable to the case in hand.11. The Delhi High Court in the appeals arising from the orders passed by it has also taken the view that the purpose of introduction of Section 43B of the Central Excise Act was to plug a loophole in the statute which permitted deductions on an accrual basis without the requisite obligation to deposit the tax with the State. Resultantly, on the basis of mere book entries an assessee was entitled to claim deduction without actually paying the tax to the State. Having regard to the object behind the enactment of Section 43B and the preceding discussions, it would be consistent to hold that the legislative intent would be achieved by giving benefit of deduction to an assessee upon advance deposit of central excise duty notwithstanding the fact that adjustments from such deposit are made on subsequent clearances/removal effected from time to time.12. The above discussions, coupled with the peculiar features of the case, noticed above i.e. consistent practice followed by the assessee and accepted by the Revenue; the decisions of the two High Courts in favour of the assessee which have attained finality in law; and no contrary view of any other High Court being brought to our notice, should lead us to the conclusion that the High Courts were justified in taking the view that the advance deposit of central excise duty constitutes actual payment of duty within the meaning of Section 43B of the Central Excise Act and, therefore, the assessee is entitled to the benefit of deduction of the said amount. | 0 | 2,001 | 795 | ### 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:
under Section 3 of the Central Excise Act, the event for levy of excise duty is the manufacture of goods though the duty is to be paid at the stage of removal of the goods. Pointing out the provisions of Rule 173G of the Central Excise Rules, 1944 it is submitted that the advance deposit of central excise duty in a current account is a mandatory requirement from which adjustments are made, from time to time, against clearances effected. Though, sub-rule (1)(A) contemplates refund from the current account, such refund can be granted only on reasons being recorded by the concerned authority i.e., the Commissioner on the application filed by the assessee. Refund is not a matter of right. The amount deposited in the PLA is irretrievably lost to the assessee, it is argued. Payment of central excise duty takes place at the time of deposit in the PLA, though the deposit is on the basis of an approximation and the precise amount of duty qua the goods removed is ascertained at the stage of removal/clearances. The said facts, according to the learned counsel, would not make the deposit anything less than actual payment of duty.8. We have considered the submissions made on behalf of the parties. Notwithstanding the acceptance by the Revenue of the practice adopted by the assessee-Modipon Ltd. in all the assessment years except for the ones under dispute as enumerated above and the absence of any challenge to the decisions of the Delhi and the Punjab & Haryana High Courts, the present challenge would still be entertainable so long as it discloses a substantial question of law or an issue impacting public interest or the same has the potential of recurrence in future. The Revenue cannot be shut out from the present proceedings merely because of its acceptance of the practice of accounting adopted by the assessee or its acceptance of the decision of the two High Courts in question. An adjudication of the question(s) arising cannot be refused merely on the above basis. We will, therefore, have to proceed to answer the merits of the challenge made by the Revenue in the present appeals.9. Deposit of Central Excise Duty in the PLA is a statutory requirement. The Central Excise Rules, 1944, specify a distinct procedure for payment of excise duty leviable on manufactured goods. It is a procedure designed to bring in orderly conduct in the matter of levy and collection of excise duty when both manufacture and clearances are a continuous process. Debits against the advance deposit in the PLA have to be made of amounts of excise duty payable on excisable goods cleared during the previous fortnight. The deposit once made is adjusted against the duty payable on removal and the balance is kept in the account for future clearances/removal. No withdrawal from the account is permissible except on an application to be filed before the Commissioner who is required to record reasons for permitting an assessee to withdraw any amount from the PLA. Sub-rules (3), (4), (5) and (6) of Rule 173G indicates a strict and vigorous scrutiny to be exercised by the central excise authorities with regard to manufacture and removal of excisable goods by an assessee. The self removal scheme and payment of duty under the Act and the Rules clearly shows that upon deposit in the PLA the amount of such deposit stands credited to the Revenue with the assessee having no domain over the amount(s) deposited.10. In C.I.T. v. Pandavapura Sahakara Sakkare Karkhane Ltd., (1992) 198 ITR 690 (Kar.) and C.I.T. v. Nizam Sugar Factory Ltd., (2002) 253 ITR 68 (AP)cited at the Bar, the High Courts of Karnataka and Andhra Pradesh respectively had occasion to consider as to whether the amounts credited to the Molasses Storage Fund out of the sale proceeds of molasses received by the assessee constitute taxable income of the assessee. Under the scheme, the assessee had no control over the amounts deposited in the fund and the assessee was also not entitled to withdraw any amount therefrom without the approval of the authorities. Further the amount deposited could be utilized only for the purpose specified. In those circumstances, the High Court held and in our view correctly, that the deposits made, though a part of the sale proceeds of the assessee, did not constitute taxable income at the hands of the assessee. We do not see why the same analogy would not be applicable to the case in hand.11. The Delhi High Court in the appeals arising from the orders passed by it has also taken the view that the purpose of introduction of Section 43B of the Central Excise Act was to plug a loophole in the statute which permitted deductions on an accrual basis without the requisite obligation to deposit the tax with the State. Resultantly, on the basis of mere book entries an assessee was entitled to claim deduction without actually paying the tax to the State. Having regard to the object behind the enactment of Section 43B and the preceding discussions, it would be consistent to hold that the legislative intent would be achieved by giving benefit of deduction to an assessee upon advance deposit of central excise duty notwithstanding the fact that adjustments from such deposit are made on subsequent clearances/removal effected from time to time.12. The above discussions, coupled with the peculiar features of the case, noticed above i.e. consistent practice followed by the assessee and accepted by the Revenue; the decisions of the two High Courts in favour of the assessee which have attained finality in law; and no contrary view of any other High Court being brought to our notice, should lead us to the conclusion that the High Courts were justified in taking the view that the advance deposit of central excise duty constitutes actual payment of duty within the meaning of Section 43B of the Central Excise Act and, therefore, the assessee is entitled to the benefit of deduction of the said amount.
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0
### Explanation:
8. We have considered the submissions made on behalf of the parties. Notwithstanding the acceptance by the Revenue of the practice adopted by theLtd. in all the assessment years except for the ones under dispute as enumerated above and the absence of any challenge to the decisions of the Delhi and the Punjab & Haryana High Courts, the present challenge would still be entertainable so long as it discloses a substantial question of law or an issue impacting public interest or the same has the potential of recurrence in future. The Revenue cannot be shut out from the present proceedings merely because of its acceptance of the practice of accounting adopted by the assessee or its acceptance of the decision of the two High Courts in question. An adjudication of the question(s) arising cannot be refused merely on the above basis. We will, therefore, have to proceed to answer the merits of the challenge made by the Revenue in the present appeals.9. Deposit of Central Excise Duty in the PLA is a statutory requirement. The Central Excise Rules, 1944, specify a distinct procedure for payment of excise duty leviable on manufactured goods. It is a procedure designed to bring in orderly conduct in the matter of levy and collection of excise duty when both manufacture and clearances are a continuous process. Debits against the advance deposit in the PLA have to be made of amounts of excise duty payable on excisable goods cleared during the previous fortnight. The deposit once made is adjusted against the duty payable on removal and the balance is kept in the account for future clearances/removal. No withdrawal from the account is permissible except on an application to be filed before the Commissioner who is required to record reasons for permitting an assessee to withdraw any amount from the PLA.(3), (4), (5) and (6) of Rule 173G indicates a strict and vigorous scrutiny to be exercised by the central excise authorities with regard to manufacture and removal of excisable goods by an assessee. The self removal scheme and payment of duty under the Act and the Rules clearly shows that upon deposit in the PLA the amount of such deposit stands credited to the Revenue with the assessee having no domain over the amount(s)the scheme, the assessee had no control over the amounts deposited in the fund and the assessee was also not entitled to withdraw any amount therefrom without the approval of the authorities. Further the amount deposited could be utilized only for the purpose specified. In those circumstances, the High Court held and in our view correctly, that the deposits made, though a part of the sale proceeds of the assessee, did not constitute taxable income at the hands of the assessee. We do not see why the same analogy would not be applicable to the case in hand.11. The Delhi High Court in the appeals arising from the orders passed by it has also taken the view that the purpose of introduction of Section 43B of the Central Excise Act was to plug a loophole in the statute which permitted deductions on an accrual basis without the requisite obligation to deposit the tax with the State. Resultantly, on the basis of mere book entries an assessee was entitled to claim deduction without actually paying the tax to the State. Having regard to the object behind the enactment of Section 43B and the preceding discussions, it would be consistent to hold that the legislative intent would be achieved by giving benefit of deduction to an assessee upon advance deposit of central excise duty notwithstanding the fact that adjustments from such deposit are made on subsequent clearances/removal effected from time to time.12. The above discussions, coupled with the peculiar features of the case, noticed above i.e. consistent practice followed by the assessee and accepted by the Revenue; the decisions of the two High Courts in favour of the assessee which have attained finality in law; and no contrary view of any other High Court being brought to our notice, should lead us to the conclusion that the High Courts were justified in taking the view that the advance deposit of central excise duty constitutes actual payment of duty within the meaning of Section 43B of the Central Excise Act and, therefore, the assessee is entitled to the benefit of deduction of the said amount.
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M.D. Singareni Collieries Co. Ltd Vs. Kangala N. Rao and Ors | C.A. No. 7632/1997 A large tract of land was acquired by the State of Andhra Pradesh for the appellant herein under the Land Acquisition Act. On April 30, 1986, the land acquisition collector gave an award in respect of land acquired. One of the commitments made by the appellant for whom the land was acquired was that the land losers shall be given employment in the company. According to the respondents neither the land holders whose lands were acquired nor their nominees have been given employment by the company as per their commitment. Under such circumstances, the respondents herein filed writ petition before the Andhra Pradesh High Court for issuing a direction to the appellant herein to give employment to the writ petitioners in its company. In the writ petition out of which this appeal arises, the appellant herein filed a counter-affidavit wherein it was asserted that the company had already given employment to the land holders whose land was acquired as per its commitment and question of giving employment to the writ petitioners does not arise. The learned single Judge without adverting to that aspect of the matter allowed the writ petition and gave direction to the company to give employment to the writ petitioners. Aggrieved, the appellant filed writ appeal before the Division Bench of the High Court but the same was dismissed. It is against the same judgment, the appellant is in appeal before us. Shri Altaf Ahmed, learned Additional Solicitor General, appearing for the appellant urged that in view of the fact that the appellant herein has already given employment to the land holders whose land was acquired or to their nominees, the High Court fell in error in not considering that aspect of the matter in the case. Learned counsel appearing for the respondents urged that although there is no finding to that effect but from the conclusion arrived at in the judgment shows that the High Court did consider the plea of the appellant. We have perused the judgment but we do not find any finding recorded by the High Court that the plea of the appellant that it has already given employment to land holders or their nominees is incorrect. In the absence of such finding, the judgment under challenge deserves to be set aside. We, accordingly, set aside the impugned judgment and send the case back to a Division Bench of the High Court to decide the writ appeal in light of observation made hereinbefore. It will be open to the parties to file fresh affidavits, if they are so advised. | 1[ds]We have perused the judgment but we do not find any finding recorded by the High Court that the plea of the appellant that it has already given employment to land holders or their nominees is incorrect. In the absence of such finding, the judgment under challenge deserves to be set aside. We, accordingly, set aside the impugned judgment and send the case back to a Division Bench of the High Court to decide the writ appeal in light of observation made hereinbefore. It will be open to the parties to file fresh affidavits, if they are so advisedC.A. No. 6187/2001 @ S.L.P. No. 9991/1998We are therefore, of the view that the plea raised in thet by the company was required to be considered by the High Court. We, therefore, set aside the order under challenge and send the case back to a Division Bench of the High Court to decide the case afresh in the light of observation made hereinbefore. It will be open to the parties to file fresh affidavit and raise such contentions which may be available to them under law. | 1 | 459 | 205 | ### 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:
C.A. No. 7632/1997 A large tract of land was acquired by the State of Andhra Pradesh for the appellant herein under the Land Acquisition Act. On April 30, 1986, the land acquisition collector gave an award in respect of land acquired. One of the commitments made by the appellant for whom the land was acquired was that the land losers shall be given employment in the company. According to the respondents neither the land holders whose lands were acquired nor their nominees have been given employment by the company as per their commitment. Under such circumstances, the respondents herein filed writ petition before the Andhra Pradesh High Court for issuing a direction to the appellant herein to give employment to the writ petitioners in its company. In the writ petition out of which this appeal arises, the appellant herein filed a counter-affidavit wherein it was asserted that the company had already given employment to the land holders whose land was acquired as per its commitment and question of giving employment to the writ petitioners does not arise. The learned single Judge without adverting to that aspect of the matter allowed the writ petition and gave direction to the company to give employment to the writ petitioners. Aggrieved, the appellant filed writ appeal before the Division Bench of the High Court but the same was dismissed. It is against the same judgment, the appellant is in appeal before us. Shri Altaf Ahmed, learned Additional Solicitor General, appearing for the appellant urged that in view of the fact that the appellant herein has already given employment to the land holders whose land was acquired or to their nominees, the High Court fell in error in not considering that aspect of the matter in the case. Learned counsel appearing for the respondents urged that although there is no finding to that effect but from the conclusion arrived at in the judgment shows that the High Court did consider the plea of the appellant. We have perused the judgment but we do not find any finding recorded by the High Court that the plea of the appellant that it has already given employment to land holders or their nominees is incorrect. In the absence of such finding, the judgment under challenge deserves to be set aside. We, accordingly, set aside the impugned judgment and send the case back to a Division Bench of the High Court to decide the writ appeal in light of observation made hereinbefore. It will be open to the parties to file fresh affidavits, if they are so advised.
### Response:
1
### Explanation:
We have perused the judgment but we do not find any finding recorded by the High Court that the plea of the appellant that it has already given employment to land holders or their nominees is incorrect. In the absence of such finding, the judgment under challenge deserves to be set aside. We, accordingly, set aside the impugned judgment and send the case back to a Division Bench of the High Court to decide the writ appeal in light of observation made hereinbefore. It will be open to the parties to file fresh affidavits, if they are so advisedC.A. No. 6187/2001 @ S.L.P. No. 9991/1998We are therefore, of the view that the plea raised in thet by the company was required to be considered by the High Court. We, therefore, set aside the order under challenge and send the case back to a Division Bench of the High Court to decide the case afresh in the light of observation made hereinbefore. It will be open to the parties to file fresh affidavit and raise such contentions which may be available to them under law.
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Jain Bros. & Others Vs. The Union Of India & Others | for the imposition of penalty it is not the assessment year or the date of the filing of the return which is important but it is the satisfaction of the income-tax authorities that a default has been committed by the assessee which would attract the provisions relating to penalty.Whatever the stage at which the satisfaction is reached, the scheme of Sections 274 (1) and 275 of the Act of 1961 is that the order imposing penalty must be made after the completion of the assessment.The crucial date, therefore, for purposes of penalty is the date of such completion.It is equally difficult to understand the argument that because it rests with the Income-tax Officer to complete the assessment by a particular date it will depend on his fiat whether the penalty should be imposed under the Act of 1922 or under the Act of 1961. There is no presumption that officers or authorities who are entrusted with responsible duties under the taxation laws would not discharge them properly and in a bona fide manner.If in a particular case any mala fide action is taken that can always be challenged by an assessee in appropriate proceedings but the mere possibility that some officer may intentionally delay the disposal of a case can hardly be a ground for striking down clause (g) as discriminatory under Article 14.We are clearly of the view, in concurrence with the decision in Gopi Chand Sarjuprasad v. Union of India, 73 ITR 263 = (AIR 1969 MP 220 ) and Income-tax Officer A-Ward, Agra v. Firm Madan Mohan Danna Mal, (1968) 70 ITR 293 (All) that no discrimination was practised in enacting that clause which would attract the application of Article 14.The classification made is based on intelligible differentia having reasonable relation to the object intended to be achieved. The object essentially was to prevent the evasion of tax.12. We are further unable to agree that the language of Section 271 does not warrant the taking of proceedings under that Section when a default has been committed by failure to comply with a notice issued under Section 22 (2) of the Act of 1922. It is true that clause (a) of sub-section (1) of Section 271 mentions the corresponding provisions of the Act of 1961 but that will not make the part relating to payment of penalty inapplicable once it is held that Section 297 (2) (g) governs the case. Both Sections 271 (1) and 297 (2) (g) have to be read together and in harmony and so read the only conclusion possible is that for the imposition of a penalty in respect of any assessment for the year ending on March 31, 1962 or any earlier year which is completed after first day of April 1962 the proceedings have to be initiated and the penalty imposed in accordance with the provisions of Section 271 of the Act of 1961.Thus the assessee would be liable to a penalty as provided by Section 271 (1) for the default mentioned in S. 28 (1) of the Act of 1922 if his case falls within the terms of Section 297 (2) (g).We may usefully refer to this Courts decision in Third Income-tax Officer Mangalore v. Damodar Bhat, 71 ITR 806 = (AIR 1969 SC 408 ) with reference to Section 297 (2) (j) of the Act of 1961. According to it in a case falling within that Section in a proceeding for recovery of tax and penalty imposed under the Act of 1922 it is not required that all the Sections of the new Act relating to recovery or collection should be literally applied but only such of the Sections will apply as are appropriate in the particular case and subject, if necessary, to suitable modifications. In other words, the procedure of the new Act will apply to cases contemplated by Section 297 (2) (j) of the new Act mutatis mutandis.Similarly the provisions of Section 271 of the Act of 1961 will apply mutatis mutandis to proceedings relating to penalty initiated in accordance with Section 297 (2) (g) of that Act.13. Lastly the challenge to Section 271 (2) of the Act of 1961 on the ground of contravention of Article 14 may be considered.According to that provision when the person liable to penalty is a registered firm then notwithstanding anything contained in the other provisions of the Act of 1961 the penalty imposable under sub-section (1) shall be the same amount as would be imposable on that firm if that firm were an unregistered firm.It is pointed out that in the case of assessees other than registered firms the maximum penalty imposable under Section 271(1) (i) cannot exceed in aggregate 50 per cent of the tax payable by the assessee; whereas in the case of a registered firm the maximum penalty is not made to depend upon the tax assessed on or payable by such firm. On the contrary the registered firm will have to pay the same penalty as an unregistered firm which may far exceed the maximum limit of 50 per cent prescribed by the above provision. This, according to the appellants, constitutes discrimination under Article 14 of the Constitution. Now a firm when registered is treated as a separate entity liable to tax. After 1956 it has to pay tax at a special reduced rate. If a firm got itself registered the partners were entitled to certain benefits and advantages.It was, however, open to the legislature to say that once a registered firm committed a default attracting penalty it should be deemed or considered to be an unregistered firm for the purpose of its imposition. No question of discrimination under Article 14 can arise in such a situation. We fully share the view of the High Court that there was nothing to prevent the legislature from giving the benefit of a reduced rate to a registered firm for the purpose of tax but withhold the same when it committed a default and became liable to imposition of penalty.14. | 0[ds]It is well settled that in fiscal enactments the legislature has a larger discretion in the matter of classification so long as there is no departure from the rule that persons included in class are not singled out for special treatment. It is not possible to say that while applying the penalty provisions contained in the Act of 1961 to cases of persons whose assessments are completed after first April 1962 any class has been singled out for special treatment.It is obvious that for the imposition of penalty it is not the assessment year or the date of the filing of the return which is important but it is the satisfaction of the income-tax authorities that a default has been committed by the assessee which would attract the provisions relating to penalty.Whatever the stage at which the satisfaction is reached, the scheme of Sections 274 (1) and 275 of the Act of 1961 is that the order imposing penalty must be made after the completion of the assessment.The crucial date, therefore, for purposes of penalty is the date of such completion.It is equally difficult to understand the argument that because it rests with the Income-tax Officer to complete the assessment by a particular date it will depend on his fiat whether the penalty should be imposed under the Act of 1922 or under the Act of 1961. There is no presumption that officers or authorities who are entrusted with responsible duties under the taxation laws would not discharge them properly and in a bona fide manner.If in a particular case any mala fide action is taken that can always be challenged by an assessee in appropriate proceedings but the mere possibility that some officer may intentionally delay the disposal of a case can hardly be a ground for striking down clause (g) as discriminatory under Article 14.We are clearly of the view, in concurrence with the decision in Gopi Chand Sarjuprasad v. Union of India, 73 ITR 263 = (AIR 1969 MP 220 ) and Income-tax Officer A-Ward, Agra v. Firm Madan Mohan Danna Mal, (1968) 70 ITR 293 (All) that no discrimination was practised in enacting that clause which would attract the application of Article 14.The classification made is based on intelligible differentia having reasonable relation to the object intended to be achieved. The object essentially was to prevent the evasion of tax.We are further unable to agree that the language of Section 271 does not warrant the taking of proceedings under that Section when a default has been committed by failure to comply with a notice issued under Section 22 (2) of the Act of 1922. It is true that clause (a) of sub-section (1) of Section 271 mentions the corresponding provisions of the Act of 1961 but that will not make the part relating to payment of penalty inapplicable once it is held that Section 297 (2) (g) governs the case. Both Sections 271 (1) and 297 (2) (g) have to be read together and in harmony and so read the only conclusion possible is that for the imposition of a penalty in respect of any assessment for the year ending on March 31, 1962 or any earlier year which is completed after first day of April 1962 the proceedings have to be initiated and the penalty imposed in accordance with the provisions of Section 271 of the Act of 1961.Thus the assessee would be liable to a penalty as provided by Section 271 (1) for the default mentioned in S. 28 (1) of the Act of 1922 if his case falls within the terms of Section 297 (2) (g).We may usefully refer to this Courts decision in Third Income-tax Officer Mangalore v. Damodar Bhat, 71 ITR 806 = (AIR 1969 SC 408 ) with reference to Section 297 (2) (j) of the Act of 1961. According to it in a case falling within that Section in a proceeding for recovery of tax and penalty imposed under the Act of 1922 it is not required that all the Sections of the new Act relating to recovery or collection should be literally applied but only such of the Sections will apply as are appropriate in the particular case and subject, if necessary, to suitable modifications. In other words, the procedure of the new Act will apply to cases contemplated by Section 297 (2) (j) of the new Act mutatis mutandis.Similarly the provisions of Section 271 of the Act of 1961 will apply mutatis mutandis to proceedings relating to penalty initiated in accordance with Section 297 (2) (g) of that Act.Lastly the challenge to Section 271 (2) of the Act of 1961 on the ground of contravention of Article 14 may be considered.According to that provision when the person liable to penalty is a registered firm then notwithstanding anything contained in the other provisions of the Act of 1961 the penalty imposable under sub-section (1) shall be the same amount as would be imposable on that firm if that firm were an unregistered firm.It is pointed out that in the case of assessees other than registered firms the maximum penalty imposable under Section 271(1) (i) cannot exceed in aggregate 50 per cent of the tax payable by the assessee; whereas in the case of a registered firm the maximum penalty is not made to depend upon the tax assessed on or payable by such firm. On the contrary the registered firm will have to pay the same penalty as an unregistered firm which may far exceed the maximum limit of 50 per cent prescribed by the above provision. This, according to the appellants, constitutes discrimination under Article 14 of the Constitution. Now a firm when registered is treated as a separate entity liable to tax. After 1956 it has to pay tax at a special reduced rate. If a firm got itself registered the partners were entitled to certain benefits and advantages.It was, however, open to the legislature to say that once a registered firm committed a default attracting penalty it should be deemed or considered to be an unregistered firm for the purpose of its imposition. No question of discrimination under Article 14 can arise in such a situation. We fully share the view of the High Court that there was nothing to prevent the legislature from giving the benefit of a reduced rate to a registered firm for the purpose of tax but withhold the same when it committed a default and became liable to imposition of penalty. | 0 | 5,642 | 1,174 | ### Instruction:
Predict whether the case will result in an affirmative (1) or negative (0) decision for the appeal, and then provide a thorough explanation using key sentences to support your prediction.
### Input:
for the imposition of penalty it is not the assessment year or the date of the filing of the return which is important but it is the satisfaction of the income-tax authorities that a default has been committed by the assessee which would attract the provisions relating to penalty.Whatever the stage at which the satisfaction is reached, the scheme of Sections 274 (1) and 275 of the Act of 1961 is that the order imposing penalty must be made after the completion of the assessment.The crucial date, therefore, for purposes of penalty is the date of such completion.It is equally difficult to understand the argument that because it rests with the Income-tax Officer to complete the assessment by a particular date it will depend on his fiat whether the penalty should be imposed under the Act of 1922 or under the Act of 1961. There is no presumption that officers or authorities who are entrusted with responsible duties under the taxation laws would not discharge them properly and in a bona fide manner.If in a particular case any mala fide action is taken that can always be challenged by an assessee in appropriate proceedings but the mere possibility that some officer may intentionally delay the disposal of a case can hardly be a ground for striking down clause (g) as discriminatory under Article 14.We are clearly of the view, in concurrence with the decision in Gopi Chand Sarjuprasad v. Union of India, 73 ITR 263 = (AIR 1969 MP 220 ) and Income-tax Officer A-Ward, Agra v. Firm Madan Mohan Danna Mal, (1968) 70 ITR 293 (All) that no discrimination was practised in enacting that clause which would attract the application of Article 14.The classification made is based on intelligible differentia having reasonable relation to the object intended to be achieved. The object essentially was to prevent the evasion of tax.12. We are further unable to agree that the language of Section 271 does not warrant the taking of proceedings under that Section when a default has been committed by failure to comply with a notice issued under Section 22 (2) of the Act of 1922. It is true that clause (a) of sub-section (1) of Section 271 mentions the corresponding provisions of the Act of 1961 but that will not make the part relating to payment of penalty inapplicable once it is held that Section 297 (2) (g) governs the case. Both Sections 271 (1) and 297 (2) (g) have to be read together and in harmony and so read the only conclusion possible is that for the imposition of a penalty in respect of any assessment for the year ending on March 31, 1962 or any earlier year which is completed after first day of April 1962 the proceedings have to be initiated and the penalty imposed in accordance with the provisions of Section 271 of the Act of 1961.Thus the assessee would be liable to a penalty as provided by Section 271 (1) for the default mentioned in S. 28 (1) of the Act of 1922 if his case falls within the terms of Section 297 (2) (g).We may usefully refer to this Courts decision in Third Income-tax Officer Mangalore v. Damodar Bhat, 71 ITR 806 = (AIR 1969 SC 408 ) with reference to Section 297 (2) (j) of the Act of 1961. According to it in a case falling within that Section in a proceeding for recovery of tax and penalty imposed under the Act of 1922 it is not required that all the Sections of the new Act relating to recovery or collection should be literally applied but only such of the Sections will apply as are appropriate in the particular case and subject, if necessary, to suitable modifications. In other words, the procedure of the new Act will apply to cases contemplated by Section 297 (2) (j) of the new Act mutatis mutandis.Similarly the provisions of Section 271 of the Act of 1961 will apply mutatis mutandis to proceedings relating to penalty initiated in accordance with Section 297 (2) (g) of that Act.13. Lastly the challenge to Section 271 (2) of the Act of 1961 on the ground of contravention of Article 14 may be considered.According to that provision when the person liable to penalty is a registered firm then notwithstanding anything contained in the other provisions of the Act of 1961 the penalty imposable under sub-section (1) shall be the same amount as would be imposable on that firm if that firm were an unregistered firm.It is pointed out that in the case of assessees other than registered firms the maximum penalty imposable under Section 271(1) (i) cannot exceed in aggregate 50 per cent of the tax payable by the assessee; whereas in the case of a registered firm the maximum penalty is not made to depend upon the tax assessed on or payable by such firm. On the contrary the registered firm will have to pay the same penalty as an unregistered firm which may far exceed the maximum limit of 50 per cent prescribed by the above provision. This, according to the appellants, constitutes discrimination under Article 14 of the Constitution. Now a firm when registered is treated as a separate entity liable to tax. After 1956 it has to pay tax at a special reduced rate. If a firm got itself registered the partners were entitled to certain benefits and advantages.It was, however, open to the legislature to say that once a registered firm committed a default attracting penalty it should be deemed or considered to be an unregistered firm for the purpose of its imposition. No question of discrimination under Article 14 can arise in such a situation. We fully share the view of the High Court that there was nothing to prevent the legislature from giving the benefit of a reduced rate to a registered firm for the purpose of tax but withhold the same when it committed a default and became liable to imposition of penalty.14.
### Response:
0
### Explanation:
is not the assessment year or the date of the filing of the return which is important but it is the satisfaction of the income-tax authorities that a default has been committed by the assessee which would attract the provisions relating to penalty.Whatever the stage at which the satisfaction is reached, the scheme of Sections 274 (1) and 275 of the Act of 1961 is that the order imposing penalty must be made after the completion of the assessment.The crucial date, therefore, for purposes of penalty is the date of such completion.It is equally difficult to understand the argument that because it rests with the Income-tax Officer to complete the assessment by a particular date it will depend on his fiat whether the penalty should be imposed under the Act of 1922 or under the Act of 1961. There is no presumption that officers or authorities who are entrusted with responsible duties under the taxation laws would not discharge them properly and in a bona fide manner.If in a particular case any mala fide action is taken that can always be challenged by an assessee in appropriate proceedings but the mere possibility that some officer may intentionally delay the disposal of a case can hardly be a ground for striking down clause (g) as discriminatory under Article 14.We are clearly of the view, in concurrence with the decision in Gopi Chand Sarjuprasad v. Union of India, 73 ITR 263 = (AIR 1969 MP 220 ) and Income-tax Officer A-Ward, Agra v. Firm Madan Mohan Danna Mal, (1968) 70 ITR 293 (All) that no discrimination was practised in enacting that clause which would attract the application of Article 14.The classification made is based on intelligible differentia having reasonable relation to the object intended to be achieved. The object essentially was to prevent the evasion of tax.We are further unable to agree that the language of Section 271 does not warrant the taking of proceedings under that Section when a default has been committed by failure to comply with a notice issued under Section 22 (2) of the Act of 1922. It is true that clause (a) of sub-section (1) of Section 271 mentions the corresponding provisions of the Act of 1961 but that will not make the part relating to payment of penalty inapplicable once it is held that Section 297 (2) (g) governs the case. Both Sections 271 (1) and 297 (2) (g) have to be read together and in harmony and so read the only conclusion possible is that for the imposition of a penalty in respect of any assessment for the year ending on March 31, 1962 or any earlier year which is completed after first day of April 1962 the proceedings have to be initiated and the penalty imposed in accordance with the provisions of Section 271 of the Act of 1961.Thus the assessee would be liable to a penalty as provided by Section 271 (1) for the default mentioned in S. 28 (1) of the Act of 1922 if his case falls within the terms of Section 297 (2) (g).We may usefully refer to this Courts decision in Third Income-tax Officer Mangalore v. Damodar Bhat, 71 ITR 806 = (AIR 1969 SC 408 ) with reference to Section 297 (2) (j) of the Act of 1961. According to it in a case falling within that Section in a proceeding for recovery of tax and penalty imposed under the Act of 1922 it is not required that all the Sections of the new Act relating to recovery or collection should be literally applied but only such of the Sections will apply as are appropriate in the particular case and subject, if necessary, to suitable modifications. In other words, the procedure of the new Act will apply to cases contemplated by Section 297 (2) (j) of the new Act mutatis mutandis.Similarly the provisions of Section 271 of the Act of 1961 will apply mutatis mutandis to proceedings relating to penalty initiated in accordance with Section 297 (2) (g) of that Act.Lastly the challenge to Section 271 (2) of the Act of 1961 on the ground of contravention of Article 14 may be considered.According to that provision when the person liable to penalty is a registered firm then notwithstanding anything contained in the other provisions of the Act of 1961 the penalty imposable under sub-section (1) shall be the same amount as would be imposable on that firm if that firm were an unregistered firm.It is pointed out that in the case of assessees other than registered firms the maximum penalty imposable under Section 271(1) (i) cannot exceed in aggregate 50 per cent of the tax payable by the assessee; whereas in the case of a registered firm the maximum penalty is not made to depend upon the tax assessed on or payable by such firm. On the contrary the registered firm will have to pay the same penalty as an unregistered firm which may far exceed the maximum limit of 50 per cent prescribed by the above provision. This, according to the appellants, constitutes discrimination under Article 14 of the Constitution. Now a firm when registered is treated as a separate entity liable to tax. After 1956 it has to pay tax at a special reduced rate. If a firm got itself registered the partners were entitled to certain benefits and advantages.It was, however, open to the legislature to say that once a registered firm committed a default attracting penalty it should be deemed or considered to be an unregistered firm for the purpose of its imposition. No question of discrimination under Article 14 can arise in such a situation. We fully share the view of the High Court that there was nothing to prevent the legislature from giving the benefit of a reduced rate to a registered firm for the purpose of tax but withhold the same when it committed a default and became liable to imposition of penalty.
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S. Chattanatha Karayalar Vs. The Central Bank Of India And Others | plaint the plaintiff-bank asked for a decree against the defendants jointly and severally "for the recover of Rs. 2,86,292/11/11 as per accounts annexed". In the plaint it is stated that the plaintiff had given two notices to the defendantsEx. Odated January 1, 1950 and Ex. L dated April 26, 1950 but in neither of these notices has the plaintiff referred to the promissory note executed by the defendants or that the suit was based upon the promissory note. On the contrary, the plaintiff bank referred in Ex.Oto the open loan accounts and asked the defendants to pay the amounts due to the bank under these accounts. It is therefore, not possible for us to accept the contention of Mr. Pathak that the suit is based upon the promissory note and not upon the amount due on the overdraft account. In this connection, we may incidentally refer to the fact that in its statement of the case before this Court, respondent No. I has clearly stated that the claim on the overdraft account against the appellant was valid "because the overdraft was treated as in favour of all the defendants . (appellant and respondents 2 and 3 herein) and that respondent No. 2 was only authorised to operate independently on that amount and that the limit under the overdraft was placed at the disposal of respondent No. 2 by an express authority given by all the defendants (the appellant and respondents 2 and 3", This shows that respondent No. 1s case is that a suit is based on an overdraft, and since the overdraft was treated as in. favour of all the defendants the appellant is liable for the balance due on it. 6. We shall then consider the question whether defendant No. 2 is discharged of his liability as a surety by reason of the alleged conduct of the plaintiff-bank is violating the terms of the agreement - Ex. G or by the alleged fraudulent or negligent conduct of the plaintiff-bank in other ways. It was submitted on behalf of the appellant that the plaintiff-bank had made adjustments in the open loan account and in the clean overdraft account with the 1st defendant by debiting and correspondingly credting in other accounts without the consent of the appellant. It was further alleged that the plaintiff-bank had granted loans to the lst defendant against goods covered by open loan agreement and that it had converted secured loans into simple loans by releasing goods covered by the Bills of Lading against trust receipts and had thereby deliberately frittered away such securities. The question at issue is a mixed question of law and fact and it is unfortunate that the High Court has not properly dealt with this question or given a finding whether the appellant would be discharged from the liability as a surety for the overdraft account because of the alleged conduct of the plaintiff-bank. We consider it necessary that this case should go back on remand to the High Court of Kerala for deciding the issue and to give proper relief to the parties. In this connection, it is necessary to point out that after the High Court delivered its judgment on July 12, 1962, an application was made by the learned Advocate appearing for the appellant that some grounds which had been urged by him before the High Court had not been considered by it. The High Court, therefore, adopted the somewhat unusual course of delivering a supplemental judgment. Mr. Desai contends that even the supplemental judgment has failed to consider the appellants contention that he had been discharged by reason of the fact that adjustments were made by respondent. No. 1 indiscriminately in respect of its dealings in three or four different accounts with respondent No. 2 to the prejudice of the appellant. We have broadly indicated the nature of the contention raised by Mr. Desai. 7. Ordinarily, we do not permit parties to urge that points raised on their behalf in the High Court had not been considered, unless it is established to our satisfaction that the points in question had in fact been urged before the High Court and the High Court, through inadvertence, has failed to consider them. In the presem case, we are not prepared to take the view that the grievance made by Mr. Desai is not well-founded. It does appear that after the first judgment was delivered, an application was made by the learned Advocate who argued the appeal himself before the High Court in which he set out his complaint that some of the points which he had argued before the High Court had not been considered by it. That is why the High Court delivered a supplemental judgment. Aggrieved by the said judgment, the appellant filed an application for certificate before the High Court, and in this application again he has taken specific grounds, e.g. under paragraph 6(k) and paragraph 8 that even the supplemental judgment has failed to consider some of the points, urged by him. While granting the certificate, the High Court has made no comment on these grounds. It is to be regretted that when these grounds appear to have been urged before the High Court, the High Court should have failed to deal with them even in its supplemental judgment. That is the reason why we think it is necessary that the matter must go back to the High Court for disposal of the appeal in the light of this judgment. 8. Mr. Pathak, no doubt, seriously contested the validity of Mr. Desais argument. He urged that the adjustments on which Mr. Desai has founded his claim for discharge do not really support his case. We propose to express no opinion on this point. As we have just observed, the contention thus raised amounts to a mixed question of fact and law and we do not think it would be expedient for us to deal with it ourselves when the High Court has omitted to consider it. | 1[ds]6. We shall then consider the question whether defendant No. 2 is discharged of his liability as a surety by reason of the alleged conduct of the plaintiff-bank is violating the terms of the agreement - Ex. G or by the alleged fraudulent or negligent conduct of the plaintiff-bank in other ways.It was submitted on behalf of the appellant that the plaintiff-bank had made adjustments in the open loan account and in the clean overdraft account with the 1st defendant by debiting and correspondingly credting in other accounts without the consent of the appellant. It was further alleged that the plaintiff-bank had granted loans to the lst defendant against goods covered by open loan agreement and that it had converted secured loans into simple loans by releasing goods covered by the Bills of Lading against trust receipts and had thereby deliberately frittered away such securities. The question at issue is a mixed question of law and fact and it is unfortunate that the High Court has not properly dealt with this question or given a finding whether the appellant would be discharged from the liability as a surety for the overdraft account because of the alleged conduct of the plaintiff-bank. We consider it necessary that this case should go back on remand to the High Court of Kerala for deciding the issue and to give proper relief to the parties. In this connection, it is necessary to point out that after the High Court delivered its judgment on July 12, 1962, an application was made by the learned Advocate appearing for the appellant that some grounds which had been urged by him before the High Court had not been considered by it. The High Court, therefore, adopted the somewhat unusual course of delivering a supplemental judgment. Mr. Desai contends that even the supplemental judgment has failed to consider the appellants contention that he had been discharged by reason of the fact that adjustments were made by respondent. No. 1 indiscriminately in respect of its dealings in three or four different accounts with respondent No. 2 to the prejudice of the appellant. We have broadly indicated the nature of the contention raised by Mr. Desai7. Ordinarily, we do not permit parties to urge that points raised on their behalf in the High Court had not been considered, unless it is established to our satisfaction that the points in question had in fact been urged before the High Court and the High Court, through inadvertence, has failed to consider them. In the presem case, we are not prepared to take the view that the grievance made by Mr. Desai is not well-founded. It does appear that after the first judgment was delivered, an application was made by the learned Advocate who argued the appeal himself before the High Court in which he set out his complaint that some of the points which he had argued before the High Court had not been considered by it. That is why the High Court delivered a supplemental judgment. Aggrieved by the said judgment, the appellant filed an application for certificate before the High Court, and in this application again he has taken specific grounds, e.g. under paragraph 6(k) and paragraph 8 that even the supplemental judgment has failed to consider some of the points, urged by him. While granting the certificate, the High Court has made no comment on these grounds. It is to be regretted that when these grounds appear to have been urged before the High Court, the High Court should have failed to deal with them even in its supplemental judgment. That is the reason why we think it is necessary that the matter must go back to the High Court for disposal of the appeal in the light of this judgment8. Mr. Pathak, no doubt, seriously contested the validity of Mr. Desais argument. He urged that the adjustments on which Mr. Desai has founded his claim for discharge do not really support his case. We propose to express no opinion on this point. As we have just observed, the contention thus raised amounts to a mixed question of fact and law and we do not think it would be expedient for us to deal with it ourselves when the High Court has omitted to consider it. | 1 | 4,836 | 769 | ### Instruction:
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plaint the plaintiff-bank asked for a decree against the defendants jointly and severally "for the recover of Rs. 2,86,292/11/11 as per accounts annexed". In the plaint it is stated that the plaintiff had given two notices to the defendantsEx. Odated January 1, 1950 and Ex. L dated April 26, 1950 but in neither of these notices has the plaintiff referred to the promissory note executed by the defendants or that the suit was based upon the promissory note. On the contrary, the plaintiff bank referred in Ex.Oto the open loan accounts and asked the defendants to pay the amounts due to the bank under these accounts. It is therefore, not possible for us to accept the contention of Mr. Pathak that the suit is based upon the promissory note and not upon the amount due on the overdraft account. In this connection, we may incidentally refer to the fact that in its statement of the case before this Court, respondent No. I has clearly stated that the claim on the overdraft account against the appellant was valid "because the overdraft was treated as in favour of all the defendants . (appellant and respondents 2 and 3 herein) and that respondent No. 2 was only authorised to operate independently on that amount and that the limit under the overdraft was placed at the disposal of respondent No. 2 by an express authority given by all the defendants (the appellant and respondents 2 and 3", This shows that respondent No. 1s case is that a suit is based on an overdraft, and since the overdraft was treated as in. favour of all the defendants the appellant is liable for the balance due on it. 6. We shall then consider the question whether defendant No. 2 is discharged of his liability as a surety by reason of the alleged conduct of the plaintiff-bank is violating the terms of the agreement - Ex. G or by the alleged fraudulent or negligent conduct of the plaintiff-bank in other ways. It was submitted on behalf of the appellant that the plaintiff-bank had made adjustments in the open loan account and in the clean overdraft account with the 1st defendant by debiting and correspondingly credting in other accounts without the consent of the appellant. It was further alleged that the plaintiff-bank had granted loans to the lst defendant against goods covered by open loan agreement and that it had converted secured loans into simple loans by releasing goods covered by the Bills of Lading against trust receipts and had thereby deliberately frittered away such securities. The question at issue is a mixed question of law and fact and it is unfortunate that the High Court has not properly dealt with this question or given a finding whether the appellant would be discharged from the liability as a surety for the overdraft account because of the alleged conduct of the plaintiff-bank. We consider it necessary that this case should go back on remand to the High Court of Kerala for deciding the issue and to give proper relief to the parties. In this connection, it is necessary to point out that after the High Court delivered its judgment on July 12, 1962, an application was made by the learned Advocate appearing for the appellant that some grounds which had been urged by him before the High Court had not been considered by it. The High Court, therefore, adopted the somewhat unusual course of delivering a supplemental judgment. Mr. Desai contends that even the supplemental judgment has failed to consider the appellants contention that he had been discharged by reason of the fact that adjustments were made by respondent. No. 1 indiscriminately in respect of its dealings in three or four different accounts with respondent No. 2 to the prejudice of the appellant. We have broadly indicated the nature of the contention raised by Mr. Desai. 7. Ordinarily, we do not permit parties to urge that points raised on their behalf in the High Court had not been considered, unless it is established to our satisfaction that the points in question had in fact been urged before the High Court and the High Court, through inadvertence, has failed to consider them. In the presem case, we are not prepared to take the view that the grievance made by Mr. Desai is not well-founded. It does appear that after the first judgment was delivered, an application was made by the learned Advocate who argued the appeal himself before the High Court in which he set out his complaint that some of the points which he had argued before the High Court had not been considered by it. That is why the High Court delivered a supplemental judgment. Aggrieved by the said judgment, the appellant filed an application for certificate before the High Court, and in this application again he has taken specific grounds, e.g. under paragraph 6(k) and paragraph 8 that even the supplemental judgment has failed to consider some of the points, urged by him. While granting the certificate, the High Court has made no comment on these grounds. It is to be regretted that when these grounds appear to have been urged before the High Court, the High Court should have failed to deal with them even in its supplemental judgment. That is the reason why we think it is necessary that the matter must go back to the High Court for disposal of the appeal in the light of this judgment. 8. Mr. Pathak, no doubt, seriously contested the validity of Mr. Desais argument. He urged that the adjustments on which Mr. Desai has founded his claim for discharge do not really support his case. We propose to express no opinion on this point. As we have just observed, the contention thus raised amounts to a mixed question of fact and law and we do not think it would be expedient for us to deal with it ourselves when the High Court has omitted to consider it.
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6. We shall then consider the question whether defendant No. 2 is discharged of his liability as a surety by reason of the alleged conduct of the plaintiff-bank is violating the terms of the agreement - Ex. G or by the alleged fraudulent or negligent conduct of the plaintiff-bank in other ways.It was submitted on behalf of the appellant that the plaintiff-bank had made adjustments in the open loan account and in the clean overdraft account with the 1st defendant by debiting and correspondingly credting in other accounts without the consent of the appellant. It was further alleged that the plaintiff-bank had granted loans to the lst defendant against goods covered by open loan agreement and that it had converted secured loans into simple loans by releasing goods covered by the Bills of Lading against trust receipts and had thereby deliberately frittered away such securities. The question at issue is a mixed question of law and fact and it is unfortunate that the High Court has not properly dealt with this question or given a finding whether the appellant would be discharged from the liability as a surety for the overdraft account because of the alleged conduct of the plaintiff-bank. We consider it necessary that this case should go back on remand to the High Court of Kerala for deciding the issue and to give proper relief to the parties. In this connection, it is necessary to point out that after the High Court delivered its judgment on July 12, 1962, an application was made by the learned Advocate appearing for the appellant that some grounds which had been urged by him before the High Court had not been considered by it. The High Court, therefore, adopted the somewhat unusual course of delivering a supplemental judgment. Mr. Desai contends that even the supplemental judgment has failed to consider the appellants contention that he had been discharged by reason of the fact that adjustments were made by respondent. No. 1 indiscriminately in respect of its dealings in three or four different accounts with respondent No. 2 to the prejudice of the appellant. We have broadly indicated the nature of the contention raised by Mr. Desai7. Ordinarily, we do not permit parties to urge that points raised on their behalf in the High Court had not been considered, unless it is established to our satisfaction that the points in question had in fact been urged before the High Court and the High Court, through inadvertence, has failed to consider them. In the presem case, we are not prepared to take the view that the grievance made by Mr. Desai is not well-founded. It does appear that after the first judgment was delivered, an application was made by the learned Advocate who argued the appeal himself before the High Court in which he set out his complaint that some of the points which he had argued before the High Court had not been considered by it. That is why the High Court delivered a supplemental judgment. Aggrieved by the said judgment, the appellant filed an application for certificate before the High Court, and in this application again he has taken specific grounds, e.g. under paragraph 6(k) and paragraph 8 that even the supplemental judgment has failed to consider some of the points, urged by him. While granting the certificate, the High Court has made no comment on these grounds. It is to be regretted that when these grounds appear to have been urged before the High Court, the High Court should have failed to deal with them even in its supplemental judgment. That is the reason why we think it is necessary that the matter must go back to the High Court for disposal of the appeal in the light of this judgment8. Mr. Pathak, no doubt, seriously contested the validity of Mr. Desais argument. He urged that the adjustments on which Mr. Desai has founded his claim for discharge do not really support his case. We propose to express no opinion on this point. As we have just observed, the contention thus raised amounts to a mixed question of fact and law and we do not think it would be expedient for us to deal with it ourselves when the High Court has omitted to consider it.
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Abdul Waheed Khan Vs. Bhawani And Ors | fit. * * * * (2) Such order, if passed with reference to any entry in the register of rights, shall not be subject to appeal, but no such order shall debar any person from establishing any right to land in a civil Court, and the civil Court may direct that the entry relating to the land shall be altered in accordance with its decision. (3) Any such order, if passed with reference to a record other than the register of rights shall be subject to appeal but shall not be called in question in a civil Court, except in so far as any private right is infringed and then only by a suit instituted within one year from the date on which the contents of the record were announced under S. 88 Section 95. Any entry in the register of rights shall be presumed to be correct until the contrary is proved, and all other entries in the record of rights, subject to any change which may be ordered in appeal, revision or review only or by a civil Court under subs. (3) of S. 93, shall be conclusive evidence of the facts to which they relate. On the basis of the said provisions it is argued that under the said provisions the right of a person to hold land shall be entered in the register of rights under S. 89 (2) of the Act and a dispute in respect thereof shall be decided by the Tahsildar under S. 93 (1) thereof and that thereafter such an entry shall be rectified only by filing a suit in a civil Court in the manner prescribed in S. 93 (2) of the Act and that, therefore, the Tahsildar, subject to the statutory suit, has the exclusive jurisdiction to determine or decide the question in regard to the said matter within the meaning of S. 200 of the Act. This argument appears to be plausible, but a deeper scrutiny reveals a fallacy. The scope of an entry in regard to the right to hold a land under S. 89 (2) of the Act and the decision under S. 93 thereof is disclosed by S. 95. When such an entry is made in the register of rights and is not corrected in the manner prescribed in S. 93, under S. 95 it shall be presumed to be correct until the contrary is proved. The effect of such an entry, therefore, is only to make it a presumptive piece of evidence in a collateral proceeding: that is to say, in a suit based on title when such an entry is relied upon by one or other of the parties, the Court shall presume it to be correct unless the other party rebuts the presumption. Not only S 95 does not by necessary implication bar a suit but also assumes that in such a suit the correctness of such an entry could be questioned subject to the said presumption. 11. Learned counsel for the appellant, in support of his contention, relied upon Gokhul Sahu v. Jodu Nundun Roy, (1890) ILR 17 Cal 721 and Jatindra Nath v. Azizur Rahaman, AIR 1923 Cal 433 . Those decisions turned upon provisions which are not in pari materia with those with which we are now concerned. They do not, therefore, throw any light on the construction of the relevant provisions of the Act. 12. It is, therefore, clear that S. 200 (1) of the Act, read with the said group of sections, does not exclude the jurisdiction of a civil court to entertain a suit based on title. 13. Learned counsel for the appellant then contended that though the patta was granted in favour of the ancestors of the respondents in the year 1929 it was revoked later on, that under the new settlement of 1935 the appellants name was recorded in the register of rights, that in subsequent khasras upto 1953 his name continued to be shown as the owner of the suit land and that, therefore, the Court below should have held that the presumption raised by the register of rights in his favour was not rebutted and the plaintiff had failed to prove his title. But a perusal of the judgments of the Courts below shows that all the Courts, after taking into consideration the entire oral and documentary evidence, came to the conclusion that the respondents had established their title. Indeed, though the High court rightly pointed out that the finding of fact given by the lower appellate Court was conclusive, in view of the insistence of the Advocate in the High Court, it considered the entire documentary and oral evidence over-again and came to the same conclusion. It also admitted the notifications in respect of the settlement as fresh evidence and, after considering them, held that they did not disclose that the patta issued in favour of the respondents ancestors was cancelled. In our view, the High Court should have accepted the finding of the first appellate Court and should not have reviewed the evidence over again. The Courts in effect held that the said presumption was rebutted by the oral and documentary evidence adduced by the respondents. We are not, therefore, justified in an appeal under Art. 136 of the Constitution to permit the appellant to canvass the correctness of the said concurrent findings of fact. 14. The last argument raises a question of limitation. If, as we have held, the suit is outside the scope of the Act, the question of limitation turns upon the provisions of the Indian Limitation Act. The suit was originally filed by the respondents for a declaration of their title to the suit property, but as they were dispossessed of the land on March 5, 1953, subsequent to the filing of the suit, the plaint was amended on July 24, 1954, praying for delivery of possession. To such a suit Art. 142 of the Limitation Act applies. The suit is, therefore, clearly not barred by limitation. | 0[ds]This argument appears to be plausible, but a deeper scrutiny reveals a fallacy. The scope of an entry in regard to the right to hold a land under S. 89 (2) of the Act and the decision under S. 93 thereof is disclosed by S. 95. When such an entry is made in the register of rights and is not corrected in the manner prescribed in S. 93, under S. 95 it shall be presumed to be correct until the contrary is proved. The effect of such an entry, therefore, is only to make it a presumptive piece of evidence in a collateral proceeding: that is to say, in a suit based on title when such an entry is relied upon by one or other of the parties, the Court shall presume it to be correct unless the other party rebuts the presumption. Not only S 95 does not by necessary implication bar a suit but also assumes that in such a suit the correctness of such an entry could be questioned subject to the said presumption12. It is, therefore, clear that S. 200 (1) of the Act, read with the said group of sections, does not exclude the jurisdiction of a civil court to entertain a suit based on titleBut a perusal of the judgments of the Courts below shows that all the Courts, after taking into consideration the entire oral and documentary evidence, came to the conclusion that the respondents had established their title. Indeed, though the High court rightly pointed out that the finding of fact given by the lower appellate Court was conclusive, in view of the insistence of the Advocate in the High Court, it considered the entire documentary and oral evidence over-again and came to the same conclusion. It also admitted the notifications in respect of the settlement as fresh evidence and, after considering them, held that they did not disclose that the patta issued in favour of the respondents ancestors was cancelled. In our view, the High Court should have accepted the finding of the first appellate Court and should not have reviewed the evidence over again. The Courts in effect held that the said presumption was rebutted by the oral and documentary evidence adduced by the respondents. We are not, therefore, justified in an appeal under Art. 136 of the Constitution to permit the appellant to canvass the correctness of the said concurrent findings of fact14. The last argument raises a question of limitation. If, as we have held, the suit is outside the scope of the Act, the question of limitation turns upon the provisions of the Indian Limitation Act. The suit was originally filed by the respondents for a declaration of their title to the suit property, but as they were dispossessed of the land on March 5, 1953, subsequent to the filing of the suit, the plaint was amended on July 24, 1954, praying for delivery of possession. To such a suit Art. 142 of the Limitation Act applies. The suit is, therefore, clearly not barred by limitation. | 0 | 2,415 | 567 | ### Instruction:
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fit. * * * * (2) Such order, if passed with reference to any entry in the register of rights, shall not be subject to appeal, but no such order shall debar any person from establishing any right to land in a civil Court, and the civil Court may direct that the entry relating to the land shall be altered in accordance with its decision. (3) Any such order, if passed with reference to a record other than the register of rights shall be subject to appeal but shall not be called in question in a civil Court, except in so far as any private right is infringed and then only by a suit instituted within one year from the date on which the contents of the record were announced under S. 88 Section 95. Any entry in the register of rights shall be presumed to be correct until the contrary is proved, and all other entries in the record of rights, subject to any change which may be ordered in appeal, revision or review only or by a civil Court under subs. (3) of S. 93, shall be conclusive evidence of the facts to which they relate. On the basis of the said provisions it is argued that under the said provisions the right of a person to hold land shall be entered in the register of rights under S. 89 (2) of the Act and a dispute in respect thereof shall be decided by the Tahsildar under S. 93 (1) thereof and that thereafter such an entry shall be rectified only by filing a suit in a civil Court in the manner prescribed in S. 93 (2) of the Act and that, therefore, the Tahsildar, subject to the statutory suit, has the exclusive jurisdiction to determine or decide the question in regard to the said matter within the meaning of S. 200 of the Act. This argument appears to be plausible, but a deeper scrutiny reveals a fallacy. The scope of an entry in regard to the right to hold a land under S. 89 (2) of the Act and the decision under S. 93 thereof is disclosed by S. 95. When such an entry is made in the register of rights and is not corrected in the manner prescribed in S. 93, under S. 95 it shall be presumed to be correct until the contrary is proved. The effect of such an entry, therefore, is only to make it a presumptive piece of evidence in a collateral proceeding: that is to say, in a suit based on title when such an entry is relied upon by one or other of the parties, the Court shall presume it to be correct unless the other party rebuts the presumption. Not only S 95 does not by necessary implication bar a suit but also assumes that in such a suit the correctness of such an entry could be questioned subject to the said presumption. 11. Learned counsel for the appellant, in support of his contention, relied upon Gokhul Sahu v. Jodu Nundun Roy, (1890) ILR 17 Cal 721 and Jatindra Nath v. Azizur Rahaman, AIR 1923 Cal 433 . Those decisions turned upon provisions which are not in pari materia with those with which we are now concerned. They do not, therefore, throw any light on the construction of the relevant provisions of the Act. 12. It is, therefore, clear that S. 200 (1) of the Act, read with the said group of sections, does not exclude the jurisdiction of a civil court to entertain a suit based on title. 13. Learned counsel for the appellant then contended that though the patta was granted in favour of the ancestors of the respondents in the year 1929 it was revoked later on, that under the new settlement of 1935 the appellants name was recorded in the register of rights, that in subsequent khasras upto 1953 his name continued to be shown as the owner of the suit land and that, therefore, the Court below should have held that the presumption raised by the register of rights in his favour was not rebutted and the plaintiff had failed to prove his title. But a perusal of the judgments of the Courts below shows that all the Courts, after taking into consideration the entire oral and documentary evidence, came to the conclusion that the respondents had established their title. Indeed, though the High court rightly pointed out that the finding of fact given by the lower appellate Court was conclusive, in view of the insistence of the Advocate in the High Court, it considered the entire documentary and oral evidence over-again and came to the same conclusion. It also admitted the notifications in respect of the settlement as fresh evidence and, after considering them, held that they did not disclose that the patta issued in favour of the respondents ancestors was cancelled. In our view, the High Court should have accepted the finding of the first appellate Court and should not have reviewed the evidence over again. The Courts in effect held that the said presumption was rebutted by the oral and documentary evidence adduced by the respondents. We are not, therefore, justified in an appeal under Art. 136 of the Constitution to permit the appellant to canvass the correctness of the said concurrent findings of fact. 14. The last argument raises a question of limitation. If, as we have held, the suit is outside the scope of the Act, the question of limitation turns upon the provisions of the Indian Limitation Act. The suit was originally filed by the respondents for a declaration of their title to the suit property, but as they were dispossessed of the land on March 5, 1953, subsequent to the filing of the suit, the plaint was amended on July 24, 1954, praying for delivery of possession. To such a suit Art. 142 of the Limitation Act applies. The suit is, therefore, clearly not barred by limitation.
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This argument appears to be plausible, but a deeper scrutiny reveals a fallacy. The scope of an entry in regard to the right to hold a land under S. 89 (2) of the Act and the decision under S. 93 thereof is disclosed by S. 95. When such an entry is made in the register of rights and is not corrected in the manner prescribed in S. 93, under S. 95 it shall be presumed to be correct until the contrary is proved. The effect of such an entry, therefore, is only to make it a presumptive piece of evidence in a collateral proceeding: that is to say, in a suit based on title when such an entry is relied upon by one or other of the parties, the Court shall presume it to be correct unless the other party rebuts the presumption. Not only S 95 does not by necessary implication bar a suit but also assumes that in such a suit the correctness of such an entry could be questioned subject to the said presumption12. It is, therefore, clear that S. 200 (1) of the Act, read with the said group of sections, does not exclude the jurisdiction of a civil court to entertain a suit based on titleBut a perusal of the judgments of the Courts below shows that all the Courts, after taking into consideration the entire oral and documentary evidence, came to the conclusion that the respondents had established their title. Indeed, though the High court rightly pointed out that the finding of fact given by the lower appellate Court was conclusive, in view of the insistence of the Advocate in the High Court, it considered the entire documentary and oral evidence over-again and came to the same conclusion. It also admitted the notifications in respect of the settlement as fresh evidence and, after considering them, held that they did not disclose that the patta issued in favour of the respondents ancestors was cancelled. In our view, the High Court should have accepted the finding of the first appellate Court and should not have reviewed the evidence over again. The Courts in effect held that the said presumption was rebutted by the oral and documentary evidence adduced by the respondents. We are not, therefore, justified in an appeal under Art. 136 of the Constitution to permit the appellant to canvass the correctness of the said concurrent findings of fact14. The last argument raises a question of limitation. If, as we have held, the suit is outside the scope of the Act, the question of limitation turns upon the provisions of the Indian Limitation Act. The suit was originally filed by the respondents for a declaration of their title to the suit property, but as they were dispossessed of the land on March 5, 1953, subsequent to the filing of the suit, the plaint was amended on July 24, 1954, praying for delivery of possession. To such a suit Art. 142 of the Limitation Act applies. The suit is, therefore, clearly not barred by limitation.
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Biswabani Private Limited Vs. Santosh Kumar Dutta and Others | the status of the appellant as tenant did not undergo any change and it continued to be the tenant of the premises and the statutory tenancy would come to an end if it surrenders possession or is evicted by due process of law.If the appellant thus continued to be a tenant it could not be forcibly evicted. If the premises enjoyed the protection of the West Bengal Premises Tenancy Act, 1956, which was in force on 29th February 1960 when according to respondents 1 and 2 the period reserved under the void lease expired, respondents 1 and 2 cannot, ignoring the provisions of the relevant Rent Restriction law and merely treating the appellant as licensee or trespasser, ignoring its status of irremovability, take over forcible possession. In such circumstances the appellant as tenant would be entitled to protect its possession unless evicted in due course of law and in order to protect its possession it can legitimately sue, there being no bar in law, for a declaration of its status as tenant and for an injunction either prohibitory or mandatory, as the case may be. The High Court really missed the core problem and with respect misled itself into invoking the provisions of s. 53A which the learned counsel appearing for the present appellant declined to invoke in its favour and came to an unsustainable conclus ion that under the consent decree the parties agreed that the old tenancy would be wiped out and a new tenancy would be created for a period of 5 years expiring in February 1960. A still born attempt not clothed with legal formality cannot destroy the existing status. The second lease never came into existence for want of registration and more particularly the appellant was not put in possession under the purported second lease which turns out to be void. The paradoxical approach manifested in the approach is that if a valid lease had come into existence on the expiry of it the appellant tenant would have continued in possession under the protection of the relevant Rent Restriction Act. However, if such an attempt at creating a fresh lease was ineffective or infructuous, how can such an inchoate exercise destroy the existing rights which the High Court held to have been destroyed ignoring the very existence of West Bengal Premises Tenancy Act, 1956 ? The High Court was further in error in holding that if on the expiry of the agreed period of lease there was a covenant for not getting any renewal of the lease the tenant would be a trespasser, wholly overlooking the legal position as affirmatively established that on the expiry of the contractual tenancy the tenant continues as a statutory tenant except where he surrenders possession or is evicted under the enabling provisions of the relevant Rent Restriction Act.It thus clearly transpires that the appellant was a tenant and continued to be a tenant and was entitled to protect its possession by appropriate proceeding unless evicted in due course of law.11. Before we conclude it is necessary to dispose of a contention in the form of a preliminary objection raised by Mr. Sen for the respondents that the certificate granted by the High Court being invalid, the appeal must fail on that account alone. Certificate granted by the High Court leaves much to be desired. It is merely stated that it is a case fit for appeal to the Supreme Court. It may be pointed out that the appellant had prayed for a certificate under Article 133(1)(a), (b) and (c) as it stood at the relevant time in 1969. I n the application for the certificate it was stated that the subject-matter of the suit and appeal to the Supreme Court will exceed Rs. 20, 000/- and that judgment is one of affirmance. It was also stated that the appeal involves a question of general public importance and, therefore, a certificate may be granted under Article 133(1)(a), (b) and (c). In the affidavit in opposition on behalf of respondents 1 and 2 it was stated that the value of the subject-matter of dispute was less than Rs. 20, 000/- and the appeal does not involve any question of law of general public importance which had to be determined by the Supreme Court. With these two affidavits before it, the High Court granted certificate that it is a fit case fo r appeal to the Supreme Court. A certificate which the High Court grants must be supported by adequate reasons. It is obligatory upon the High Court to set out the question of public or private importance which in their opinion falls to be determined in the proposed appeal (see Sohanlal Naraindas v. Laxmidas Raghunath Gadit, (1) and Railway Board, Govt. of India v. M/s. Observer Publications (P) Ltd.(2)In both these cases the appeals were disposed of on merits and the preliminary objection was merely noticed. However, in Nund &Samont Co. Pvt. Ltd. v. Commissioner of Income-tax, Bihar &Orissa, (1) this Court held that a certificate of fitness for appeal to the Supreme Court issued by the High Court under s. 66 A of the Income-tax Act, 1922, will be defective if it does not set out the substantial question of law which, in the view of the High Court, falls to be determined by the Supreme Court, and following the decision in India Machinery Store s P. Ltd. v. Commissioner of Income-Tax, Bihar and Orissa, (2) the appeal was liable to be dismissed in view of the defective certificate. However, in both the cases after observing that the certificate was defective the appeals were disposed of on merits. In this case a very substantial question of law of general public importance is raised and it would be a travesty of justice if we now dismiss the appeal on the sole ground that the certificate is defective. It would have been open to us to grant special leave on the question raised before us. Therefore, the preliminary objection must be overruled.12. | 1[ds]We must accordingly steer clear of this position that neither the appellant relies on s. 53A to protect its possession nor would it be of any use or assistance because it can be a sheath and not a sword as the appellant has come to the Court for a declaration of its tenancy rights, seeking to protect its possession not under the doctrine of part performance as incorporated in s. 53A but with specific allegation that the appellant is a tenant and it be so declared, and for an injunction restraining respondents 1 and 2 landlords from interfering or disturbing the appellants possession of the premises asthis case it is unquestionably established that at the commencement of the lease which turns out to be void, i.e. on 1st March 1955 appellant was a tenant of the premises and that on its application standard rent in respect of the demised premises was determined and the same was accepted as the rent to be paid under the second lease. Payment has in fact been made and it would be twisting the language to hold that the payment was not made as rent but under the terms of the secondit would not be correct to hold that a tenant who was in possession of the demised premises as tenant and who negotiated a fresh agreement of lease with the landlord for a period exceeding one year which, in order to be legal, must be by a registered instrument and which turns out to be void for want of registration, would alter hi s position from one as tenant at the commencement of such void lease and would render him a licensee continuing in possession under the terms of a lease being void and, therefore, ineffective and that he ceases to be a tenant and could be forcibly removed at the end of the period which was reserved under the void lease. Such an incomplete and ineffective attempt at creating a fresh lease would have no impact on a tenant who was in possession as tenant at the commencement of such a void lease and he would continue to be the tenant because s. 53A would not be attracted as he is not put in possession in part performance of an agreement of lease not registered and that it would be unwise to hold that the payment of the standard rent fixed by the Rent Controller having jurisdiction could be by any process of construction treated as payment under such an agreement of lease. Therefore, it would appear that the appellant company was a tenant during the period 1948-53 and on the expiry of the contractual tenancy on 31st August 1953 it became a statutory tenant. A person remaining in occupation of premises let to him after the determination of or expiry of the period of the tenancy is commonly, though in law not accurately, called a statutory tenant. In other words, he acquires the status ofstatutory tenancy would, therefore, come to an end on either the surrender of premises by such a tenant or if a decree of eviction is passed against him (See Hiralal Vallabhram v. Kastorbhai Lalbhai &Ors.) (2) As the period reserved under the first lease expired an 31st August 1953 and thereafter the tenant continued in possession, it became a statutory tenant under the West Bengal Premises Rent Control (Temporary Provisions) Act, 1950. If thereafter an ineffective attempt was made to enter into a fresh contract of tenancy the status of the appellant as tenant did not undergo any change and it continued to be the tenant of the premises and the statutory tenancy would come to an end if it surrenders possession or is evicted by due process of law.If the appellant thus continued to be a tenant it could not be forcibly evicted. If the premises enjoyed the protection ofthe West Bengal Premises Tenancy Act, 1956, which was in force on 29th February 1960 when according to respondents 1 and 2 the period reserved under the void lease expired, respondents 1 and 2 cannot, ignoring the provisions of the relevant Rent Restriction law and merely treating the appellant as licensee or trespasser, ignoring its status of irremovability, take over forcible possession. In such circumstances the appellant as tenant would be entitled to protect its possession unless evicted in due course of law and in order to protect its possession it can legitimately sue, there being no bar in law, for a declaration of its status as tenant and for an injunction either prohibitory or mandatory, as the case may be. The High Court really missed the core problem and with respect misled itself into invoking the provisions of s. 53A which the learned counsel appearing for the present appellant declined to invoke in its favour and came to an unsustainable conclus ion that under the consent decree the parties agreed that the old tenancy would be wiped out and a new tenancy would be created for a period of 5 years expiring in February 1960. A still born attempt not clothed with legal formality cannot destroy the existing status. The second lease never came into existence for want of registration and more particularly the appellant was not put in possession under the purported second lease which turns out to beHigh Court was further in error in holding that if on the expiry of the agreed period of lease there was a covenant for not getting any renewal of the lease the tenant would be a trespasser, wholly overlooking the legal position as affirmatively established that on the expiry of the contractual tenancy the tenant continues as a statutory tenant except where he surrenders possession or is evicted under the enabling provisions of the relevant Rent Restriction Act.It thus clearly transpires that the appellant was a tenant and continued to be a tenant and was entitled to protect its possession by appropriate proceeding unless evicted in due course ofgranted by the High Court leaves much to be desired. It is merely stated that it is a case fit for appeal to the Supreme Court. It may be pointed out that the appellant had prayed for a certificate under Article 133(1)(a), (b) and (c) as it stood at the relevant time in 1969. I n the application for the certificate it was stated that the subject-matter of the suit and appeal to the Supreme Court will exceed Rs. 20, 000/- and that judgment is one of affirmance. It was also stated that the appeal involves a question of general public importance and, therefore, a certificate may be granted under Article 133(1)(a), (b) and (c). In the affidavit in opposition on behalf of respondents 1 and 2 it was stated that the value of the subject-matter of dispute was less than Rs. 20, 000/- and the appeal does not involve any question of law of general public importance which had to be determined by the Supreme Court. With these two affidavits before it, the High Court granted certificate that it is a fit case fo r appeal to the Supreme Court. A certificate which the High Court grants must be supported by adequate reasons. It is obligatory upon the High Court to set out the question of public or private importance which in their opinion falls to be determined in the proposedthis case a very substantial question of law of general public importance is raised and it would be a travesty of justice if we now dismiss the appeal on the sole ground that the certificate is defective. It would have been open to us to grant special leave on the question raised before us. Therefore, the preliminary objection must be overruled. | 1 | 6,473 | 1,375 | ### 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 status of the appellant as tenant did not undergo any change and it continued to be the tenant of the premises and the statutory tenancy would come to an end if it surrenders possession or is evicted by due process of law.If the appellant thus continued to be a tenant it could not be forcibly evicted. If the premises enjoyed the protection of the West Bengal Premises Tenancy Act, 1956, which was in force on 29th February 1960 when according to respondents 1 and 2 the period reserved under the void lease expired, respondents 1 and 2 cannot, ignoring the provisions of the relevant Rent Restriction law and merely treating the appellant as licensee or trespasser, ignoring its status of irremovability, take over forcible possession. In such circumstances the appellant as tenant would be entitled to protect its possession unless evicted in due course of law and in order to protect its possession it can legitimately sue, there being no bar in law, for a declaration of its status as tenant and for an injunction either prohibitory or mandatory, as the case may be. The High Court really missed the core problem and with respect misled itself into invoking the provisions of s. 53A which the learned counsel appearing for the present appellant declined to invoke in its favour and came to an unsustainable conclus ion that under the consent decree the parties agreed that the old tenancy would be wiped out and a new tenancy would be created for a period of 5 years expiring in February 1960. A still born attempt not clothed with legal formality cannot destroy the existing status. The second lease never came into existence for want of registration and more particularly the appellant was not put in possession under the purported second lease which turns out to be void. The paradoxical approach manifested in the approach is that if a valid lease had come into existence on the expiry of it the appellant tenant would have continued in possession under the protection of the relevant Rent Restriction Act. However, if such an attempt at creating a fresh lease was ineffective or infructuous, how can such an inchoate exercise destroy the existing rights which the High Court held to have been destroyed ignoring the very existence of West Bengal Premises Tenancy Act, 1956 ? The High Court was further in error in holding that if on the expiry of the agreed period of lease there was a covenant for not getting any renewal of the lease the tenant would be a trespasser, wholly overlooking the legal position as affirmatively established that on the expiry of the contractual tenancy the tenant continues as a statutory tenant except where he surrenders possession or is evicted under the enabling provisions of the relevant Rent Restriction Act.It thus clearly transpires that the appellant was a tenant and continued to be a tenant and was entitled to protect its possession by appropriate proceeding unless evicted in due course of law.11. Before we conclude it is necessary to dispose of a contention in the form of a preliminary objection raised by Mr. Sen for the respondents that the certificate granted by the High Court being invalid, the appeal must fail on that account alone. Certificate granted by the High Court leaves much to be desired. It is merely stated that it is a case fit for appeal to the Supreme Court. It may be pointed out that the appellant had prayed for a certificate under Article 133(1)(a), (b) and (c) as it stood at the relevant time in 1969. I n the application for the certificate it was stated that the subject-matter of the suit and appeal to the Supreme Court will exceed Rs. 20, 000/- and that judgment is one of affirmance. It was also stated that the appeal involves a question of general public importance and, therefore, a certificate may be granted under Article 133(1)(a), (b) and (c). In the affidavit in opposition on behalf of respondents 1 and 2 it was stated that the value of the subject-matter of dispute was less than Rs. 20, 000/- and the appeal does not involve any question of law of general public importance which had to be determined by the Supreme Court. With these two affidavits before it, the High Court granted certificate that it is a fit case fo r appeal to the Supreme Court. A certificate which the High Court grants must be supported by adequate reasons. It is obligatory upon the High Court to set out the question of public or private importance which in their opinion falls to be determined in the proposed appeal (see Sohanlal Naraindas v. Laxmidas Raghunath Gadit, (1) and Railway Board, Govt. of India v. M/s. Observer Publications (P) Ltd.(2)In both these cases the appeals were disposed of on merits and the preliminary objection was merely noticed. However, in Nund &Samont Co. Pvt. Ltd. v. Commissioner of Income-tax, Bihar &Orissa, (1) this Court held that a certificate of fitness for appeal to the Supreme Court issued by the High Court under s. 66 A of the Income-tax Act, 1922, will be defective if it does not set out the substantial question of law which, in the view of the High Court, falls to be determined by the Supreme Court, and following the decision in India Machinery Store s P. Ltd. v. Commissioner of Income-Tax, Bihar and Orissa, (2) the appeal was liable to be dismissed in view of the defective certificate. However, in both the cases after observing that the certificate was defective the appeals were disposed of on merits. In this case a very substantial question of law of general public importance is raised and it would be a travesty of justice if we now dismiss the appeal on the sole ground that the certificate is defective. It would have been open to us to grant special leave on the question raised before us. Therefore, the preliminary objection must be overruled.12.
### Response:
1
### Explanation:
the terms of a lease being void and, therefore, ineffective and that he ceases to be a tenant and could be forcibly removed at the end of the period which was reserved under the void lease. Such an incomplete and ineffective attempt at creating a fresh lease would have no impact on a tenant who was in possession as tenant at the commencement of such a void lease and he would continue to be the tenant because s. 53A would not be attracted as he is not put in possession in part performance of an agreement of lease not registered and that it would be unwise to hold that the payment of the standard rent fixed by the Rent Controller having jurisdiction could be by any process of construction treated as payment under such an agreement of lease. Therefore, it would appear that the appellant company was a tenant during the period 1948-53 and on the expiry of the contractual tenancy on 31st August 1953 it became a statutory tenant. A person remaining in occupation of premises let to him after the determination of or expiry of the period of the tenancy is commonly, though in law not accurately, called a statutory tenant. In other words, he acquires the status ofstatutory tenancy would, therefore, come to an end on either the surrender of premises by such a tenant or if a decree of eviction is passed against him (See Hiralal Vallabhram v. Kastorbhai Lalbhai &Ors.) (2) As the period reserved under the first lease expired an 31st August 1953 and thereafter the tenant continued in possession, it became a statutory tenant under the West Bengal Premises Rent Control (Temporary Provisions) Act, 1950. If thereafter an ineffective attempt was made to enter into a fresh contract of tenancy the status of the appellant as tenant did not undergo any change and it continued to be the tenant of the premises and the statutory tenancy would come to an end if it surrenders possession or is evicted by due process of law.If the appellant thus continued to be a tenant it could not be forcibly evicted. If the premises enjoyed the protection ofthe West Bengal Premises Tenancy Act, 1956, which was in force on 29th February 1960 when according to respondents 1 and 2 the period reserved under the void lease expired, respondents 1 and 2 cannot, ignoring the provisions of the relevant Rent Restriction law and merely treating the appellant as licensee or trespasser, ignoring its status of irremovability, take over forcible possession. In such circumstances the appellant as tenant would be entitled to protect its possession unless evicted in due course of law and in order to protect its possession it can legitimately sue, there being no bar in law, for a declaration of its status as tenant and for an injunction either prohibitory or mandatory, as the case may be. The High Court really missed the core problem and with respect misled itself into invoking the provisions of s. 53A which the learned counsel appearing for the present appellant declined to invoke in its favour and came to an unsustainable conclus ion that under the consent decree the parties agreed that the old tenancy would be wiped out and a new tenancy would be created for a period of 5 years expiring in February 1960. A still born attempt not clothed with legal formality cannot destroy the existing status. The second lease never came into existence for want of registration and more particularly the appellant was not put in possession under the purported second lease which turns out to beHigh Court was further in error in holding that if on the expiry of the agreed period of lease there was a covenant for not getting any renewal of the lease the tenant would be a trespasser, wholly overlooking the legal position as affirmatively established that on the expiry of the contractual tenancy the tenant continues as a statutory tenant except where he surrenders possession or is evicted under the enabling provisions of the relevant Rent Restriction Act.It thus clearly transpires that the appellant was a tenant and continued to be a tenant and was entitled to protect its possession by appropriate proceeding unless evicted in due course ofgranted by the High Court leaves much to be desired. It is merely stated that it is a case fit for appeal to the Supreme Court. It may be pointed out that the appellant had prayed for a certificate under Article 133(1)(a), (b) and (c) as it stood at the relevant time in 1969. I n the application for the certificate it was stated that the subject-matter of the suit and appeal to the Supreme Court will exceed Rs. 20, 000/- and that judgment is one of affirmance. It was also stated that the appeal involves a question of general public importance and, therefore, a certificate may be granted under Article 133(1)(a), (b) and (c). In the affidavit in opposition on behalf of respondents 1 and 2 it was stated that the value of the subject-matter of dispute was less than Rs. 20, 000/- and the appeal does not involve any question of law of general public importance which had to be determined by the Supreme Court. With these two affidavits before it, the High Court granted certificate that it is a fit case fo r appeal to the Supreme Court. A certificate which the High Court grants must be supported by adequate reasons. It is obligatory upon the High Court to set out the question of public or private importance which in their opinion falls to be determined in the proposedthis case a very substantial question of law of general public importance is raised and it would be a travesty of justice if we now dismiss the appeal on the sole ground that the certificate is defective. It would have been open to us to grant special leave on the question raised before us. Therefore, the preliminary objection must be overruled.
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Rukshana Eisa Vs. Union of India & Others | P.C.The petitioner submitted a letter of resignation on 20-3-2006 which was to come into effect on 1-4-2006. The petitioner was relieved w.e.f. 1-4-2006. The petitioners dues were settled and a cheque in the sum of Rs.7,05,092/- were paid in full and final settlement of all her claims.2. It appears, thereafter the company introduced a scheme whereby employees, if they resigned from the company were given a package of severance. After this was paid to the other employees, petitioner by a letter dated 23-6-2006 informed the respondent No.3 in the following terms:"Had I known that the Base was about to shut down just two months after my resignation, I would have differed my decision. You can imagine my feeling of betrayel with a company that had recognized my worth and appreciated my performance, was denying/depriving me of a severance package that was being offered to my colleagues."In this letter, there was no averment that the earlier letter was taken under duress, coercion or threat nor after letter of resignation and acceptance and receiving benefits did the petitioner address any letter before 23-6-2006 that the resignation was under coercion, threat, fraud or like. It is only some time on 18-8-2006 when the petitioner for the first time contended that she was threatened and coercioned in submitting resignation letter dated 20-4-2006 which was far from voluntary.3. The matter was taken up into conciliation and the conciliation submitted failure report. The Appropriate Government by a communication dated 13-2-2007 rejected the reference. The petitioner has come against said order.4. Considering what has been set out above, it is clear that until August 20,2006, the petitioner did not make any complaint that the resignation was under coercion, threat, fraud or like. The petitioner, after her resignation voluntarily accepted the monies offered to her. After that also there was no protest. The first communication was of 23-6-2006 wherein the petitioner informed respondent No.3 that she could have differed letter of resignation had she known of the package that will be given to the other employees consequent to the closure of the base.5. In our opinion, considering these facts it is clear that the decision of the appropriate Government not to refer the matter for adjudication by way of industrial reference cannot be said to be contrary to law and contrary to Section 10 and 12 of the Industrial Disputes Act. | 0[ds]5. In our opinion, considering these facts it is clear that the decision of the appropriate Government not to refer the matter for adjudication by way of industrial reference cannot be said to be contrary to law and contrary to Section 10 and 12 of the Industrial Disputes Act. | 0 | 431 | 57 | ### Instruction:
Judge the probable resolution of the case (approval (1) or disapproval (0)), and elaborate on this forecast by extracting and interpreting significant sentences from the proceeding.
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P.C.The petitioner submitted a letter of resignation on 20-3-2006 which was to come into effect on 1-4-2006. The petitioner was relieved w.e.f. 1-4-2006. The petitioners dues were settled and a cheque in the sum of Rs.7,05,092/- were paid in full and final settlement of all her claims.2. It appears, thereafter the company introduced a scheme whereby employees, if they resigned from the company were given a package of severance. After this was paid to the other employees, petitioner by a letter dated 23-6-2006 informed the respondent No.3 in the following terms:"Had I known that the Base was about to shut down just two months after my resignation, I would have differed my decision. You can imagine my feeling of betrayel with a company that had recognized my worth and appreciated my performance, was denying/depriving me of a severance package that was being offered to my colleagues."In this letter, there was no averment that the earlier letter was taken under duress, coercion or threat nor after letter of resignation and acceptance and receiving benefits did the petitioner address any letter before 23-6-2006 that the resignation was under coercion, threat, fraud or like. It is only some time on 18-8-2006 when the petitioner for the first time contended that she was threatened and coercioned in submitting resignation letter dated 20-4-2006 which was far from voluntary.3. The matter was taken up into conciliation and the conciliation submitted failure report. The Appropriate Government by a communication dated 13-2-2007 rejected the reference. The petitioner has come against said order.4. Considering what has been set out above, it is clear that until August 20,2006, the petitioner did not make any complaint that the resignation was under coercion, threat, fraud or like. The petitioner, after her resignation voluntarily accepted the monies offered to her. After that also there was no protest. The first communication was of 23-6-2006 wherein the petitioner informed respondent No.3 that she could have differed letter of resignation had she known of the package that will be given to the other employees consequent to the closure of the base.5. In our opinion, considering these facts it is clear that the decision of the appropriate Government not to refer the matter for adjudication by way of industrial reference cannot be said to be contrary to law and contrary to Section 10 and 12 of the Industrial Disputes Act.
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0
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5. In our opinion, considering these facts it is clear that the decision of the appropriate Government not to refer the matter for adjudication by way of industrial reference cannot be said to be contrary to law and contrary to Section 10 and 12 of the Industrial Disputes Act.
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Pankaj @ Pawan Sureshrao Solanke (Deshmukh) Vs. State of Maharashtra | vicinity as heap of stems of Jawar and police had noticed some blood stains at the distance of 25 ft from that spot. It can be said that during the preparation of the spot panchanama, police must have searched the vicinity of the spot to trace out other articles as the dead body was in naked condition. In view of these circumstances, the case of prosecution that only after arrest of the accused, the clothes came to be recovered, does not appear to be probable in nature.25. Pitroda (P.W.2) a panch witness on the discovery of the articles has given evidence that on 13/2/04, accused gave statement to police and showed willingness to produce clothes, shoes, wrist watch and belt of the deceased. At Exh.25 there is a memorandum of the statement of the accused. The panch witness has deposed that he also acted as a photographer and he took photographs of the incident of discovery. He has deposed that after recording statement, they went to Khedi village and from there, the accused produced clothes and shoes which were found to be kept beneath a stone. The panch witness has given evidence that the accused also showed a place where belt of the wrist watch was lying and the place where the dead body was concealed. It is already observed that all these places are situated near the place where the dead body was found. The panchanama also shows the same thing. Exh. 33 shows that 3 shirts were recovered. This circumstance is not consistent with the case of the prosecution that the accused had removed the clothes from the person of the deceased and these clothes were concealed. There is no explanation from Mangala on the circumstance.26. The cross examination of the panch witness shows that he is a stock witness of police. There is one more circumstance, like the absence of wrist watch with the belt. The wrist watch of the deceased is described by Mangala but the wrist watch is not traced. Only belt of the wrist watch was sent to C.A. and blood was found on this belt. This belt was lying in open condition as per the evidence of spot panchanama and it was near the place where dead body was found. The clothes were not sent to the C.A. and no reason is given for the same. Blood of group "B" was detected on the belt of wrist watch and the deceased was having similar blood group as per the case of the prosecution. In view of these circumstances, and discrepancies, it is not possible to rely on the evidence of so-called statement given by accused to police and so-called discovery of aforesaid articles made on the basis of the statement of accused.27. The evidence of investigating officer and the police papers which include remand reports show that 3 more persons were arrested as suspects by police. This circumstance shows that either police believed in the story given by Mangala that some persons had taken away the deceased with them and they had committed the murder of husband of Mangala or police did not believe Mangala and they were in search of real culprits. This circumstance also creates doubt about the story given by Mangala.28. It is already observed that it was necessary for prosecution to examine the landlord from Shegaon and the landlord from Jalgaon. In absence of the evidence of these 2 persons, the evidence of Mangala has become very weak and it is highly doubtful in nature. From such evidence, inference cannot be drawn that only the accused had the opportunity to finish deceased. It is already observed that there is no convincing evidence on motive. When case rests on circumstantial evidence, motive becomes one link in the chain of circumstances. Such link is missing in the present case.29. The defence has admitted post mortem report. The cause of death is recorded as "Coma due to head injury". The dead body was found on 14/12/03 but p.m. was conducted on 15/12/03 between 11.30 a.m. and 1.30 p.m. There is a mention about rigarmortis and decomposition. The doctor who conducted post mortem examination has however, not given approximate time of the death. In such a case, it is always necessary to fix approximate time of death and so it is again one more lacuna in the case of the prosecution. The medical evidence and the C.A. report in respect of viscera shows that substantial quantity of alcohol was detected in the viscera. No investigation was made by police to find out as to where and when liquor was consumed by deceased. This is again a lacuna in the case of prosecution and it creates more doubt about the case of the prosecution.30. Even if the story given by Mangala is believed, the so-called disclosure of accused does not lead to only one inference of guilt. If the conduct or action of accused is open to two constructions like the accused saw the murder committed by others or he is guilty of murder, the Court cannot assume that the action of accused was criminal. In any case, from the aforesaid circumstances, the Court can come to only one conclusion that the testimony of Mangala (P.W.1) is tainted to the core and it needs to be discarded. In view of the possibility that Ishwar Patil had seen the deceased alone at Jalgaon in his house on the night between 12th and 13th December 2003, the circumstance that the deceased was seen alive in the company of accused at 3.45 p.m. on 12th December, 2003, ceased to be a circumstance of incriminating character. Due to all these circumstances, and lacunae, this Court has no alternative than to hold that the accused is entitled to benefit of doubt. The aforesaid circumstances are not considered in proper perspective by the trial Court and that is why the trial Court has come to other conclusion. The judgment and order of the trial Court needs to be set aside. | 1[ds]21. In cross examination, Mangala has admitted that her husband never used to tell her where he was going. According to her, this was true in respect of the last occasion also. She has admitted that she cannot say as to whether the accused had remained in the company of deceased after the bus stop of Shegaon. This shows that she is not certain as to whether the accused was in the company of deceased throughout. She has admitted in the cross examination that her husband always used to roam from one station to other. In the chief examination itself, she had admitted that on 13/12/03, after visiting Khed, she had contacted Ishwar Patil on phone and Ishwar Patil had informed that the deceased alone had come to his house on the previous night. In view of these circumstances, it was necessary for prosecution to examine Ishwar Patil. No explanation is given in respect of this lacuna. If on the night between 12th and 13th, deceased was seen alone in the house of Ishwar Patil, this circumstance breaks the chain of circumstances. It was necessary for prosecution to establish that after 3.45 p.m. on 12/12/03, nobody had seen deceased alive. It was also open for prosecution to show that even after 3.45 p.m. deceased was seen in the company of accused. This evidence of Mangala and aforesaid lacuna have made case of prosecution doubtful. It is needless to say that the circumstance of last seen must be shown to be in proximity to the time and place. The aforesaid evidence and the medical evidence do not satisfy this test.22. Mangala has deposed that right from 10.30 a.m. of 13/12/03, till the night of 13/12/03, she was in the company of accused and she went to other stations with accused. As per the evidence of Mangala, Ishwar Patil had opportunity to see accused in the company of Mangala on that day. In view of this evidence also it was necessary for prosecution to examine Ishwar Patil. Such evidence could have given corroboration to the version of Mangala.23. The defence has admitted report which was given by Pralhad the owner of field from Khedi. It is not disputed that the dead body was found after 10 a.m. on 14th and it was in naked condition. In view of this circumstance, it was easy for Mangala and police to create story given by Mangala in the Court. The conduct of Mangala of not attempting to see the dead body of her husband, not approaching police after learning about the murder, going with the accused to Jalgaon and to other places and shifting household articles from Shegaon to Amravati on 15/12/03, creates doubt about her story. The conduct was not at all natural and due to aforesaid circumstances, she does not appear to be a trustworthy witness. In such serious case, the evidence of a witness like Mangala cannot be used to base conviction.24. Remaining part of prosecution case also does not appear to be probable in nature. If the accused had disclosed to Mangala that on the spot of the offence, he had removed the clothes and other articles of the deceased and he had concealed the dead body in heap of stems of Jawar, in the ordinary course, Mangala must have asked the accused about these articles. It can be said that Mangala could have given information to police about these articles prior to the arrest of the accused. Khairnar (P.W.4) has deposed that Nandura Police had seized weapon Tommy from the accused when Nandura police station was making investigation of C.R.No.117/04. If during investigation of other crime, some information was given regarding the weapon of the present case, in ordinary course, other information would have been collected by police. Prosecution has not given evidence on the discovery of Tommy at the instance of accused in the present case by saying that no blood was detected on that weapon. Further, if the weapon was recovered from different place, there was no reason for culprit to keep the clothes near the place of the offence. The evidence on the spot panchanama shows that police had searched the place in the vicinity as heap of stems of Jawar and police had noticed some blood stains at the distance of 25 ft from that spot. It can be said that during the preparation of the spot panchanama, police must have searched the vicinity of the spot to trace out other articles as the dead body was in naked condition. In view of these circumstances, the case of prosecution that only after arrest of the accused, the clothes came to be recovered, does not appear to be probable in nature.25. Pitroda (P.W.2) a panch witness on the discovery of the articles has given evidence that on 13/2/04, accused gave statement to police and showed willingness to produce clothes, shoes, wrist watch and belt of the deceased. At Exh.25 there is a memorandum of the statement of the accused. The panch witness has deposed that he also acted as a photographer and he took photographs of the incident of discovery. He has deposed that after recording statement, they went to Khedi village and from there, the accused produced clothes and shoes which were found to be kept beneath a stone. The panch witness has given evidence that the accused also showed a place where belt of the wrist watch was lying and the place where the dead body was concealed. It is already observed that all these places are situated near the place where the dead body was found. The panchanama also shows the same thing. Exh. 33 shows that 3 shirts were recovered. This circumstance is not consistent with the case of the prosecution that the accused had removed the clothes from the person of the deceased and these clothes were concealed. There is no explanation from Mangala on the circumstance.26. The cross examination of the panch witness shows that he is a stock witness of police. There is one more circumstance, like the absence of wrist watch with the belt. The wrist watch of the deceased is described by Mangala but the wrist watch is not traced. Only belt of the wrist watch was sent to C.A. and blood was found on this belt. This belt was lying in open condition as per the evidence of spot panchanama and it was near the place where dead body was found. The clothes were not sent to the C.A. and no reason is given for the same. Blood of group "B" was detected on the belt of wrist watch and the deceased was having similar blood group as per the case of the prosecution. In view of these circumstances, and discrepancies, it is not possible to rely on the evidence ofstatement given by accused to police anddiscovery of aforesaid articles made on the basis of the statement of accused.The evidence of investigating officer and the police papers which include remand reports show that 3 more persons were arrested as suspects by police. This circumstance shows that either police believed in the story given by Mangala that some persons had taken away the deceased with them and they had committed the murder of husband of Mangala or police did not believe Mangala and they were in search of real culprits. This circumstance also creates doubt about the story given by Mangala.28. It is already observed that it was necessary for prosecution to examine the landlord from Shegaon and the landlord from Jalgaon. In absence of the evidence of these 2 persons, the evidence of Mangala has become very weak and it is highly doubtful in nature. From such evidence, inference cannot be drawn that only the accused had the opportunity to finish deceased. It is already observed that there is no convincing evidence on motive. When case rests on circumstantial evidence, motive becomes one link in the chain of circumstances. Such link is missing in the present case.29. The defence has admitted post mortem report. The cause of death is recorded as "Coma due to head injury". The dead body was found on 14/12/03 but p.m. was conducted on 15/12/03 between 11.30 a.m. and 1.30 p.m. There is a mention about rigarmortis and decomposition. The doctor who conducted post mortem examination has however, not given approximate time of the death. In such a case, it is always necessary to fix approximate time of death and so it is again one more lacuna in the case of the prosecution. The medical evidence and the C.A. report in respect of viscera shows that substantial quantity of alcohol was detected in the viscera. No investigation was made by police to find out as to where and when liquor was consumed by deceased. This is again a lacuna in the case of prosecution and it creates more doubt about the case of the prosecution.30. Even if the story given by Mangala is believed, thedisclosure of accused does not lead to only one inference of guilt. If the conduct or action of accused is open to two constructions like the accused saw the murder committed by others or he is guilty of murder, the Court cannot assume that the action of accused was criminal. In any case, from the aforesaid circumstances, the Court can come to only one conclusion that the testimony of Mangala (P.W.1) is tainted to the core and it needs to be discarded. In view of the possibility that Ishwar Patil had seen the deceased alone at Jalgaon in his house on the night between 12th and 13th December 2003, the circumstance that the deceased was seen alive in the company of accused at 3.45 p.m. on 12th December, 2003, ceased to be a circumstance of incriminating character. Due to all these circumstances, and lacunae, this Court has no alternative than to hold that the accused is entitled to benefit of doubt. The aforesaid circumstances are not considered in proper perspective by the trial Court and that is why the trial Court has come to other conclusion. The judgment and order of the trial Court needs to be set aside. | 1 | 4,888 | 1,841 | ### Instruction:
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vicinity as heap of stems of Jawar and police had noticed some blood stains at the distance of 25 ft from that spot. It can be said that during the preparation of the spot panchanama, police must have searched the vicinity of the spot to trace out other articles as the dead body was in naked condition. In view of these circumstances, the case of prosecution that only after arrest of the accused, the clothes came to be recovered, does not appear to be probable in nature.25. Pitroda (P.W.2) a panch witness on the discovery of the articles has given evidence that on 13/2/04, accused gave statement to police and showed willingness to produce clothes, shoes, wrist watch and belt of the deceased. At Exh.25 there is a memorandum of the statement of the accused. The panch witness has deposed that he also acted as a photographer and he took photographs of the incident of discovery. He has deposed that after recording statement, they went to Khedi village and from there, the accused produced clothes and shoes which were found to be kept beneath a stone. The panch witness has given evidence that the accused also showed a place where belt of the wrist watch was lying and the place where the dead body was concealed. It is already observed that all these places are situated near the place where the dead body was found. The panchanama also shows the same thing. Exh. 33 shows that 3 shirts were recovered. This circumstance is not consistent with the case of the prosecution that the accused had removed the clothes from the person of the deceased and these clothes were concealed. There is no explanation from Mangala on the circumstance.26. The cross examination of the panch witness shows that he is a stock witness of police. There is one more circumstance, like the absence of wrist watch with the belt. The wrist watch of the deceased is described by Mangala but the wrist watch is not traced. Only belt of the wrist watch was sent to C.A. and blood was found on this belt. This belt was lying in open condition as per the evidence of spot panchanama and it was near the place where dead body was found. The clothes were not sent to the C.A. and no reason is given for the same. Blood of group "B" was detected on the belt of wrist watch and the deceased was having similar blood group as per the case of the prosecution. In view of these circumstances, and discrepancies, it is not possible to rely on the evidence of so-called statement given by accused to police and so-called discovery of aforesaid articles made on the basis of the statement of accused.27. The evidence of investigating officer and the police papers which include remand reports show that 3 more persons were arrested as suspects by police. This circumstance shows that either police believed in the story given by Mangala that some persons had taken away the deceased with them and they had committed the murder of husband of Mangala or police did not believe Mangala and they were in search of real culprits. This circumstance also creates doubt about the story given by Mangala.28. It is already observed that it was necessary for prosecution to examine the landlord from Shegaon and the landlord from Jalgaon. In absence of the evidence of these 2 persons, the evidence of Mangala has become very weak and it is highly doubtful in nature. From such evidence, inference cannot be drawn that only the accused had the opportunity to finish deceased. It is already observed that there is no convincing evidence on motive. When case rests on circumstantial evidence, motive becomes one link in the chain of circumstances. Such link is missing in the present case.29. The defence has admitted post mortem report. The cause of death is recorded as "Coma due to head injury". The dead body was found on 14/12/03 but p.m. was conducted on 15/12/03 between 11.30 a.m. and 1.30 p.m. There is a mention about rigarmortis and decomposition. The doctor who conducted post mortem examination has however, not given approximate time of the death. In such a case, it is always necessary to fix approximate time of death and so it is again one more lacuna in the case of the prosecution. The medical evidence and the C.A. report in respect of viscera shows that substantial quantity of alcohol was detected in the viscera. No investigation was made by police to find out as to where and when liquor was consumed by deceased. This is again a lacuna in the case of prosecution and it creates more doubt about the case of the prosecution.30. Even if the story given by Mangala is believed, the so-called disclosure of accused does not lead to only one inference of guilt. If the conduct or action of accused is open to two constructions like the accused saw the murder committed by others or he is guilty of murder, the Court cannot assume that the action of accused was criminal. In any case, from the aforesaid circumstances, the Court can come to only one conclusion that the testimony of Mangala (P.W.1) is tainted to the core and it needs to be discarded. In view of the possibility that Ishwar Patil had seen the deceased alone at Jalgaon in his house on the night between 12th and 13th December 2003, the circumstance that the deceased was seen alive in the company of accused at 3.45 p.m. on 12th December, 2003, ceased to be a circumstance of incriminating character. Due to all these circumstances, and lacunae, this Court has no alternative than to hold that the accused is entitled to benefit of doubt. The aforesaid circumstances are not considered in proper perspective by the trial Court and that is why the trial Court has come to other conclusion. The judgment and order of the trial Court needs to be set aside.
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police had searched the place in the vicinity as heap of stems of Jawar and police had noticed some blood stains at the distance of 25 ft from that spot. It can be said that during the preparation of the spot panchanama, police must have searched the vicinity of the spot to trace out other articles as the dead body was in naked condition. In view of these circumstances, the case of prosecution that only after arrest of the accused, the clothes came to be recovered, does not appear to be probable in nature.25. Pitroda (P.W.2) a panch witness on the discovery of the articles has given evidence that on 13/2/04, accused gave statement to police and showed willingness to produce clothes, shoes, wrist watch and belt of the deceased. At Exh.25 there is a memorandum of the statement of the accused. The panch witness has deposed that he also acted as a photographer and he took photographs of the incident of discovery. He has deposed that after recording statement, they went to Khedi village and from there, the accused produced clothes and shoes which were found to be kept beneath a stone. The panch witness has given evidence that the accused also showed a place where belt of the wrist watch was lying and the place where the dead body was concealed. It is already observed that all these places are situated near the place where the dead body was found. The panchanama also shows the same thing. Exh. 33 shows that 3 shirts were recovered. This circumstance is not consistent with the case of the prosecution that the accused had removed the clothes from the person of the deceased and these clothes were concealed. There is no explanation from Mangala on the circumstance.26. The cross examination of the panch witness shows that he is a stock witness of police. There is one more circumstance, like the absence of wrist watch with the belt. The wrist watch of the deceased is described by Mangala but the wrist watch is not traced. Only belt of the wrist watch was sent to C.A. and blood was found on this belt. This belt was lying in open condition as per the evidence of spot panchanama and it was near the place where dead body was found. The clothes were not sent to the C.A. and no reason is given for the same. Blood of group "B" was detected on the belt of wrist watch and the deceased was having similar blood group as per the case of the prosecution. In view of these circumstances, and discrepancies, it is not possible to rely on the evidence ofstatement given by accused to police anddiscovery of aforesaid articles made on the basis of the statement of accused.The evidence of investigating officer and the police papers which include remand reports show that 3 more persons were arrested as suspects by police. This circumstance shows that either police believed in the story given by Mangala that some persons had taken away the deceased with them and they had committed the murder of husband of Mangala or police did not believe Mangala and they were in search of real culprits. This circumstance also creates doubt about the story given by Mangala.28. It is already observed that it was necessary for prosecution to examine the landlord from Shegaon and the landlord from Jalgaon. In absence of the evidence of these 2 persons, the evidence of Mangala has become very weak and it is highly doubtful in nature. From such evidence, inference cannot be drawn that only the accused had the opportunity to finish deceased. It is already observed that there is no convincing evidence on motive. When case rests on circumstantial evidence, motive becomes one link in the chain of circumstances. Such link is missing in the present case.29. The defence has admitted post mortem report. The cause of death is recorded as "Coma due to head injury". The dead body was found on 14/12/03 but p.m. was conducted on 15/12/03 between 11.30 a.m. and 1.30 p.m. There is a mention about rigarmortis and decomposition. The doctor who conducted post mortem examination has however, not given approximate time of the death. In such a case, it is always necessary to fix approximate time of death and so it is again one more lacuna in the case of the prosecution. The medical evidence and the C.A. report in respect of viscera shows that substantial quantity of alcohol was detected in the viscera. No investigation was made by police to find out as to where and when liquor was consumed by deceased. This is again a lacuna in the case of prosecution and it creates more doubt about the case of the prosecution.30. Even if the story given by Mangala is believed, thedisclosure of accused does not lead to only one inference of guilt. If the conduct or action of accused is open to two constructions like the accused saw the murder committed by others or he is guilty of murder, the Court cannot assume that the action of accused was criminal. In any case, from the aforesaid circumstances, the Court can come to only one conclusion that the testimony of Mangala (P.W.1) is tainted to the core and it needs to be discarded. In view of the possibility that Ishwar Patil had seen the deceased alone at Jalgaon in his house on the night between 12th and 13th December 2003, the circumstance that the deceased was seen alive in the company of accused at 3.45 p.m. on 12th December, 2003, ceased to be a circumstance of incriminating character. Due to all these circumstances, and lacunae, this Court has no alternative than to hold that the accused is entitled to benefit of doubt. The aforesaid circumstances are not considered in proper perspective by the trial Court and that is why the trial Court has come to other conclusion. The judgment and order of the trial Court needs to be set aside.
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M/S. Kec International Ltd Vs. Shankar Lal Sharma | law.As the matter stands now, I am of the considered view that the petitioner should be deemed to be in continuous service. On the question of the subsequent termination of his service, no formal approval having been taken within the meaning of Sec. 33(2)(b) of the Act, the net effect is that the continues in service and the subsequent order of termination of his services would not be deemed to be operative. While the final decision is to be arrived at by the Labour Court again on these two specified questions. I would make it clear that the petitioner Shanker Lal would be deemed to be in continuous service and it would not be construed that the Award as made by the Labour Court as regards directing reinstatement of the workman Shankar Lal Sharma has in any manner been set aside or recalled." (Emphasis supplied) 13. Since both the writ petitions were disposed of by the aforesaid common judgment, the appellant filed two special appeals against the aforesaid judgment. The Special Appeal No. 589 of 1997 was filed by the appellant against the decision of the Single Judge in S.B. Civil Writ Petition No. 4127 of 1994 on the ground that the learned Single Judge had examined the factual aspect of the matter was if it was a court of appeal and the conclusion arrived at with regard to the number of days the workman had worked with the appellant company during 12 months immediately preceding his termination on 8.8.1981 was factually incorrect. It was prayed that the order of the Single Judge be set aside and the writ petition be allowed and the relief be granted in terms of the prayers made in the writ petition. 14. Special Appeal No. 591 of 1997 was filed by the appellant against the decision of the Single Judge in S.B. Civil Writ Petition No. 2860 of 1997 on the ground that the learned Single Judge had exceeded in the exercise of its jurisdiction in holding that the order of termination of the respondents services would be inoperative as formal approval under Section 33(2)(b) of the Act for subsequent dismissal had not been obtained. 15. The Division Bench dismissed the Special Appeal No. 589 of 1997 by observing that the Single Judge could examine the factual aspect of the matter n the basis of the evidence available and upheld the order of remand passed by the Single Judge to ascertain as to whether the workman had completed 240 days of service or not. The learned counsel for the appellant does not challenge this finding of the Division Bench.16. The Division Bench dismissed the Special Appeal No. 591 of 1997 as well as rejected the contention advanced on behalf of the appellant that the Single Judge had exceeded in the exercise of his jurisdiction that the subsequent dismissal of the respondent on 8.4.1992 will be inoperative because of the lack of formal approval under Section 33(2)(b) of the Act for the subsequent dismissal.17. The appellant has filed the present appeals for setting aside the observations made by the Single Judge, reproduced in para 5 of this judgment, and its affirmation by the Division Bench. The counsel appearing for the respondent-workman fairly concedes that the aforesaid observations made by the Single Judge as affirmed by the Division Bench did not arise in the present proceedings and therefore, unwarranted and uncalled for being obiter. He has no objection to the setting aside the above quoted observations made by the Single Judge as affirmed by the Division Bench. Accordingly, the above quoted observations made by the Single Judge in its order which have been later on affirmed by the Division Bench are set aside.18. Learned counsel for the appellant prayed that in view of the setting aside of these observations, the tribunal be directed to decide the application filed by the appellant for approval of the subsequent proceeding with regard to the subsequent dismissal afresh, we do not agree with this contention.19. The appellant filed an application before the tribunal on 8.1.1999 for fixing the date in application under Section 33(2)(b) of the Act pursuant to the tribunals order dated 7.4.1993 on the ground that the order of Single Judge had been stayed by the Division Bench. Tribunal dismissed the application filed by the appellant on the ground that the appellant was indirectly seeking review of its order dated 7.4.1997.20. Appellant, being aggrieved, by the aforesaid order of the tribunal filed CWP No. 4618 of 1997. This writ petition was dismissed by the Single Judge on 19.8.2002. Aggrieved against the order passed by the Single Judge in CWP No. 4618 of 1997, the appellant has filed DBSAW No. 1006 of 2002 which is still pending. The appellant would be at liberty to urge the point regarding the approval under Section 33(2)(b) of the Act to the subsequent dismissal of the respondent-workman in DBSAW No. 1006 of 2002. We agree in substance with the contention raised by the learned counsel for the appellant that the appellant is entitled to get a decision on merits on the application filed by it under Section 33(2)(b) of the Act seeking approval on the subsequent action taken but for that we cannot send the case back to the industrial tribunal as the tribunal has already decided the said application and the matter is now pending for adjudication before the High Court in DBSAW No. 1006 of 2002. Remittance of the case to the tribunal would amount to deciding the matter pending before the High Court in DBSAW No. 1006 of 2002 which we refrain ourselves from doing.21. The Division Bench shall decide DBSAW No. 1006 of 2002 without being influenced by any of the observations made by the Single Judge, the Division Bench or by us regarding the approval of the application filed by the appellant under Section 33(2)(b) of the Act with regard to the subsequent dismissal of the respondent-workman. All contentions are left open to the parties in this regard. | 1[ds]18. Learned counsel for the appellant prayed that in view of the setting aside of these observations, the tribunal be directed to decide the application filed by the appellant for approval of the subsequent proceeding with regard to the subsequent dismissal afresh,we do not agree with this contention.19.The appellant filed an application before the tribunal on 8.1.1999 for fixing the date in application under Section 33(2)(b) of the Act pursuant to the tribunals order dated 7.4.1993 on the ground that the order of Single Judge had been stayed by the Division Bench. Tribunal dismissed the application filed by the appellant on the ground that the appellant was indirectly seeking review of its order dated 7.4.1997.20. Appellant, being aggrieved, by the aforesaid order of the tribunal filed CWP No. 4618 of 1997. This writ petition was dismissed by the Single Judge on 19.8.2002. Aggrieved against the order passed by the Single Judge in CWP No. 4618 of 1997, the appellant has filed DBSAW No. 1006 of 2002 which is still pending.The appellant would be at liberty to urge the point regarding the approval under Section 33(2)(b) of the Act to the subsequent dismissal of thein DBSAW No. 1006 of 2002. We agree in substance with the contention raised by the learned counsel for the appellant that the appellant is entitled to get a decision on merits on the application filed by it under Section 33(2)(b) of the Act seeking approval on the subsequent action taken but for that we cannot send the case back to the industrial tribunal as the tribunal has already decided the said application and the matter is now pending for adjudication before the High Court in DBSAW No. 1006 of 2002. Remittance of the case to the tribunal would amount to deciding the matter pending before the High Court in DBSAW No. 1006 of 2002 which we refrain ourselves from doing.21. The Division Bench shall decide DBSAW No. 1006 of 2002 without being influenced by any of the observations made by the Single Judge, the Division Bench or by us regarding the approval of the application filed by the appellant under Section 33(2)(b) of the Act with regard to the subsequent dismissal of theAll contentions are left open to the parties in this regard. | 1 | 2,491 | 429 | ### Instruction:
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law.As the matter stands now, I am of the considered view that the petitioner should be deemed to be in continuous service. On the question of the subsequent termination of his service, no formal approval having been taken within the meaning of Sec. 33(2)(b) of the Act, the net effect is that the continues in service and the subsequent order of termination of his services would not be deemed to be operative. While the final decision is to be arrived at by the Labour Court again on these two specified questions. I would make it clear that the petitioner Shanker Lal would be deemed to be in continuous service and it would not be construed that the Award as made by the Labour Court as regards directing reinstatement of the workman Shankar Lal Sharma has in any manner been set aside or recalled." (Emphasis supplied) 13. Since both the writ petitions were disposed of by the aforesaid common judgment, the appellant filed two special appeals against the aforesaid judgment. The Special Appeal No. 589 of 1997 was filed by the appellant against the decision of the Single Judge in S.B. Civil Writ Petition No. 4127 of 1994 on the ground that the learned Single Judge had examined the factual aspect of the matter was if it was a court of appeal and the conclusion arrived at with regard to the number of days the workman had worked with the appellant company during 12 months immediately preceding his termination on 8.8.1981 was factually incorrect. It was prayed that the order of the Single Judge be set aside and the writ petition be allowed and the relief be granted in terms of the prayers made in the writ petition. 14. Special Appeal No. 591 of 1997 was filed by the appellant against the decision of the Single Judge in S.B. Civil Writ Petition No. 2860 of 1997 on the ground that the learned Single Judge had exceeded in the exercise of its jurisdiction in holding that the order of termination of the respondents services would be inoperative as formal approval under Section 33(2)(b) of the Act for subsequent dismissal had not been obtained. 15. The Division Bench dismissed the Special Appeal No. 589 of 1997 by observing that the Single Judge could examine the factual aspect of the matter n the basis of the evidence available and upheld the order of remand passed by the Single Judge to ascertain as to whether the workman had completed 240 days of service or not. The learned counsel for the appellant does not challenge this finding of the Division Bench.16. The Division Bench dismissed the Special Appeal No. 591 of 1997 as well as rejected the contention advanced on behalf of the appellant that the Single Judge had exceeded in the exercise of his jurisdiction that the subsequent dismissal of the respondent on 8.4.1992 will be inoperative because of the lack of formal approval under Section 33(2)(b) of the Act for the subsequent dismissal.17. The appellant has filed the present appeals for setting aside the observations made by the Single Judge, reproduced in para 5 of this judgment, and its affirmation by the Division Bench. The counsel appearing for the respondent-workman fairly concedes that the aforesaid observations made by the Single Judge as affirmed by the Division Bench did not arise in the present proceedings and therefore, unwarranted and uncalled for being obiter. He has no objection to the setting aside the above quoted observations made by the Single Judge as affirmed by the Division Bench. Accordingly, the above quoted observations made by the Single Judge in its order which have been later on affirmed by the Division Bench are set aside.18. Learned counsel for the appellant prayed that in view of the setting aside of these observations, the tribunal be directed to decide the application filed by the appellant for approval of the subsequent proceeding with regard to the subsequent dismissal afresh, we do not agree with this contention.19. The appellant filed an application before the tribunal on 8.1.1999 for fixing the date in application under Section 33(2)(b) of the Act pursuant to the tribunals order dated 7.4.1993 on the ground that the order of Single Judge had been stayed by the Division Bench. Tribunal dismissed the application filed by the appellant on the ground that the appellant was indirectly seeking review of its order dated 7.4.1997.20. Appellant, being aggrieved, by the aforesaid order of the tribunal filed CWP No. 4618 of 1997. This writ petition was dismissed by the Single Judge on 19.8.2002. Aggrieved against the order passed by the Single Judge in CWP No. 4618 of 1997, the appellant has filed DBSAW No. 1006 of 2002 which is still pending. The appellant would be at liberty to urge the point regarding the approval under Section 33(2)(b) of the Act to the subsequent dismissal of the respondent-workman in DBSAW No. 1006 of 2002. We agree in substance with the contention raised by the learned counsel for the appellant that the appellant is entitled to get a decision on merits on the application filed by it under Section 33(2)(b) of the Act seeking approval on the subsequent action taken but for that we cannot send the case back to the industrial tribunal as the tribunal has already decided the said application and the matter is now pending for adjudication before the High Court in DBSAW No. 1006 of 2002. Remittance of the case to the tribunal would amount to deciding the matter pending before the High Court in DBSAW No. 1006 of 2002 which we refrain ourselves from doing.21. The Division Bench shall decide DBSAW No. 1006 of 2002 without being influenced by any of the observations made by the Single Judge, the Division Bench or by us regarding the approval of the application filed by the appellant under Section 33(2)(b) of the Act with regard to the subsequent dismissal of the respondent-workman. All contentions are left open to the parties in this regard.
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18. Learned counsel for the appellant prayed that in view of the setting aside of these observations, the tribunal be directed to decide the application filed by the appellant for approval of the subsequent proceeding with regard to the subsequent dismissal afresh,we do not agree with this contention.19.The appellant filed an application before the tribunal on 8.1.1999 for fixing the date in application under Section 33(2)(b) of the Act pursuant to the tribunals order dated 7.4.1993 on the ground that the order of Single Judge had been stayed by the Division Bench. Tribunal dismissed the application filed by the appellant on the ground that the appellant was indirectly seeking review of its order dated 7.4.1997.20. Appellant, being aggrieved, by the aforesaid order of the tribunal filed CWP No. 4618 of 1997. This writ petition was dismissed by the Single Judge on 19.8.2002. Aggrieved against the order passed by the Single Judge in CWP No. 4618 of 1997, the appellant has filed DBSAW No. 1006 of 2002 which is still pending.The appellant would be at liberty to urge the point regarding the approval under Section 33(2)(b) of the Act to the subsequent dismissal of thein DBSAW No. 1006 of 2002. We agree in substance with the contention raised by the learned counsel for the appellant that the appellant is entitled to get a decision on merits on the application filed by it under Section 33(2)(b) of the Act seeking approval on the subsequent action taken but for that we cannot send the case back to the industrial tribunal as the tribunal has already decided the said application and the matter is now pending for adjudication before the High Court in DBSAW No. 1006 of 2002. Remittance of the case to the tribunal would amount to deciding the matter pending before the High Court in DBSAW No. 1006 of 2002 which we refrain ourselves from doing.21. The Division Bench shall decide DBSAW No. 1006 of 2002 without being influenced by any of the observations made by the Single Judge, the Division Bench or by us regarding the approval of the application filed by the appellant under Section 33(2)(b) of the Act with regard to the subsequent dismissal of theAll contentions are left open to the parties in this regard.
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Laxman Lingojirao Mohite Vs. Dattatraia Jagannath Bidie & Others | claimant are disputed. The grievance in relation to the findings by the Tribunal that the scooter was driven on the relevant day in a negligent manner is also now not disputed. The only grievance made by the Learned Counsel for the appellant is that the Tribunal was in error on two aspects; that for failure of the driver to produce his driving licence, it was urged, that the Tribunal could not have absolved the Insurer, New India Assurance Co., and the second is that there has been duplication in the matter of grant of compensation on different sub-heads insofar as General Damages are concerned as also larger compensation on the Sub-head of Special Damages qua the loss of grocery business of the original claimant, has been awarded.4. The original claimant in his deposition stated that during the time the accident took place, which was at about 9 p.m. his driving licence issued to him by the concerned office of the Karnataka State was lost. He also made a statement that he could not get duplicate copy so as to produce before the Tribunal. Indeed the Tribunal felt that since the driving licence was not produced by the driver of the scooter, regard being had to the terms of the policy, Insurer was not liable to indemnify on the basis that driver was not armed with a driving licence.5. We are unable to accept the findings of the Tribunal nor statement of liability. We will presently point out that the Supreme Court in the decision of Narchinva V. Kamat and Anr. v. Alfredo Antonio Doc Martins and Ors. reported in AIR 1985 SC 1291 : II (1985) ACC 34 (SC), clearly held that when the Insurer wants to get out of the payment of the liability upon a defence that a driver is not covered by a driving licence, it is for the Insurance Company to produce a certificate of the concerned Regional Transport Officer that the concerned driver was never issued a driving licence. The facts of the case were that Narchinva v. Kamat who drove the vehicle could not produce his driving licence; that his case was that he had been issued licence by the concerned officer in the State of Karnataka. The Insurance Company in that case had taken a similar defence as in the present case. On the basis of the law settled by the Supreme Court, the Apex Court reversed the judgment of the High Court and set aside the Award of the Tribunal partly and held that the Insurance Company is liable to pay the awarded compensation, for failure to prove that there was no licence.6. Apart from this Mr. Afonso, Learned Counsel appearing for the Insurance Company, has made a statement that the driver in fact has produced a certificate that he had been issued a licence by the State of Karnataka, Regional Transport Officer and it appears that the case of the driver was genuine that he was holding a driving licence on the relevant day. It is therefore difficult to sustain the Tribunals finding that the Insurance Company is to be absolved from liability in the present case.7. We now come to the next aspect of the matter regarding the grievance in relation to the compensation granted under various heads and that too in excess. The Tribunal awarded a sum of Rs. 10,000/- by way of Special Damages upon taking into consideration the evidence of the original claimant that he had to expend a sum of Rs. 2,000/- for medical expenses and Rs. 1,500/- towards conveyance. The Tribunal however did not accept Rs. 40,000/- claimed by the original claimant towards loss of business. It is common ground that the original claimant was in grocery business and he was running it after having taken the business from somebody else. He claimed that his daily average income was anywhere between Rs. 60/- to Rs. 70/-. The Tribunal was right in holding that the original claimant did not bring any cogent evidence so as to award him damages by way of loss of business at Rs. 40,000/-, as claimed by him. In our view, the Tribunal granted in all the sum of Rs. 10,000/- by way of Special Damages, which is inclusive of medical expenses and conveyance as the claimant had to come from Veling to Panjim for receiving necessary treatment from time-to-time. A sum of Rs. 6,500/- towards loss of business could be held to be a reasonable and just compensation on the sub-head of loss of business.8. The Tribunal, therefore, for pain, shock and suffering awarded a sum of Rs. 20,000/- on a finding that the claimant was immobilized for a period of not less than six months. The Tribunal thereafter awarded another sum of Rs. 20,000/- on the ground that with the compound fracture the claimant was having a permanent disability at 8% which naturally, as mentioned, is including loss of amenities. The Tribunal thereafter awarded a further sum of Rs. 15,000/- by saying that the original claimant will have to bear throughout his life the disability of having to walk with a limp and that way his movement would be restricted.Upon determination of the entire compensation which stood at Rs. 65,000/-, the Tribunal thereafter applied the deduction at 10% on the ground that the claimant is receiving the lump-sum award and adjudicated the compensation of Rs. 60,000/- to be paid by the driver and the owner.9. There is justification for the appellant and the Insurer to dispute that a sum of Rs. 15,000/- awarded on the sub-head of original claimant requiring to bear disability and having to walk with a limp with restricted movement is sheer duplication of the compensation of Rs. 20,000/- earlier made on the ground that the original claimant suffered a permanent disability to the extent of 8%. There can be no difficulty, therefore, to hold that there is no justification whatsoever for the amount of additional compensation of Rs. 15,000/- and which requires to be set aside. | 1[ds]4. The original claimant in his deposition stated that during the time the accident took place, which was at about 9 p.m. his driving licence issued to him by the concerned office of the Karnataka State was lost. He also made a statement that he could not get duplicate copy so as to produce before the Tribunal. Indeed the Tribunal felt that since the driving licence was not produced by the driver of the scooter, regard being had to the terms of the policy, Insurer was not liable to indemnify on the basis that driver was not armed with a driving licence.5. We are unable to accept the findings of the Tribunal nor statement offacts of the case were that Narchinva v. Kamat who drove the vehicle could not produce his driving licence; that his case was that he had been issued licence by the concerned officer in the State of Karnataka. The Insurance Company in that case had taken a similar defence as in the present case. On the basis of the law settled by the Supreme Court, the Apex Court reversed the judgment of the High Court and set aside the Award of the Tribunal partly and held that the Insurance Company is liable to pay the awarded compensation, for failure to prove that there was no licence.It is therefore difficult to sustain the Tribunals finding that the Insurance Company is to be absolved from liability in the present case.7. We now come to the next aspect of the matter regarding the grievance in relation to the compensation granted under various heads and that too in excess. The Tribunal awarded a sum of Rs. 10,000/by way of Special Damages upon taking into consideration the evidence of the original claimant that he had to expend a sum of Rs. 2,000/for medical expenses and Rs. 1,500/towards conveyance. The Tribunal however did not accept Rs. 40,000/claimed by the original claimant towards loss of business. It is common ground that the original claimant was in grocery business and he was running it after having taken the business from somebody else. He claimed that his daily average income was anywhere between Rs. 60/The Tribunal was right in holding that the original claimant did not bring any cogent evidence so as to award him damages by way of loss of business at Rs.as claimed by him. In our view, the Tribunal granted in all the sum of Rs. 10,000/by way of Special Damages, which is inclusive of medical expenses and conveyance as the claimant had to come from Veling to Panjim for receiving necessary treatment fromA sum of Rs. 6,500/towards loss of business could be held to be a reasonable and just compensation on theof loss of business.8. The Tribunal, therefore, for pain, shock and suffering awarded a sum of Rs. 20,000/on a finding that the claimant was immobilized for a period of not less than six months. The Tribunal thereafter awarded another sum of Rs. 20,000/on the ground that with the compound fracture the claimant was having a permanent disability at 8% which naturally, as mentioned, is including loss of amenities. The Tribunal thereafter awarded a further sum of Rs. 15,000/by saying that the original claimant will have to bear throughout his life the disability of having to walk with a limp and that way his movement would be restricted.Upon determination of the entire compensation which stood at Rs.the Tribunal thereafter applied the deduction at 10% on the ground that the claimant is receiving theaward and adjudicated the compensation of Rs. 60,000/to be paid by the driver and the owner.9. There is justification for the appellant and the Insurer to dispute that a sum of Rs. 15,000/awarded on theof original claimant requiring to bear disability and having to walk with a limp with restricted movement is sheer duplication of the compensation of Rs. 20,000/earlier made on the ground that the original claimant suffered a permanent disability to the extent of 8%. There can be no difficulty, therefore, to hold that there is no justification whatsoever for the amount of additional compensation of Rs. 15,000/and which requires to be set aside. | 1 | 1,428 | 741 | ### 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:
claimant are disputed. The grievance in relation to the findings by the Tribunal that the scooter was driven on the relevant day in a negligent manner is also now not disputed. The only grievance made by the Learned Counsel for the appellant is that the Tribunal was in error on two aspects; that for failure of the driver to produce his driving licence, it was urged, that the Tribunal could not have absolved the Insurer, New India Assurance Co., and the second is that there has been duplication in the matter of grant of compensation on different sub-heads insofar as General Damages are concerned as also larger compensation on the Sub-head of Special Damages qua the loss of grocery business of the original claimant, has been awarded.4. The original claimant in his deposition stated that during the time the accident took place, which was at about 9 p.m. his driving licence issued to him by the concerned office of the Karnataka State was lost. He also made a statement that he could not get duplicate copy so as to produce before the Tribunal. Indeed the Tribunal felt that since the driving licence was not produced by the driver of the scooter, regard being had to the terms of the policy, Insurer was not liable to indemnify on the basis that driver was not armed with a driving licence.5. We are unable to accept the findings of the Tribunal nor statement of liability. We will presently point out that the Supreme Court in the decision of Narchinva V. Kamat and Anr. v. Alfredo Antonio Doc Martins and Ors. reported in AIR 1985 SC 1291 : II (1985) ACC 34 (SC), clearly held that when the Insurer wants to get out of the payment of the liability upon a defence that a driver is not covered by a driving licence, it is for the Insurance Company to produce a certificate of the concerned Regional Transport Officer that the concerned driver was never issued a driving licence. The facts of the case were that Narchinva v. Kamat who drove the vehicle could not produce his driving licence; that his case was that he had been issued licence by the concerned officer in the State of Karnataka. The Insurance Company in that case had taken a similar defence as in the present case. On the basis of the law settled by the Supreme Court, the Apex Court reversed the judgment of the High Court and set aside the Award of the Tribunal partly and held that the Insurance Company is liable to pay the awarded compensation, for failure to prove that there was no licence.6. Apart from this Mr. Afonso, Learned Counsel appearing for the Insurance Company, has made a statement that the driver in fact has produced a certificate that he had been issued a licence by the State of Karnataka, Regional Transport Officer and it appears that the case of the driver was genuine that he was holding a driving licence on the relevant day. It is therefore difficult to sustain the Tribunals finding that the Insurance Company is to be absolved from liability in the present case.7. We now come to the next aspect of the matter regarding the grievance in relation to the compensation granted under various heads and that too in excess. The Tribunal awarded a sum of Rs. 10,000/- by way of Special Damages upon taking into consideration the evidence of the original claimant that he had to expend a sum of Rs. 2,000/- for medical expenses and Rs. 1,500/- towards conveyance. The Tribunal however did not accept Rs. 40,000/- claimed by the original claimant towards loss of business. It is common ground that the original claimant was in grocery business and he was running it after having taken the business from somebody else. He claimed that his daily average income was anywhere between Rs. 60/- to Rs. 70/-. The Tribunal was right in holding that the original claimant did not bring any cogent evidence so as to award him damages by way of loss of business at Rs. 40,000/-, as claimed by him. In our view, the Tribunal granted in all the sum of Rs. 10,000/- by way of Special Damages, which is inclusive of medical expenses and conveyance as the claimant had to come from Veling to Panjim for receiving necessary treatment from time-to-time. A sum of Rs. 6,500/- towards loss of business could be held to be a reasonable and just compensation on the sub-head of loss of business.8. The Tribunal, therefore, for pain, shock and suffering awarded a sum of Rs. 20,000/- on a finding that the claimant was immobilized for a period of not less than six months. The Tribunal thereafter awarded another sum of Rs. 20,000/- on the ground that with the compound fracture the claimant was having a permanent disability at 8% which naturally, as mentioned, is including loss of amenities. The Tribunal thereafter awarded a further sum of Rs. 15,000/- by saying that the original claimant will have to bear throughout his life the disability of having to walk with a limp and that way his movement would be restricted.Upon determination of the entire compensation which stood at Rs. 65,000/-, the Tribunal thereafter applied the deduction at 10% on the ground that the claimant is receiving the lump-sum award and adjudicated the compensation of Rs. 60,000/- to be paid by the driver and the owner.9. There is justification for the appellant and the Insurer to dispute that a sum of Rs. 15,000/- awarded on the sub-head of original claimant requiring to bear disability and having to walk with a limp with restricted movement is sheer duplication of the compensation of Rs. 20,000/- earlier made on the ground that the original claimant suffered a permanent disability to the extent of 8%. There can be no difficulty, therefore, to hold that there is no justification whatsoever for the amount of additional compensation of Rs. 15,000/- and which requires to be set aside.
### Response:
1
### Explanation:
4. The original claimant in his deposition stated that during the time the accident took place, which was at about 9 p.m. his driving licence issued to him by the concerned office of the Karnataka State was lost. He also made a statement that he could not get duplicate copy so as to produce before the Tribunal. Indeed the Tribunal felt that since the driving licence was not produced by the driver of the scooter, regard being had to the terms of the policy, Insurer was not liable to indemnify on the basis that driver was not armed with a driving licence.5. We are unable to accept the findings of the Tribunal nor statement offacts of the case were that Narchinva v. Kamat who drove the vehicle could not produce his driving licence; that his case was that he had been issued licence by the concerned officer in the State of Karnataka. The Insurance Company in that case had taken a similar defence as in the present case. On the basis of the law settled by the Supreme Court, the Apex Court reversed the judgment of the High Court and set aside the Award of the Tribunal partly and held that the Insurance Company is liable to pay the awarded compensation, for failure to prove that there was no licence.It is therefore difficult to sustain the Tribunals finding that the Insurance Company is to be absolved from liability in the present case.7. We now come to the next aspect of the matter regarding the grievance in relation to the compensation granted under various heads and that too in excess. The Tribunal awarded a sum of Rs. 10,000/by way of Special Damages upon taking into consideration the evidence of the original claimant that he had to expend a sum of Rs. 2,000/for medical expenses and Rs. 1,500/towards conveyance. The Tribunal however did not accept Rs. 40,000/claimed by the original claimant towards loss of business. It is common ground that the original claimant was in grocery business and he was running it after having taken the business from somebody else. He claimed that his daily average income was anywhere between Rs. 60/The Tribunal was right in holding that the original claimant did not bring any cogent evidence so as to award him damages by way of loss of business at Rs.as claimed by him. In our view, the Tribunal granted in all the sum of Rs. 10,000/by way of Special Damages, which is inclusive of medical expenses and conveyance as the claimant had to come from Veling to Panjim for receiving necessary treatment fromA sum of Rs. 6,500/towards loss of business could be held to be a reasonable and just compensation on theof loss of business.8. The Tribunal, therefore, for pain, shock and suffering awarded a sum of Rs. 20,000/on a finding that the claimant was immobilized for a period of not less than six months. The Tribunal thereafter awarded another sum of Rs. 20,000/on the ground that with the compound fracture the claimant was having a permanent disability at 8% which naturally, as mentioned, is including loss of amenities. The Tribunal thereafter awarded a further sum of Rs. 15,000/by saying that the original claimant will have to bear throughout his life the disability of having to walk with a limp and that way his movement would be restricted.Upon determination of the entire compensation which stood at Rs.the Tribunal thereafter applied the deduction at 10% on the ground that the claimant is receiving theaward and adjudicated the compensation of Rs. 60,000/to be paid by the driver and the owner.9. There is justification for the appellant and the Insurer to dispute that a sum of Rs. 15,000/awarded on theof original claimant requiring to bear disability and having to walk with a limp with restricted movement is sheer duplication of the compensation of Rs. 20,000/earlier made on the ground that the original claimant suffered a permanent disability to the extent of 8%. There can be no difficulty, therefore, to hold that there is no justification whatsoever for the amount of additional compensation of Rs. 15,000/and which requires to be set aside.
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M/S. Tata Chemicals Ltd Vs. Commnr. Of Customs(Preventive)Jamnagar | where the importer has furnished all the necessary documents to support the fact that the ash content in the coking coal imported is less than 12%, the proper officer must, when questioned, state that, at the very least, the documents produced do not inspire confidence for some good prima facie reason. In the present case, as has been noted above, the Revenue has never stated that CASCO’s certificate of quality ought to be rejected or is defective in any manner. This being the case, it is clear that the entire chemical analysis of the imported goods done by the Department was ultra vires Section 18(b) of the Customs Act. 15. Statutes often use expressions such as “deems it necessary”, “reason to believe” etc. Suffice it to say that these expressions have been held not to mean the subjective satisfaction of the officer concerned. Such power given to the concerned officer is not an arbitrary power and has to be exercised in accordance with the restraints imposed by law. That this is a well settled position of law is clear from the following judgments. See: Rohtas Industries Ltd. v. S.D. Agarwal, (1969) 3 S.C.R. 108 at 129. To similar effect is the judgment in Sheo Nath Singh v. Appellate Assistant Commissioner of Income Tax, Calcutta, (1972) 1 SCR 175 at 182. In that case it was held as under: “…There can be no manner of doubt that the words “reason to believe” suggest that the belief must be that of an honest and reasonable person based upon reasonable grounds and that the Income Tax Officer may act on direct or circumstantial evidence but not on mere suspicion, gossip or rumour. The Income Tax Officer would be acting without jurisdiction if the reason for his belief that the conditions are satisfied does not exist or is not material or relevant to the belief required by the section. The Court can always examine this aspect though the declaration or sufficiency of the reasons for the belief cannot be investigated by the Court.” See also Bar Council of Maharashtra v. M.V. Dabholkar, [1976] 2 S.C.R. 48 at 51. N. Nagendra Rao & Co. v. State of A.P. (1994) 6 SCC 205 at 216. 16. The admitted position on record is that the samples drawn were not drawn in accordance with law and were drawn with no regard whatsoever to IS 436. That IS 436 would apply to the facts of the present case is made clear by our judgment reported in Bombay Oil Industries (P) Ltd. v. Union of India, 1995 (77) E.L.T. 32 (S.C.), where this Court held following Union of India v. Delhi Cloth & General Mills Co. Ltd., 1963 Suppl. (1) SCR 586, that if the method of testing of any item of Central Excise tariff is not mentioned, then the Indian Standard Institution’s method should be applied. That this would apply to the Customs Act as well. IS 436 lays down:- ““5. SAMPLING FROM SHIPS DURING LOADING OR UNLOADING5.1 Sub-lots – For the purpose of sampling, the entire quantity of coal in a ship shall be divided into a suitable number of sub-lots of approximately equal weight as specified in Table 1.5.1.1 A gross sample shall be drawn from each of the sub-lots and shall be kept separately so that there will be as many gross samples as the number of sub-lots into which the lot has been divided.5.2. Sampling of coal from ships shall be carried out, as far as practicable, when coal is in motion. If it is taken on a conveyer, the gross sample shall be collected as per the procedure laid down in Table 3. If not, the gross samples may be drawn during loading or unloading of the ship. For this purpose, the number of increments to be taken shall be governed by the weight of the gross sample and the weight of increment as specified in Table 3 for various size groups of coal.”TABLE 1 NUMBER OF SUB-LOTS/GROSS SAMPLES(Clauses 0.3.4.1 and 3.1)Weight of the Lot (Metric Tonnes)No. of sub-Lots/Gross SamplesUpto 5002501 to 100031001 to 200042001 to 30005Over 30006.” Then the IS 436 goes on to describe the procedure to reduce a gross sample into a sample for a lab test etc. in great detail, and speaks about the minimum weight of a gross sample being 75 Kg so far as “Coal, small” is concerned. 17. Clearly the samples drawn by the Inspector in the present case, have been drawn contrary to the express provisions of IS 436. On this count also, the samples being drawn not in accordance with law, test reports based on the same cannot be looked at. 18. The Tribunal’s judgment has proceeded on the basis that even though the samples were drawn contrary to law, the appellants would be estopped because their representative was present when the samples were drawn and they did not object immediately. This is a completely perverse finding both on fact and law. On fact, it has been more than amply proved that no representative of the appellant was, in fact, present at the time the Customs Inspector took the samples. Shri K.M. Jani who was allegedly present not only stated that he did not represent the Clearing Agent of the appellants in that he was not their employee but also stated that he was not present when the samples were taken. In fact, therefore, there was no representative of the appellants when the samples were taken. In law equally the Tribunal ought to have realized that there can be no estoppel against law. If the law requires that something be done in a particular manner, it must be done in that manner, and if not done in that manner has no existence in the eye of law at all. The Customs Authorities are not absolved from following the law depending upon the acts of a particular assessee. Something that is illegal cannot convert itself into something legal by the act of a third person. 19. | 1[ds]14. In our opinion, the expressionobviously means that the proper officer must have good reason to subject imported goods to a chemical or other tests. And, on the facts of the present case, it is clear that where the importer has furnished all the necessary documents to support the fact that the ash content in the coking coal imported is less than 12%, the proper officer must, when questioned, state that, at the very least, the documents produced do not inspire confidence for some good prima facie reason. In the present case, as has been noted above, the Revenue has never stated thatcertificate of quality ought to be rejected or is defective in any manner. This being the case, it is clear that the entire chemical analysis of the imported goods done by the Department was ultra vires Section 18(b) of the Customs Act.Clearly the samples drawn by the Inspector in the present case, have been drawn contrary to the express provisions of IS 436. On this count also, the samples being drawn not in accordance with law, test reports based on the same cannot be lookeds judgment has proceeded on the basis that even though the samples were drawn contrary to law, the appellants would be estopped because their representative was present when the samples were drawn and they did not object immediately. This is a completely perverse finding both on fact and law. On fact, it has been more than amply proved that no representative of the appellant was, in fact, present at the time the Customs Inspector took the samples. Shri K.M. Jani who was allegedly present not only stated that he did not represent the Clearing Agent of the appellants in that he was not their employee but also stated that he was not present when the samples were taken. In fact, therefore, there was no representative of the appellants when the samples were taken. In law equally the Tribunal ought to have realized that there can be no estoppel against law. If the law requires that something be done in a particular manner, it must be done in that manner, and if not done in that manner has no existence in the eye of law at all. The Customs Authorities are not absolved from following the law depending upon the acts of a particular assessee. Something that is illegal cannot convert itself into something legal by the act of a third person. | 1 | 3,523 | 454 | ### 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:
where the importer has furnished all the necessary documents to support the fact that the ash content in the coking coal imported is less than 12%, the proper officer must, when questioned, state that, at the very least, the documents produced do not inspire confidence for some good prima facie reason. In the present case, as has been noted above, the Revenue has never stated that CASCO’s certificate of quality ought to be rejected or is defective in any manner. This being the case, it is clear that the entire chemical analysis of the imported goods done by the Department was ultra vires Section 18(b) of the Customs Act. 15. Statutes often use expressions such as “deems it necessary”, “reason to believe” etc. Suffice it to say that these expressions have been held not to mean the subjective satisfaction of the officer concerned. Such power given to the concerned officer is not an arbitrary power and has to be exercised in accordance with the restraints imposed by law. That this is a well settled position of law is clear from the following judgments. See: Rohtas Industries Ltd. v. S.D. Agarwal, (1969) 3 S.C.R. 108 at 129. To similar effect is the judgment in Sheo Nath Singh v. Appellate Assistant Commissioner of Income Tax, Calcutta, (1972) 1 SCR 175 at 182. In that case it was held as under: “…There can be no manner of doubt that the words “reason to believe” suggest that the belief must be that of an honest and reasonable person based upon reasonable grounds and that the Income Tax Officer may act on direct or circumstantial evidence but not on mere suspicion, gossip or rumour. The Income Tax Officer would be acting without jurisdiction if the reason for his belief that the conditions are satisfied does not exist or is not material or relevant to the belief required by the section. The Court can always examine this aspect though the declaration or sufficiency of the reasons for the belief cannot be investigated by the Court.” See also Bar Council of Maharashtra v. M.V. Dabholkar, [1976] 2 S.C.R. 48 at 51. N. Nagendra Rao & Co. v. State of A.P. (1994) 6 SCC 205 at 216. 16. The admitted position on record is that the samples drawn were not drawn in accordance with law and were drawn with no regard whatsoever to IS 436. That IS 436 would apply to the facts of the present case is made clear by our judgment reported in Bombay Oil Industries (P) Ltd. v. Union of India, 1995 (77) E.L.T. 32 (S.C.), where this Court held following Union of India v. Delhi Cloth & General Mills Co. Ltd., 1963 Suppl. (1) SCR 586, that if the method of testing of any item of Central Excise tariff is not mentioned, then the Indian Standard Institution’s method should be applied. That this would apply to the Customs Act as well. IS 436 lays down:- ““5. SAMPLING FROM SHIPS DURING LOADING OR UNLOADING5.1 Sub-lots – For the purpose of sampling, the entire quantity of coal in a ship shall be divided into a suitable number of sub-lots of approximately equal weight as specified in Table 1.5.1.1 A gross sample shall be drawn from each of the sub-lots and shall be kept separately so that there will be as many gross samples as the number of sub-lots into which the lot has been divided.5.2. Sampling of coal from ships shall be carried out, as far as practicable, when coal is in motion. If it is taken on a conveyer, the gross sample shall be collected as per the procedure laid down in Table 3. If not, the gross samples may be drawn during loading or unloading of the ship. For this purpose, the number of increments to be taken shall be governed by the weight of the gross sample and the weight of increment as specified in Table 3 for various size groups of coal.”TABLE 1 NUMBER OF SUB-LOTS/GROSS SAMPLES(Clauses 0.3.4.1 and 3.1)Weight of the Lot (Metric Tonnes)No. of sub-Lots/Gross SamplesUpto 5002501 to 100031001 to 200042001 to 30005Over 30006.” Then the IS 436 goes on to describe the procedure to reduce a gross sample into a sample for a lab test etc. in great detail, and speaks about the minimum weight of a gross sample being 75 Kg so far as “Coal, small” is concerned. 17. Clearly the samples drawn by the Inspector in the present case, have been drawn contrary to the express provisions of IS 436. On this count also, the samples being drawn not in accordance with law, test reports based on the same cannot be looked at. 18. The Tribunal’s judgment has proceeded on the basis that even though the samples were drawn contrary to law, the appellants would be estopped because their representative was present when the samples were drawn and they did not object immediately. This is a completely perverse finding both on fact and law. On fact, it has been more than amply proved that no representative of the appellant was, in fact, present at the time the Customs Inspector took the samples. Shri K.M. Jani who was allegedly present not only stated that he did not represent the Clearing Agent of the appellants in that he was not their employee but also stated that he was not present when the samples were taken. In fact, therefore, there was no representative of the appellants when the samples were taken. In law equally the Tribunal ought to have realized that there can be no estoppel against law. If the law requires that something be done in a particular manner, it must be done in that manner, and if not done in that manner has no existence in the eye of law at all. The Customs Authorities are not absolved from following the law depending upon the acts of a particular assessee. Something that is illegal cannot convert itself into something legal by the act of a third person. 19.
### Response:
1
### Explanation:
14. In our opinion, the expressionobviously means that the proper officer must have good reason to subject imported goods to a chemical or other tests. And, on the facts of the present case, it is clear that where the importer has furnished all the necessary documents to support the fact that the ash content in the coking coal imported is less than 12%, the proper officer must, when questioned, state that, at the very least, the documents produced do not inspire confidence for some good prima facie reason. In the present case, as has been noted above, the Revenue has never stated thatcertificate of quality ought to be rejected or is defective in any manner. This being the case, it is clear that the entire chemical analysis of the imported goods done by the Department was ultra vires Section 18(b) of the Customs Act.Clearly the samples drawn by the Inspector in the present case, have been drawn contrary to the express provisions of IS 436. On this count also, the samples being drawn not in accordance with law, test reports based on the same cannot be lookeds judgment has proceeded on the basis that even though the samples were drawn contrary to law, the appellants would be estopped because their representative was present when the samples were drawn and they did not object immediately. This is a completely perverse finding both on fact and law. On fact, it has been more than amply proved that no representative of the appellant was, in fact, present at the time the Customs Inspector took the samples. Shri K.M. Jani who was allegedly present not only stated that he did not represent the Clearing Agent of the appellants in that he was not their employee but also stated that he was not present when the samples were taken. In fact, therefore, there was no representative of the appellants when the samples were taken. In law equally the Tribunal ought to have realized that there can be no estoppel against law. If the law requires that something be done in a particular manner, it must be done in that manner, and if not done in that manner has no existence in the eye of law at all. The Customs Authorities are not absolved from following the law depending upon the acts of a particular assessee. Something that is illegal cannot convert itself into something legal by the act of a third person.
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Reserve Bank Of India Vs. N. C. Paliwal & Others | find any substance in them. They are based on a misconception of the true nature of the process involved in integration of non-clerical with clerical services. There was, as already pointed out above, a non-clerical cadre in each Department of the Reserve Bank and it was decided by the-Reserve Bank that the non-clerical cadres in all the Departments should be integrated with the clerical cadre. With that end in view, the Combined Seniority Scheme gave an option to all employees in non-clerical cadres to be transferred to posts in the clerical cadre, but in the interest of efficiency, prescribed a qualification that only those employees in non-clerical cadres would be entitled to be transferred who are either graduates or have passed both parts of Institute of Bankers Examination. Now, when the employees from non-clerical cadres are admitted in the clerical cadre, some rule would have to be made for determining their seniority vis-a-vis those in the clerical cadre. They would have to be fitted into the clerical cadre and for that purpose, some rule would have to be devised for determining how they shall rank in seniority. The Combined Seniority Scheme adopted the rule that for determining the seniority of non-clerical staff who exercised the option and were admitted in the clerical cadre, one-third of their total non-clerical service "until 7th May, 1972 or the date of acquiring qualification" should be taken into account. This was the manner in which the Combined Seniority Scheme sought to bring about integration of non clerical with. clerical services in the several departments of the Bank.Now, the first question which arises for consideration is whether the Reserve Bank violated the constitutional principle of equality in bringing about integration of non-clerical with clerical services. We fail to see how integration of different cadres into one cadre can be said to involve any violation of the equality clause. It is now well settled, as a result of the decision of this Court in Kishori Mohanlal Bakshi v. Union of India (A.I.R. 1962 S.C. 1139) that Article 16 a fortiori also Article 14 do not forbid the creation of different cadres for government service. And if that be so, equally these two Articles cannot stand in the way of the State integrating different cadres into one cadre. It is entirely a matter for the State to decide whether to have several different cadres or one integrated cadre in its services. That is a matter of policy which does not attract the applicability of the equality clause. The integration of non-clerical with clerical services sought to be effectuated by the Combined Seniority Scheme cannot in the circumstances be assailed as violative of the constitutional principle of equality.10. Then we come to the question of the rule of seniority adopted by the Combined Seniority Scheme. Now there can be no doubt that it is open to the State to lay down any rule which it thinks appropriate for determining seniority in service and it is not competent to the Court to strike down such rule on the ground that in its opinion another rule would have been better or more appropriate. The only enquiry which the Court can make is whether the rule laid down by the State is arbitrary and irrational so that it results in inequality of opportunity amongst employees belonging to the same class. Now, here, employees from non-clerical cadres were being absorbe d in the clerical cadre and, therefore, a rule for determining their seniority vis-a-vis those already in the clerical cadre had to be devised. Obviously, if the non-clerical service rendered by the employees from non-clerical cadres were wholly ignored, it would have been most unjust to them. Equally, it would have been unjust to employees in the clerical cadre, if the entire non-clerical service of those coming from non-clerical cadres were taken into account, for non-clerical service cannot be equated with clerical service and the two cannot be treated on the same footing. Reserve Bank, therefore, decided that one-third of the non-clerical service rendered by employees coming from non-clerical cadres should be taken into account for the purpose of determining seniority. This rule attempted to strike a just balance between the conflicting claims of non-clerical and clerical staff and it cannot be condemned as arbitrary or discriminatory. Vide: Anand Parkash Saksena v. Union of India.([1968] 2 S.C.R. 611, 622.)The last contention of the petitioners was that seniority is a civil right and the State cannot interfere with it to the prejudice of an employee without giving an opportunity to him to be heard and since the Combined Seniority Scheme adversely affected the seniority of the petitioners in the clerical cadre without giving them an opportunity to represent against it, it was void and inoperative. There are two answers to this contention and each is, in our opinion, fatal. In the first place, we do not find from the judgment of the High Court that this contention was at any time advanced before the High Court and, in the circumstances, we do not think it would be fight to permit it to be raised for the first time before this Court. Secondly, even if this contention were allowed to be raised, we do not think it can be sustained. Here, there was no question of any existing seniority being disturbed by change in the rule of seniority. The problem was of fitting into the clerical cadre employees coming from non-clerical cadres and for that purpose, a new rule was required to be made which would determine the seniority of these new entrants vis-a-vis those already in the clerical cadre. Such rule did not affect seniority and hence there could be no question of giving the petitioners an opportunity to make representation against it.11. These were the only contentions urged before us against the constitutional validity of the Combined Seniority Scheme and since there is no substance in them, we think that the High Court was in error in striking down the Combined Seniority Scheme. | 1[ds]This was the anomalous and unjust result brought about by the Combined Seniority Scheme and that, according to the petitioners, introduced a serious infirmity. This argument, we are afraid, is more an argument of hardship than of law and we do not think we can accept it.When the petitioners opted to be transferred to the Specialised Departments under the Optee Scheme of 1965, they obviously did so as they thought that they would have quicker chances of promotion in the Specialised Department than in the General Departments. But it appears that before their turn for promotion as Grade I Clerks in the Specialised Departments could come, some vacancies occurred in the cadre of Grade I Clerks in the General Departments and naturally they were filled up by promotion of Grade II Clerks in the General Departments. Some of these Grade II Clerks who were promoted were junior to the petitioners, but they got an opportunity for promotion as the petitioners went out of the General Departments by exercising the option to be transferred to the Specialised Departments. This was a wholly fortuitous possibly not anticipated by the petitioners or perhaps the petitioners might have thought that they would have an advantage in the matter subsequent promotions to posts higher than Grade I Clerks. Be that as it may, the fact remains that this was the position which obtained at the date when the Combined Seniority Scheme was introduced by the Reserveis now well settled, as a result of the decision of this Court in Kishori Mohanlal Bakshi v. Union of India (A.I.R. 1962 S.C. 1139) that Article 16 a fortiori also Article 14 do not forbid the creation of different cadres for government service. And if that be so, equally these two Articles cannot stand in the way of the State integrating different cadres into one cadre. It is entirely a matter for the State to decide whether to have several different cadres or one integrated cadre in its services. That is a matter of policy which does not attract the applicability of the equality clause. The integration of non-clerical with clerical services sought to be effectuated by the Combined Seniority Scheme cannot in the circumstances be assailed as violative of the constitutional principle ofonly enquiry which the Court can make is whether the rule laid down by the State is arbitrary and irrational so that it results in inequality of opportunity amongst employees belonging to the same class. Now, here, employees from non-clerical cadres were being absorbe d in the clerical cadre and, therefore, a rule for determining their seniority vis-a-vis those already in the clerical cadre had to be devised. Obviously, if the non-clerical service rendered by the employees from non-clerical cadres were wholly ignored, it would have been most unjust to them. Equally, it would have been unjust to employees in the clerical cadre, if the entire non-clerical service of those coming from non-clerical cadres were taken into account, for non-clerical service cannot be equated with clerical service and the two cannot be treated on the same footing. Reserve Bank, therefore, decided that one-third of the non-clerical service rendered by employees coming from non-clerical cadres should be taken into account for the purpose of determining seniority. This rule attempted to strike a just balance between the conflicting claims of non-clerical and clerical staff and it cannot be condemned as arbitrary or discriminatory. Vide: Anand Parkash Saksena v. Union of India.([1968] 2 S.C.R. 611, 622.)The last contention of the petitioners was that seniority is a civil right and the State cannot interfere with it to the prejudice of an employee without giving an opportunity to him to be heard and since the Combined Seniority Scheme adversely affected the seniority of the petitioners in the clerical cadre without giving them an opportunity to represent against it, it was void and inoperative. There are two answers to this contention and each is, in our opinion, fatal. In the first place, we do not find from the judgment of the High Court that this contention was at any time advanced before the High Court and, in the circumstances, we do not think it would be fight to permit it to be raised for the first time before this Court. Secondly, even if this contention were allowed to be raised, we do not think it can be sustained. Here, there was no question of any existing seniority being disturbed by change in the rule of seniority. The problem was of fitting into the clerical cadre employees coming from non-clerical cadres and for that purpose, a new rule was required to be made which would determine the seniority of these new entrants vis-a-vis those already in the clerical cadre. Such rule did not affect seniority and hence there could be no question of giving the petitioners an opportunity to make representation againstwere the only contentions urged before us against the constitutional validity of the Combined Seniority Scheme and since there is no substance in them, we think that the High Court was in error in striking down the Combined Seniority Scheme. | 1 | 8,068 | 926 | ### Instruction:
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find any substance in them. They are based on a misconception of the true nature of the process involved in integration of non-clerical with clerical services. There was, as already pointed out above, a non-clerical cadre in each Department of the Reserve Bank and it was decided by the-Reserve Bank that the non-clerical cadres in all the Departments should be integrated with the clerical cadre. With that end in view, the Combined Seniority Scheme gave an option to all employees in non-clerical cadres to be transferred to posts in the clerical cadre, but in the interest of efficiency, prescribed a qualification that only those employees in non-clerical cadres would be entitled to be transferred who are either graduates or have passed both parts of Institute of Bankers Examination. Now, when the employees from non-clerical cadres are admitted in the clerical cadre, some rule would have to be made for determining their seniority vis-a-vis those in the clerical cadre. They would have to be fitted into the clerical cadre and for that purpose, some rule would have to be devised for determining how they shall rank in seniority. The Combined Seniority Scheme adopted the rule that for determining the seniority of non-clerical staff who exercised the option and were admitted in the clerical cadre, one-third of their total non-clerical service "until 7th May, 1972 or the date of acquiring qualification" should be taken into account. This was the manner in which the Combined Seniority Scheme sought to bring about integration of non clerical with. clerical services in the several departments of the Bank.Now, the first question which arises for consideration is whether the Reserve Bank violated the constitutional principle of equality in bringing about integration of non-clerical with clerical services. We fail to see how integration of different cadres into one cadre can be said to involve any violation of the equality clause. It is now well settled, as a result of the decision of this Court in Kishori Mohanlal Bakshi v. Union of India (A.I.R. 1962 S.C. 1139) that Article 16 a fortiori also Article 14 do not forbid the creation of different cadres for government service. And if that be so, equally these two Articles cannot stand in the way of the State integrating different cadres into one cadre. It is entirely a matter for the State to decide whether to have several different cadres or one integrated cadre in its services. That is a matter of policy which does not attract the applicability of the equality clause. The integration of non-clerical with clerical services sought to be effectuated by the Combined Seniority Scheme cannot in the circumstances be assailed as violative of the constitutional principle of equality.10. Then we come to the question of the rule of seniority adopted by the Combined Seniority Scheme. Now there can be no doubt that it is open to the State to lay down any rule which it thinks appropriate for determining seniority in service and it is not competent to the Court to strike down such rule on the ground that in its opinion another rule would have been better or more appropriate. The only enquiry which the Court can make is whether the rule laid down by the State is arbitrary and irrational so that it results in inequality of opportunity amongst employees belonging to the same class. Now, here, employees from non-clerical cadres were being absorbe d in the clerical cadre and, therefore, a rule for determining their seniority vis-a-vis those already in the clerical cadre had to be devised. Obviously, if the non-clerical service rendered by the employees from non-clerical cadres were wholly ignored, it would have been most unjust to them. Equally, it would have been unjust to employees in the clerical cadre, if the entire non-clerical service of those coming from non-clerical cadres were taken into account, for non-clerical service cannot be equated with clerical service and the two cannot be treated on the same footing. Reserve Bank, therefore, decided that one-third of the non-clerical service rendered by employees coming from non-clerical cadres should be taken into account for the purpose of determining seniority. This rule attempted to strike a just balance between the conflicting claims of non-clerical and clerical staff and it cannot be condemned as arbitrary or discriminatory. Vide: Anand Parkash Saksena v. Union of India.([1968] 2 S.C.R. 611, 622.)The last contention of the petitioners was that seniority is a civil right and the State cannot interfere with it to the prejudice of an employee without giving an opportunity to him to be heard and since the Combined Seniority Scheme adversely affected the seniority of the petitioners in the clerical cadre without giving them an opportunity to represent against it, it was void and inoperative. There are two answers to this contention and each is, in our opinion, fatal. In the first place, we do not find from the judgment of the High Court that this contention was at any time advanced before the High Court and, in the circumstances, we do not think it would be fight to permit it to be raised for the first time before this Court. Secondly, even if this contention were allowed to be raised, we do not think it can be sustained. Here, there was no question of any existing seniority being disturbed by change in the rule of seniority. The problem was of fitting into the clerical cadre employees coming from non-clerical cadres and for that purpose, a new rule was required to be made which would determine the seniority of these new entrants vis-a-vis those already in the clerical cadre. Such rule did not affect seniority and hence there could be no question of giving the petitioners an opportunity to make representation against it.11. These were the only contentions urged before us against the constitutional validity of the Combined Seniority Scheme and since there is no substance in them, we think that the High Court was in error in striking down the Combined Seniority Scheme.
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This was the anomalous and unjust result brought about by the Combined Seniority Scheme and that, according to the petitioners, introduced a serious infirmity. This argument, we are afraid, is more an argument of hardship than of law and we do not think we can accept it.When the petitioners opted to be transferred to the Specialised Departments under the Optee Scheme of 1965, they obviously did so as they thought that they would have quicker chances of promotion in the Specialised Department than in the General Departments. But it appears that before their turn for promotion as Grade I Clerks in the Specialised Departments could come, some vacancies occurred in the cadre of Grade I Clerks in the General Departments and naturally they were filled up by promotion of Grade II Clerks in the General Departments. Some of these Grade II Clerks who were promoted were junior to the petitioners, but they got an opportunity for promotion as the petitioners went out of the General Departments by exercising the option to be transferred to the Specialised Departments. This was a wholly fortuitous possibly not anticipated by the petitioners or perhaps the petitioners might have thought that they would have an advantage in the matter subsequent promotions to posts higher than Grade I Clerks. Be that as it may, the fact remains that this was the position which obtained at the date when the Combined Seniority Scheme was introduced by the Reserveis now well settled, as a result of the decision of this Court in Kishori Mohanlal Bakshi v. Union of India (A.I.R. 1962 S.C. 1139) that Article 16 a fortiori also Article 14 do not forbid the creation of different cadres for government service. And if that be so, equally these two Articles cannot stand in the way of the State integrating different cadres into one cadre. It is entirely a matter for the State to decide whether to have several different cadres or one integrated cadre in its services. That is a matter of policy which does not attract the applicability of the equality clause. The integration of non-clerical with clerical services sought to be effectuated by the Combined Seniority Scheme cannot in the circumstances be assailed as violative of the constitutional principle ofonly enquiry which the Court can make is whether the rule laid down by the State is arbitrary and irrational so that it results in inequality of opportunity amongst employees belonging to the same class. Now, here, employees from non-clerical cadres were being absorbe d in the clerical cadre and, therefore, a rule for determining their seniority vis-a-vis those already in the clerical cadre had to be devised. Obviously, if the non-clerical service rendered by the employees from non-clerical cadres were wholly ignored, it would have been most unjust to them. Equally, it would have been unjust to employees in the clerical cadre, if the entire non-clerical service of those coming from non-clerical cadres were taken into account, for non-clerical service cannot be equated with clerical service and the two cannot be treated on the same footing. Reserve Bank, therefore, decided that one-third of the non-clerical service rendered by employees coming from non-clerical cadres should be taken into account for the purpose of determining seniority. This rule attempted to strike a just balance between the conflicting claims of non-clerical and clerical staff and it cannot be condemned as arbitrary or discriminatory. Vide: Anand Parkash Saksena v. Union of India.([1968] 2 S.C.R. 611, 622.)The last contention of the petitioners was that seniority is a civil right and the State cannot interfere with it to the prejudice of an employee without giving an opportunity to him to be heard and since the Combined Seniority Scheme adversely affected the seniority of the petitioners in the clerical cadre without giving them an opportunity to represent against it, it was void and inoperative. There are two answers to this contention and each is, in our opinion, fatal. In the first place, we do not find from the judgment of the High Court that this contention was at any time advanced before the High Court and, in the circumstances, we do not think it would be fight to permit it to be raised for the first time before this Court. Secondly, even if this contention were allowed to be raised, we do not think it can be sustained. Here, there was no question of any existing seniority being disturbed by change in the rule of seniority. The problem was of fitting into the clerical cadre employees coming from non-clerical cadres and for that purpose, a new rule was required to be made which would determine the seniority of these new entrants vis-a-vis those already in the clerical cadre. Such rule did not affect seniority and hence there could be no question of giving the petitioners an opportunity to make representation againstwere the only contentions urged before us against the constitutional validity of the Combined Seniority Scheme and since there is no substance in them, we think that the High Court was in error in striking down the Combined Seniority Scheme.
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BHARAT SANCHAR NIGAM LTD Vs. SRI DEO KUMAR RAI @ DEO KUMAR RAY | 1998 were erroneously taken into account to compute the requirement of 240 days service in 12 calendar months. 17. The Review application filed by the appellant to challenge the incorrect conclusion of the Tribunal and the High Court viz-a-viz the finding given by the Committee was summarily brushed aside. Moreover, although it was pointed out that the finding is contrary to the material on record, the same was disregarded with the observation that both the Tribunal and the High Court had considered the Report and granted relief to the applicant. The Review petition accordingly came to be dismissed on 4.6.2019. 18. The Committee as noted earlier had clearly recorded that the respondent has completed maximum 38 days in 12 calendar months during 1.1.1995 to 31.12.1995 and as such the applicant is not entitled to grant of temporary status as per the provisions of the Casual Labourers (Grant of Temporary Status and Regularization) Scheme of the Department of Telecommunications, 1989. Although this categorical finding of the Committee was noted both by the Tribunal as also by the High Court, regularization was surprisingly ordered for the respondent. For the contrary finding, the Tribunal did not make any inquiry or record any evidence, in terms of the remand order dated 19.3.2013 of the High Court in the earlier round. It is therefore seen that the conclusion is drawn without any material foundation. 19. In the above circumstances, we are of the considered opinion that the conclusion drawn by the High Court and by the Tribunal favouring the respondent is contrary to the factual finding recorded by the Committee on 29.8.2005. The Committee Report also discloses that the Applicant had failed to produce records in original, to support his claim. The Committee further noted that certificates were issued by unauthorised persons and the authenticity of such documents have not been established. 20. At this stage, it is apposite to extract Clause 5(i) of the 1989 Scheme which prescribed the requirements for conferring temporary status to casual workers. 5. Temporary Status (i) Temporary status would be conferred on all the casual labourers currently employed and who have rendered a continuous service of atleast one year out of which they must have been engaged o work for a period of 240 days (206 days in case of offices observing five days week) such casual labourers will be designated as Temporary Mazdoor. The above clause makes it clear that the Applicant was required to have been engaged for 240 days in a given calendar year. The Committees findings showed that the respondent had served for a maximum of 38 days in a calendar year and was ineligible. 21. The Tribunal in its order (25.8.2015) has relied upon the judgement in Uma Devi (supra) to consider the service period during 1989 to 1998, to compute 240 days of engagement. However, this manner of considering eligibility does not gain support from the ratio in Uma Devi. To understand this, we benefit by reading the opinion of Justice P.K. Balasubramanyan, who speaking for the Constitution Bench, made the following observation on the issue of regularisation of irregularly appointed workmen as a one time measure, 53. ...There may be cases where irregular appointments (not illegal appointments) as explained in S.V. Narayanappa [(1967) 1 SCR 128 : AIR 1967 SC 1071 ] , R.N. Nanjundappa [(1972) 1 SCC 409 : (1972) 2 SCR 799 ] and B.N. Nagarajan [(1979) 4 SCC 507 : 1980 SCC (L&S) 4 : (1979) 3 SCR 937 ] and referred to in para 15 above, of duly qualified persons in duly sanctioned vacant posts might have been made and the employees have continued to work for ten years or more but without the intervention of orders of the courts or of tribunals. The question of regularisation of the services of such employees may have to be considered on merits in the light of the principles settled by this Court in the cases abovereferred to and in the light of this judgment. In that context, the Union of India, the State Governments and their instrumentalities should take steps to regularise as a one-time measure, the services of such irregularly appointed, who have worked for ten years or more in duly sanctioned posts but not under cover of orders of the courts or of tribunals and should further ensure that regular recruitments are undertaken to fill those vacant sanctioned posts that require to be filled up, in cases where temporary employees or daily wagers are being now employed. The process must be set in motion within six months from this date. We also clarify that regularisation, if any already made, but not sub judice, need not be reopened based on this judgment, but there should be no further bypassing of the constitutional requirement and regularising or making permanent, those not duly appointed as per the constitutional scheme. 22. The above ratio as is seen, was concerned with irregular appointments, which issue however is not very relevant in this matter. Furthermore, the ratio does not lay down a ten-year service yardstick for determining the eligibility of casual workers, as has been understood by the Tribunal. As such, the period of engagement spreading across several calendar years (and not one year as mandated under the Scheme) could not have been accepted by treating the gaps in service over those years, as artificial breaks. This manner of computation is inconsistent with the diktat of Uma Devi as well as the prescribed criteria governing the Respondent. It is also seen that the Tribunal in its order (22.01.2010), while dismissing the regularisation claim of the respondent amongst other applicants, had noted the admission therein that they had not satisfied the requirement of engagement of 240 days in any year. It was finally held that the applicants had failed to establish any infirmity in the Committees findings. For the sake of completion, we may note that the above order of the Tribunal was interfered with and remanded by the High Court, as was previously mentioned. | 1[ds]16. In order to secure the benefit of the 1989 Scheme, it was necessary for the respondent to establish that he satisfied the eligibility criteria prescribed under the Scheme and had worked for at least 240 days in 12 months. To resolve the factual controversy, the High Court in its earlier round while remanding the matter, directed the Tribunal to record evidence. However, the Tribunals order dated 25.8.2015 shows that the only basis for concluding in favour of the respondent was the Report/proceedings of the Committee dated 29.8.2005. The Committee however upon verification of the Records concluded that the respondent has completed maximum 38 days in 12 calendar months during 1.1.1995 to 31.12.1995 and as such he is disentitled for the temporary status under the Scheme. Yet, by misreading the specific recording of the Committee and without any basis for a contrary view, the Tribunal cryptically observed that the applicant was made to work with artificial breaks during 1989 to 1998 and on that basis, relief was granted to the respondent. But the Tribunal never recorded any evidence to determine the factual controversy and instead respondents service during 10 years from 1989 to 1998 were erroneously taken into account to compute the requirement of 240 days service in 12 calendar months.17. The Review application filed by the appellant to challenge the incorrect conclusion of the Tribunal and the High Court viz-a-viz the finding given by the Committee was summarily brushed aside. Moreover, although it was pointed out that the finding is contrary to the material on record, the same was disregarded with the observation that both the Tribunal and the High Court had considered the Report and granted relief to the applicant. The Review petition accordingly came to be dismissed on 4.6.2019.18. The Committee as noted earlier had clearly recorded that the respondent has completed maximum 38 days in 12 calendar months during 1.1.1995 to 31.12.1995 and as such the applicant is not entitled to grant of temporary status as per the provisions of the Casual Labourers (Grant of Temporary Status and Regularization) Scheme of the Department of Telecommunications, 1989. Although this categorical finding of the Committee was noted both by the Tribunal as also by the High Court, regularization was surprisingly ordered for the respondent. For the contrary finding, the Tribunal did not make any inquiry or record any evidence, in terms of the remand order dated 19.3.2013 of the High Court in the earlier round. It is therefore seen that the conclusion is drawn without any material foundation.19. In the above circumstances, we are of the considered opinion that the conclusion drawn by the High Court and by the Tribunal favouring the respondent is contrary to the factual finding recorded by the Committee on 29.8.2005. The Committee Report also discloses that the Applicant had failed to produce records in original, to support his claim. The Committee further noted that certificates were issued by unauthorised persons and the authenticity of such documents have not been established.The above clause makes it clear that the Applicant was required to have been engaged for 240 days in a given calendar year. The Committees findings showed that the respondent had served for a maximum of 38 days in a calendar year and was ineligible.21. The Tribunal in its order (25.8.2015) has relied upon the judgement in Uma Devi (supra) to consider the service period during 1989 to 1998, to compute 240 days of engagement. However, this manner of considering eligibility does not gain support from the ratio in Uma Devi. To understand this, we benefit by reading the opinion of Justice P.K. Balasubramanyan, who speaking for the Constitution Bench, made the following observation on the issue of regularisation of irregularly appointed workmen as a one time measure,53. ...There may be cases where irregular appointments (not illegal appointments) as explained in S.V. Narayanappa [(1967) 1 SCR 128 : AIR 1967 SC 1071 ] , R.N. Nanjundappa [(1972) 1 SCC 409 : (1972) 2 SCR 799 ] and B.N. Nagarajan [(1979) 4 SCC 507 : 1980 SCC (L&S) 4 : (1979) 3 SCR 937 ] and referred to in para 15 above, of duly qualified persons in duly sanctioned vacant posts might have been made and the employees have continued to work for ten years or more but without the intervention of orders of the courts or of tribunals. The question of regularisation of the services of such employees may have to be considered on merits in the light of the principles settled by this Court in the cases abovereferred to and in the light of this judgment. In that context, the Union of India, the State Governments and their instrumentalities should take steps to regularise as a one-time measure, the services of such irregularly appointed, who have worked for ten years or more in duly sanctioned posts but not under cover of orders of the courts or of tribunals and should further ensure that regular recruitments are undertaken to fill those vacant sanctioned posts that require to be filled up, in cases where temporary employees or daily wagers are being now employed. The process must be set in motion within six months from this date. We also clarify that regularisation, if any already made, but not sub judice, need not be reopened based on this judgment, but there should be no further bypassing of the constitutional requirement and regularising or making permanent, those not duly appointed as per the constitutional scheme.22. The above ratio as is seen, was concerned with irregular appointments, which issue however is not very relevant in this matter. Furthermore, the ratio does not lay down a ten-year service yardstick for determining the eligibility of casual workers, as has been understood by the Tribunal. As such, the period of engagement spreading across several calendar years (and not one year as mandated under the Scheme) could not have been accepted by treating the gaps in service over those years, as artificial breaks. This manner of computation is inconsistent with the diktat of Uma Devi as well as the prescribed criteria governing the Respondent. It is also seen that the Tribunal in its order (22.01.2010), while dismissing the regularisation claim of the respondent amongst other applicants, had noted the admission therein that they had not satisfied the requirement of engagement of 240 days in any year. It was finally held that the applicants had failed to establish any infirmity in the Committees findings. For the sake of completion, we may note that the above order of the Tribunal was interfered with and remanded by the High Court, as was previously mentioned. | 1 | 3,022 | 1,210 | ### Instruction:
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1998 were erroneously taken into account to compute the requirement of 240 days service in 12 calendar months. 17. The Review application filed by the appellant to challenge the incorrect conclusion of the Tribunal and the High Court viz-a-viz the finding given by the Committee was summarily brushed aside. Moreover, although it was pointed out that the finding is contrary to the material on record, the same was disregarded with the observation that both the Tribunal and the High Court had considered the Report and granted relief to the applicant. The Review petition accordingly came to be dismissed on 4.6.2019. 18. The Committee as noted earlier had clearly recorded that the respondent has completed maximum 38 days in 12 calendar months during 1.1.1995 to 31.12.1995 and as such the applicant is not entitled to grant of temporary status as per the provisions of the Casual Labourers (Grant of Temporary Status and Regularization) Scheme of the Department of Telecommunications, 1989. Although this categorical finding of the Committee was noted both by the Tribunal as also by the High Court, regularization was surprisingly ordered for the respondent. For the contrary finding, the Tribunal did not make any inquiry or record any evidence, in terms of the remand order dated 19.3.2013 of the High Court in the earlier round. It is therefore seen that the conclusion is drawn without any material foundation. 19. In the above circumstances, we are of the considered opinion that the conclusion drawn by the High Court and by the Tribunal favouring the respondent is contrary to the factual finding recorded by the Committee on 29.8.2005. The Committee Report also discloses that the Applicant had failed to produce records in original, to support his claim. The Committee further noted that certificates were issued by unauthorised persons and the authenticity of such documents have not been established. 20. At this stage, it is apposite to extract Clause 5(i) of the 1989 Scheme which prescribed the requirements for conferring temporary status to casual workers. 5. Temporary Status (i) Temporary status would be conferred on all the casual labourers currently employed and who have rendered a continuous service of atleast one year out of which they must have been engaged o work for a period of 240 days (206 days in case of offices observing five days week) such casual labourers will be designated as Temporary Mazdoor. The above clause makes it clear that the Applicant was required to have been engaged for 240 days in a given calendar year. The Committees findings showed that the respondent had served for a maximum of 38 days in a calendar year and was ineligible. 21. The Tribunal in its order (25.8.2015) has relied upon the judgement in Uma Devi (supra) to consider the service period during 1989 to 1998, to compute 240 days of engagement. However, this manner of considering eligibility does not gain support from the ratio in Uma Devi. To understand this, we benefit by reading the opinion of Justice P.K. Balasubramanyan, who speaking for the Constitution Bench, made the following observation on the issue of regularisation of irregularly appointed workmen as a one time measure, 53. ...There may be cases where irregular appointments (not illegal appointments) as explained in S.V. Narayanappa [(1967) 1 SCR 128 : AIR 1967 SC 1071 ] , R.N. Nanjundappa [(1972) 1 SCC 409 : (1972) 2 SCR 799 ] and B.N. Nagarajan [(1979) 4 SCC 507 : 1980 SCC (L&S) 4 : (1979) 3 SCR 937 ] and referred to in para 15 above, of duly qualified persons in duly sanctioned vacant posts might have been made and the employees have continued to work for ten years or more but without the intervention of orders of the courts or of tribunals. The question of regularisation of the services of such employees may have to be considered on merits in the light of the principles settled by this Court in the cases abovereferred to and in the light of this judgment. In that context, the Union of India, the State Governments and their instrumentalities should take steps to regularise as a one-time measure, the services of such irregularly appointed, who have worked for ten years or more in duly sanctioned posts but not under cover of orders of the courts or of tribunals and should further ensure that regular recruitments are undertaken to fill those vacant sanctioned posts that require to be filled up, in cases where temporary employees or daily wagers are being now employed. The process must be set in motion within six months from this date. We also clarify that regularisation, if any already made, but not sub judice, need not be reopened based on this judgment, but there should be no further bypassing of the constitutional requirement and regularising or making permanent, those not duly appointed as per the constitutional scheme. 22. The above ratio as is seen, was concerned with irregular appointments, which issue however is not very relevant in this matter. Furthermore, the ratio does not lay down a ten-year service yardstick for determining the eligibility of casual workers, as has been understood by the Tribunal. As such, the period of engagement spreading across several calendar years (and not one year as mandated under the Scheme) could not have been accepted by treating the gaps in service over those years, as artificial breaks. This manner of computation is inconsistent with the diktat of Uma Devi as well as the prescribed criteria governing the Respondent. It is also seen that the Tribunal in its order (22.01.2010), while dismissing the regularisation claim of the respondent amongst other applicants, had noted the admission therein that they had not satisfied the requirement of engagement of 240 days in any year. It was finally held that the applicants had failed to establish any infirmity in the Committees findings. For the sake of completion, we may note that the above order of the Tribunal was interfered with and remanded by the High Court, as was previously mentioned.
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completed maximum 38 days in 12 calendar months during 1.1.1995 to 31.12.1995 and as such he is disentitled for the temporary status under the Scheme. Yet, by misreading the specific recording of the Committee and without any basis for a contrary view, the Tribunal cryptically observed that the applicant was made to work with artificial breaks during 1989 to 1998 and on that basis, relief was granted to the respondent. But the Tribunal never recorded any evidence to determine the factual controversy and instead respondents service during 10 years from 1989 to 1998 were erroneously taken into account to compute the requirement of 240 days service in 12 calendar months.17. The Review application filed by the appellant to challenge the incorrect conclusion of the Tribunal and the High Court viz-a-viz the finding given by the Committee was summarily brushed aside. Moreover, although it was pointed out that the finding is contrary to the material on record, the same was disregarded with the observation that both the Tribunal and the High Court had considered the Report and granted relief to the applicant. The Review petition accordingly came to be dismissed on 4.6.2019.18. The Committee as noted earlier had clearly recorded that the respondent has completed maximum 38 days in 12 calendar months during 1.1.1995 to 31.12.1995 and as such the applicant is not entitled to grant of temporary status as per the provisions of the Casual Labourers (Grant of Temporary Status and Regularization) Scheme of the Department of Telecommunications, 1989. Although this categorical finding of the Committee was noted both by the Tribunal as also by the High Court, regularization was surprisingly ordered for the respondent. For the contrary finding, the Tribunal did not make any inquiry or record any evidence, in terms of the remand order dated 19.3.2013 of the High Court in the earlier round. It is therefore seen that the conclusion is drawn without any material foundation.19. In the above circumstances, we are of the considered opinion that the conclusion drawn by the High Court and by the Tribunal favouring the respondent is contrary to the factual finding recorded by the Committee on 29.8.2005. The Committee Report also discloses that the Applicant had failed to produce records in original, to support his claim. The Committee further noted that certificates were issued by unauthorised persons and the authenticity of such documents have not been established.The above clause makes it clear that the Applicant was required to have been engaged for 240 days in a given calendar year. The Committees findings showed that the respondent had served for a maximum of 38 days in a calendar year and was ineligible.21. The Tribunal in its order (25.8.2015) has relied upon the judgement in Uma Devi (supra) to consider the service period during 1989 to 1998, to compute 240 days of engagement. However, this manner of considering eligibility does not gain support from the ratio in Uma Devi. To understand this, we benefit by reading the opinion of Justice P.K. Balasubramanyan, who speaking for the Constitution Bench, made the following observation on the issue of regularisation of irregularly appointed workmen as a one time measure,53. ...There may be cases where irregular appointments (not illegal appointments) as explained in S.V. Narayanappa [(1967) 1 SCR 128 : AIR 1967 SC 1071 ] , R.N. Nanjundappa [(1972) 1 SCC 409 : (1972) 2 SCR 799 ] and B.N. Nagarajan [(1979) 4 SCC 507 : 1980 SCC (L&S) 4 : (1979) 3 SCR 937 ] and referred to in para 15 above, of duly qualified persons in duly sanctioned vacant posts might have been made and the employees have continued to work for ten years or more but without the intervention of orders of the courts or of tribunals. The question of regularisation of the services of such employees may have to be considered on merits in the light of the principles settled by this Court in the cases abovereferred to and in the light of this judgment. In that context, the Union of India, the State Governments and their instrumentalities should take steps to regularise as a one-time measure, the services of such irregularly appointed, who have worked for ten years or more in duly sanctioned posts but not under cover of orders of the courts or of tribunals and should further ensure that regular recruitments are undertaken to fill those vacant sanctioned posts that require to be filled up, in cases where temporary employees or daily wagers are being now employed. The process must be set in motion within six months from this date. We also clarify that regularisation, if any already made, but not sub judice, need not be reopened based on this judgment, but there should be no further bypassing of the constitutional requirement and regularising or making permanent, those not duly appointed as per the constitutional scheme.22. The above ratio as is seen, was concerned with irregular appointments, which issue however is not very relevant in this matter. Furthermore, the ratio does not lay down a ten-year service yardstick for determining the eligibility of casual workers, as has been understood by the Tribunal. As such, the period of engagement spreading across several calendar years (and not one year as mandated under the Scheme) could not have been accepted by treating the gaps in service over those years, as artificial breaks. This manner of computation is inconsistent with the diktat of Uma Devi as well as the prescribed criteria governing the Respondent. It is also seen that the Tribunal in its order (22.01.2010), while dismissing the regularisation claim of the respondent amongst other applicants, had noted the admission therein that they had not satisfied the requirement of engagement of 240 days in any year. It was finally held that the applicants had failed to establish any infirmity in the Committees findings. For the sake of completion, we may note that the above order of the Tribunal was interfered with and remanded by the High Court, as was previously mentioned.
|
NATIONAL CO-OPERATIVE DEVELOPMENT CORPORATION Vs. COMMISSIONER OF INCOME TAX, DELHI-V | does not specify as to who should be the grantee; what should be amount to be granted. All that is prescribed is that the business of the appellant-Corporation is to provide loans or grants for the avowed object for which it has been set up. The decision with regard to who should get the grant is taken by the appellant-Corporation directly in the course of, and for the purpose of its business. Thus, the amount agreed to be given should be given as a loan or grant, or both is entirely at the business discretion of the appellant-Corporation. No grantee has a superior title to the funds. Hence, this is not a case of diversion of income by overriding title. 38. We may record here that income has to be determined on the principles of commercial accountancy. There is, thus, a distinction between real profits ascertained on principles of commercial accountancy. In the case of Poona Electric Supply Co. Ltd. v. CIT Bombay City (1965) 3 SCR 818 this Court has held that income tax is on the real income. In the case of a business, the profits must be arrived at on ordinary commercial principles. The scheme of the IT Act requires the determination of real income on the basis of ordinary commercial principles of accountancy. To determine the real income, permissible expenses are required to be set off. In this behalf, we may also usefully refer to the judgment in CIT, Gujarat v. S.C. Kothari (1972) 4 SCC 402 where the following principle was laid down: 6. …The tax collector cannot be heard to say that he will bring the gross receipts to tax. He can only tax profits of a trade or business. That cannot be done without deducting the losses and the legitimate expenses of the business... There is, thus, a clear distinction between deductions made for ascertaining real profits and thereafter distributions made out of profits. The distribution would be application of income. There is also a distinction between real profits ascertained on commercial principles and profits fixed by a statute for a specific purpose. Income tax is a tax on real income. 39. We may also note that even though in the own view of the appellant-Corporation for preceding years in question, it never claimed any such adjustments, but that of course does not preclude the right of the appellant-Corporation as they sought to make out a case of mistake at a subsequent date. 40. We may also note another statutory development. The Finance Act of 2003 added a provision in Section 36 of the IT Act as sub-clause (1) (xii) in the following terms: 36. Other deductions. – (1) The deductions provided for in the following clauses shall be allowed in respect of the matters dealt with therein, in computing the income referred to in section 28 – (i) to (xi) xxxx (xii) any expenditure (not being in the nature of capital expenditure) incurred by a corporation or a body corporate, by whatever name called, if, - (a) It is constituted or established by a Central, State or Provincial Act; (b) Such corporation or body corporate, having regard to the objects and purposes of the Act referred to in sub-clause (a), is notified by the Central Government in the Official Gazette for the purposes of this clause; and (c) The expenditure is incurred for the objects and purposes authorised by the Act under which it is constituted or established; xxx 41. The amendment has to be appreciated in the context of the Departmental Circular No.7/2003 dated 5.9.2003, which provides for deduction for expenditure incurred by entities established under any Central, State or Provincial Act. Entities that are created under an Act of Parliament have the basic object and function of carrying on developmental activities in the areas as specified in the said Acts. By the Finance Act, 2001 and the Finance Act, 2002, tax exemption of certain bodies set up through an Act of Parliament was withdrawn. Subsequent to the removal of the tax shield, a doubt has arisen that some of the activities having no profit motive being carried on by such entities cannot be said to be business and therefore, expenditure incurred on such developmental activities may not be allowed as a deduction when computing the income under the head profits and gains of business or profession. 42. The Finance Act, 2003, thus, inserted a new clause mentioned aforesaid so as to provide that an expenditure not being capital expenditure incurred by a corporation or body corporate, by whatever name called, constituted or established by a Central, State or Provincial Act for the objects and purposes authorised by such Act under which such corporation or body corporate was constituted or established, shall be allowed as a deduction in computing the income under the head profits and gains of business or profession. The amendment had been introduced into the Act with effect from 1.4.2002. (Chaturvedi & Pithisarias Income Tax Law, Volume 3, Sixth Edition (2014), Pg. 3310, published by LexisNexis). 43. The question, thus, arises whether prior to this amendment such expenses were not allowable under the prevailing tax regime for such entitles which were not exempt from tax. In the years prior to the amendment, as we are dealing with AY 1976-77 onwards, the tax jurisprudence has evolved on the basis of ordinary principles of commercial accountancy for determining the taxable income. Thus, prior to insertion of this sub-clause, such expenses would be permissible under the general Section 37(1) of the IT Act, which provides for deduction of permissible expenses on principles of commercial accountancy. Post amendment, such expenses get allowed under the specific section, viz. Section 36(1)(xii) after the amendment by the Finance Act, 2003. 44. We would, thus, like to conclude that we are unable to agree with the findings arrived at by the AO, ITAT and the High Court albeit for different reasons and concur with the view taken by the CIT(A) for the reasons set out hereinbefore. | 1[ds]In terms of Section 28 of the IT Act such profits and gains of any business or profession under the head D of Section 14 of the IT Act would be chargeable to income tax if the income is relatable to profits and gains of business or profession carried out by the assessee at any time during the previous year [Clause (i) of Section 28 of the IT Act]. Section 56 of the IT Act is in the nature of a residuary clause, i.e., if the income of every kind which is not to be excluded from total income under the IT Act would be chargeable under this head if it is not chargeable under Section 14 heads A to E.22. The aforesaid aspect did not form a part of the rationale of the view taken by the AO, but the CIT(A) opined that the grants made by the appellant-Corporation undisputedly fall within its authorised business activities and, thus, even the advancing of grants from the interest income would be a revenue expense as it had not resulted in acquisition of capital assets by the appellant-Corporation and, thus, would be adjustable under Section 37(1) of the IT Act. The ITAT, while reversing the order of the CIT(A), does not deal with this aspect but the impugned judgment of the High Court, once again, adverted to this aspect and came to the conclusion that the interest income would fall under head D of Section 14 of the IT Act and would not fall under the head of income from other sources under Section 56 of the IT Act.23. We are in agreement with this view taken by the High Court, as the only business of the appellant-Corporation is to receive funds and then to advance them as loans or grants. The interest income arose on account of the fund so received and it may not have been utilised for a certain period of time, being put in fixed deposits so that the amount does not lie idle. That the income generated was again applied to the disbursement of grants and loans. The income generated from interest is necessarily inter- linked to the business of the appellant-Corporation and would, thus, fall under the head of profits and gains of business or profession. There would, therefore, be no requirement of taking recourse to Section 56 of the IT Act for taxing the interest income under this residuary clause as income from other sources. In our view, to decide the question as to whether a particular source of income is business income, one would have to look to the notions of what is the business activity. The activity from which the income is derived must have a set purpose. The business activity of the appellant-Corporation is really that of an intermediary to lend money or give grants. Thus, the generation of interest income in support of this only business (not even primary) for a period of time when the funds are lying idle, and utilised for the same purpose would ultimately be taxable as business income. The fact that the appellant- Corporation does not carry on business activity for profit motive is not material as profit making is not an essential ingredient on account of self- imposed and innate restriction arising from the very statute which creates the appellant-Corporation and the very purpose for which the appellant- Corporation has been set up. Our view finds support from the judgment in The Sole Trustee, Lok Shikshana Trust v. The Commissioner of Income Tax, Mysore. (1976) 1 SCC 254. 25. The facts before us clearly set out that undoubtedly the amount received to be advanced as loans and grants by the appellant-Corporation from the Central Government are treated as capital receipts. In fact, if it was otherwise, they would have become taxable in the hands of the appellant-Corporation. Over this, there is no dispute. The line of argument on behalf of the appellant-Corporation was, however, predicated on a plea that assuming it to be so, the grants (and not loans) cannot be treated as a capital expenditure as neither any enduring advantage or benefit has accrued to the appellant-Corporation nor has any asset come into existence which belongs to or was owned by the appellant-Corporation. Thus, what may be a capital receipt in the hands of the appellant-Corporation may still be a revenue expenditure and it is in that context that the observations in Atherton v. British Insulated and Helsby Cables Ltd. (supra) referred to in Commissioner of Income Tax, Bombay v. Associated Cement Companies Ltd., Bombay (supra) were relied upon. The context was slightly different in those cases because if an expenditure was to bring into existence an asset or advantage for enduring benefit of the trade, it was opined that a case could be made out attributed not to revenue but to capital. In this case, of course, this proposition is really the reverse and advantage was sought to be taken of the aforesaid principle.27. No doubt the interest income is not directly received as a capital amount. It is actually generated by utilising the capital receipts when the fund is lying idle though the income so generated is then applied for the very objective for which the appellant-Corporation was set up, i.e., disbursement of grants and advancement of loans. The impugned judgment of the High Court appears to us to have dealt with both loans and grants, but the question of references framed, and which is a position accepted before us, is that the dispute related to only grants. It was not the appellant-Corporations case that the amounts advanced as loans, the same being payable with interest, could be adjusted as expenses against the business income generated by investing the amounts and consequently earning interest on the same. The argument was predicated on a reasoning that since the interest generated is treated as a business income, the grants made, which would never come back, should be adjustable as expenses against the same. In fact, to the extent grants were returned back, the CIT(A) did not allow the entire deduction as claimed for but only did so qua the amount which was disbursed as grant and never received back.28. To decide the aforesaid question, it would be appropriate to advert to the very purpose for which the statutory appellant-Corporation has been set up. It is in this context that we have set out the functions of the appellant-Corporation in para 3 hereinabove, i.e., to advance loans or grant subsidies to State Governments for financing cooperative societies, etc. There is no other function which the appellant-Corporation carries out nor does it generate any funds of its own from any other business. In a sense the role is confined to receiving funds from the Central Government and appropriately advancing the same as loans, grants or subsidies. In a larger canvas the appellant-Corporation plans, promotes and makes financial programmes for the benefit of these societies and other entities to which such loans, grants and subsidies are advanced. We may say it is really in the nature of an intermediary with expertise in the financial sector to carry forward the intent of the Central Government to assist State Governments, Cooperative Societies, etc. Since this is the business activity, that is what has persuaded us to opine that the income generated in the form of interest on the unutilised capital is in the nature of business income. The objectives are wholly socio-economic and the amounts received including grants come with a prior stipulation for the funds received to be passed on to the downstream entities. This is the reason they have been treated as capital receipts. However, we are unable to opine that since this is a pass-through entity on the basis of a statutory obligation, the advancement of loans and grants is not a business activity, when really it is the only business activity. Once it is business activity, the interest generated on the unutilised capital has been held by us to be the business income.29. We are unable to accept the contention of the Revenue Department that merely because the interest income received has merged with the monies in the common Fund it loses its revenue character and becomes a capital receipt. This line of argument is inconsistent with the position where interest money is received, it is held to be of revenue character, and chargeable to tax under the head Profits and Gains of Business or Profession. This amount while lying in the same fund cannot acquire the character of a capital receipt. The interest having been treated as revenue receipt on which taxes are paid, it must continue to retain the character of revenue receipt. If the nature of receipt is treated as capital receipt then consistent with the aforesaid approach, no taxes would have been payable on the amount. The corollary is that all expenses incurred in connection with the business are deductible.30. The legal position, which emerges is that if an assessee carries on business, all that is required to be seen is whether any outlay constitutes an expenditure for the purpose of business as used in Section 37(1) of the IT Act.The disbursement of grants has already been held to be the core business of the appellant-Corporation. Once that requirement is satisfied, the expenditure incurred in the course of business and for the purpose of business, would naturally be an allowable deduction under Section 37(1) of the IT Act. The source of funds from which the expenditure is made is not relevant. It is also not really relevant as to whether the expenditure is incurred out of the corpus funds or from the interest income earned by the appellant-Corporation.31. We are also unable to accept the contention of the respondent that the payouts constitute a mere application of income, which does not tantamount to expenditure. The disbursement of non-refundable grants is an integral part of business of the appellant-Corporation as contemplated under Section 13(1) of the NCDC Act and, thus, is for the purpose of its business. The purpose is direct; merely because the grants benefit a third party, it would not render the disbursement as application of income and not expenditure.32. In support of the aforesaid view, we may rely on the judgment of this Court in CIT Kerala, Ernakulam v. The Travancore Sugar & Chemicals Ltd., (1973) 3 SCC 274 ( more specifically para 23) which gave an occasion to examine the issue whether the discharge of an obligation paid to the Government was application of income or diversion of profits. This Court came to the conclusion that from any point of view, whether as revenue expenditure or as an overriding charge of the profit-making apparatus or laid out and expended wholly and exclusively for the purposes of trade, this was an allowable revenue expenditure.33. The logical conclusion is that every application of income towards business objective of the appellant-Corporation is a business expenditure and nothing else. The endeavour of the Revenue Department to rely on the judgment in the Sitaldas Tirathdas case (supra) is not appreciable since that was a case dealing with the obligation of an individual who was compelled to apply a portion of his income for the maintenance of persons whom he was under a personal and legal obligation to maintain. The IT Act does not permit any deduction from the total income in such circumstances.34. We also find really no force in the submission of the Revenue Department that the direct nexus of monies given as outright grants from the taxable interest income cannot be distinctly identified. This is a question of fact. The plea of the respondents is based on a pure conjecture.In fact, CIT(A) allowed the business expenditure only to a certain amount on the basis of the facts and figures as emerged from the balance sheet. This is a burden which was to be discharged by the appellant-Corporation and the CIT(A) had been satisfied with the nexus of interest income with the disbursement of grants made, as having been established.35. We may also note another principle to test the proposition, i.e., of diversion by overriding title. This principle was originally set out in the Sitaldas Tirathdas case (supra) and the principle has been since followed. If a portion of income arising out of a corpus held by the assessee consumed for the purposes of meeting some recurring expenditure arising out of an obligation imposed on the assessee by a contract or by statute or by own volition or by the law of the land and if the income before it reaches the hands of the assessee is already diverted away by a superior title the portion passed or liable to be passed on is not the income of the assessee. The test, thus, is what amounts to application of income and what is the diversion by overriding title. The principle, in a sense would apply, if the Act or the Rules framed thereunder or other binding directions bind the institution to spend the interest income on disbursal of grants.36. The appellant-Corporation has devised a procedure of sanction/disbursal of its system for institutional development of cooperatives. The appellant-Corporation actually supplements the efforts of the State Governments. Thus, State Governments recommend proposals of individual societies/projects to the appellant-Corporation in a prescribed systematic format and that society may also avail direct funding of projects under various schemes of assistance on fulfillment of stipulated conditions. The formal sanction is thereafter conveyed to the State Government or the Society as the case may be and the release of funds depends on progress of implementation and is on a non- reimbursement basis. Part of the funds are advanced as loans ranging from a period 3 to 8 years with rate of interest varying from time to time, while another part is applied to grants, which are not received back naturally. This modus-operandi has also been set out as a stand of the appellant-Corporation as contained in para 5 of the assessment order.37. The NCDC Act does not specify as to who should be the grantee; what should be amount to be granted. All that is prescribed is that the business of the appellant-Corporation is to provide loans or grants for the avowed object for which it has been set up. The decision with regard to who should get the grant is taken by the appellant-Corporation directly in the course of, and for the purpose of its business. Thus, the amount agreed to be given should be given as a loan or grant, or both is entirely at the business discretion of the appellant-Corporation. No grantee has a superior title to the funds. Hence, this is not a case of diversion of income by overriding title.39. We may also note that even though in the own view of the appellant-Corporation for preceding years in question, it never claimed any such adjustments, but that of course does not preclude the right of the appellant-Corporation as they sought to make out a case of mistake at a subsequent date.The Finance Act of 2003 added a provision in Section 36 of the IT Act as sub-clause (1) (xii)41. The amendment has to be appreciated in the context of the Departmental Circular No.7/2003 dated 5.9.2003, which provides for deduction for expenditure incurred by entities established under any Central, State or Provincial Act. Entities that are created under an Act of Parliament have the basic object and function of carrying on developmental activities in the areas as specified in the said Acts. By the Finance Act, 2001 and the Finance Act, 2002, tax exemption of certain bodies set up through an Act of Parliament was withdrawn. Subsequent to the removal of the tax shield, a doubt has arisen that some of the activities having no profit motive being carried on by such entities cannot be said to be business and therefore, expenditure incurred on such developmental activities may not be allowed as a deduction when computing the income under the head profits and gains of business or profession.42. The Finance Act, 2003, thus, inserted a new clause mentioned aforesaid so as to provide that an expenditure not being capital expenditure incurred by a corporation or body corporate, by whatever name called, constituted or established by a Central, State or Provincial Act for the objects and purposes authorised by such Act under which such corporation or body corporate was constituted or established, shall be allowed as a deduction in computing the income under the head profits and gains of business or profession. The amendment had been introduced into the Act with effect from 1.4.2002. (Chaturvedi & Pithisarias Income Tax Law, Volume 3, Sixth Edition (2014), Pg. 3310, published by LexisNexis).In the years prior to the amendment, as we are dealing with AY 1976-77 onwards, the tax jurisprudence has evolved on the basis of ordinary principles of commercial accountancy for determining the taxable income. Thus, prior to insertion of this sub-clause, such expenses would be permissible under the general Section 37(1) of the IT Act, which provides for deduction of permissible expenses on principles of commercial accountancy. Post amendment, such expenses get allowed under the specific section, viz. Section 36(1)(xii) after the amendment by the Finance Act, 2003.44. We would, thus, like to conclude that we are unable to agree with the findings arrived at by the AO, ITAT and the High Court albeit for different reasons and concur with the view taken by the CIT(A) for the reasons set out hereinbefore.4. The Central Government and the State authorities have been repeatedly emphasising that they have evolved a litigation policy. Our experience is that it is observed more in breach. The approach is one of bringing everything to the highest level before this Court, so that there is no responsibility in the decision-making process – an unfortunate situation which creates unnecessary burden on the judicial system. This aspect has also been commented upon in a judgment of this Court in Union of India & Ors. v. Pirthwi Singh & Ors., (2018) 16 SCC 363 albeit between the Government and the private parties, where the question of law had been settled and yet the appeal was filed only to invite a dismissal. The object appears to be that a certificate for dismissal is obtained from the highest court so that a quietus could be put to the matter in the Government Departments. Undoubtedly, this is complete wastage of judicial time and in various orders of this Court it has been categorized as certificate cases, i.e., the purpose of which is only to obtain this certificate of dismissal.5. The 126 th Law Commission of India Report titled Government and Public Sector Undertaking Litigation Policy and Strategies debated the Government versus Government matters which weighed heavily on the time of the Courts as well as the public exchequer. This was as far back as in 1988. It was only in the year 2010 that the National Litigation Policy (for short NLP) was formulated with the aim of reducing litigation and making the Government an efficient and responsible litigant. Five (5) years later it reportedly saw a revision to increase its efficacy, but it has hardly made an impact. In the year 2018, the Central Government gave its approval towards strengthening the resolution of commercial disputes of Central Public Sector Enterprises (for short CPSEs)/ Port Trusts inter se, as well as between CPSEs and other Government Departments/Organisations. The aim was and is to put in place a mechanism within the Government for promoting a speedy resolution of disputes of this kind, however it excluded disputes relating to Railways, Income Tax, Customs and Excise Departments. It has now been made applicable to all disputes other than those related to taxation matters. This was pursuant an order passed in The Commissioner of Income Tax (Exemptions) v. National Interest Exchange of India SLP (C) Diary No. 35567 of 2019 by a bench of which one of us (Sanjay Kishan Kaul, J.) was a part.6. Insofar as non-taxation matters are concerned, the Administrative Mechanism for Resolution of CPSEs Disputes was conceptualised to replace the Permanent Machinery of Arbitration and to promote equity through collective efforts to resolve disputes. It has a two-tiered structure.7. At the first level, commercial disputes will be referred to the Committee comprising Secretaries of the Administrative Ministries/Departments to which the disputing parties belong and the Secretary, Department of Legal Affairs. In case the two disputing parties belong to the same Ministry/Department, the Committee will comprise Secretary of Administrative Ministry/Department concerned; the Secretary, Department of Legal Affairs and the Secretary, Department of Public Enterprises. If a dispute is between a CPSE and a State Government Department/Organisation, the Committee will comprise of the Secretary of the Ministry Department of the Union to which the CPSE belongs, the Secretary, Department of Legal Affairs and the Chief Secretary of the State concerned. Such disputes are ideally to be resolved at the first level itself within a time schedule of three (3) months, and in the eventuality of them remaining unresolved, the same may be referred to the Cabinet Secretary at the second level, whose decision will be final and binding on all concerned.8. We are of the opinion that one of the main impediments to such a resolution, plainly speaking, is that the bureaucrats are reluctant to accept responsibility of taking such decisions, apprehending that at some future date their decision may be called into question and they may face consequences post retirement. In order to make the system function effectively, it may be appropriate to have a Committee of legal experts presided by a retired Judge to give their imprimatur to the settlement so that such apprehensions do not come in the way of arriving at a settlement. It is our pious hope that a serious thought would be given to the aspect of dispute resolution amicably, more so in the post-COVID period.9. In most countries, mediation has proved to be an efficacious remedy and here we are talking about mediation inter se the Government authorities or Government departments. India is now a signatory to the Singapore Convention on Mediation and we understand that a serious thought is being given to bring forth a comprehensive legislation to institutionalise mediation, in furtherance of this function to which India has committed itself.11. In our opinion, a vibrant system of Advance Ruling can go a long way in reducing taxation litigation. This is not only true of these kinds of disputes but even disputes between the taxation department and private persons, who are more than willing to comply with the law of the land but find some ambiguity. Instead of first filing a return and then facing consequences from the Department because of a different perception which the Department may have, an Advance Ruling System can facilitate not only such a resolution, but also avoid the tiers of litigation which such cases go through as in the present case. In fact, before further discussing this Advance Ruling System, we can unhesitatingly say that, at least, for CPSEs and Government authorities, there would be no question of taking this matter further once an Advance Ruling is delivered, and even in case of private persons, the scope of any further challenge is completely narrowed down.s. The scope of the transactions on which an advance ruling can be sought from the AAR has gradually increased to now include both residents and non-residents, who can seek the same for issues having a substantial tax impact. Chapter XIX-B of the IT Act deals with advance rulings and it has been defined in Section 245N(a) of the IT Act. These rulings are binding both on the Income Tax Department and the applicant, and while there is no statutory right to appeal, the Supreme Court has held in Columbia Sportswear Company v. Director of Income Tax Bangalore (2012) 11 SCC 224 that a challenge an advance ruling first lies before the High Court, and subsequently before the Supreme Court. The advance ruling may be reversed in the event a substantial question of general public importance arises or a similar question is already pending before the Supreme Court for adjudication.13. The ground level situation is that this methodology has proved to be illusionary because there is an increasing number of applications pending before the AAR due to its low disposal rate and contrary to the expectation that a ruling would be given in six (6) months (as per Section 245R(6) of the IT Act), the average time taken is stated to be reaching around four (4) years! (See Deloitte Report on Advance Rulings in India: Delivering Greater Tax Certainty (Deloitte Tax Policy Paper 5, 2019)) There is obviously lack of adequate numbers of presiding officers to deal with the volume of cases. Interestingly, the primary reason for this is the large number of vacancies and delayed appointments of Members to the AAR. (ibid.) In view of the time taken, the very purpose of AAR is defeated, resulting in the mechanism being used infrequently as is evident from the ever- increasing tax related litigation.14. We may notice a significant development in Section 245N of the IT Act. It was through Notification No.11456 dated 3.8.2000 that public sector companies were added to the definition of applicant, and in 2014, it was made applicable to a resident who had undertaken one or more transactions of the value of Rs. 100 crore or more.15. Insofar as a resident is concerned, the limit is so high that it cannot provide any solace to any individual, and we do believe that it is time to reconsider and reduce the ceiling limit, more so in terms of the recent announcement stated to be in furtherance of a tax friendly face-less regime!19. The aim of any properly framed advance ruling system ought to be a dialogue between taxpayers and revenue authorities to fulfil the mutually beneficial purpose for taxpayers and revenue authorities of bolstering tax compliance and boosting tax morale. This mechanism should not become another stage in the litigation process.22. In the end before parting we may refer to the legal legend Mr. Nani A. Palkhivala, who while addressing a letter of congratulations to Mr. Soli J. Sorabjee on attaining his appointment as the Attorney General on 11.12.1989 referred to the greatest glory of Attorney General as not to win cases for the Government but to ensure that justice is done to the people. In this behalf, he refers to the motto of the Department of Justice in the United States carved out into the Rotunda of the Attorney General Office:The United States wins its case whenever justice is done to one of its citizens in the courts.The Indian citizenry is entitled to a hope that the aforesaid is what must be the objective of Government litigation, which should prevail even within the Indian legal system. In the words of Martin Luther King, Jr., We must accept finite disappointment, but never lose infinite hope.16. We may refer to the international scenario where there has been an incremental shift towards mature tax regimes adopting advance ruling mechanisms. The increase in global trade puts the rulings system at the centre-stage of a robust international tax cooperation regime. The Organisation for Economic Cooperation and Development (for short OECD) lists advance rulings as one of the indicators to assess trade facilitation policies, making it an aspirational international best practice standard. For example, Australia and New Zealand have a robust system of advance rulings wherein the decisions (which are public rulings affecting a large number of taxpayers) are given teeth by being made binding on the revenue authorities. New Zealand has gone a step further and innovated status rulings under which a taxpayer can apply to the Commissioner for a ruling on how a change in the law impacts an existing ruling.17. In the United States, there is a mechanism for the Treasury to authorise guidance in the form of revenue rulings, procedures and notices. The mechanism again, has been bolstered by subsequent practice and interpretations of the United States courts, where rulings have indicated that taxpayers may be penalised if they act inconsistently with legal interpretations set out in the revenue rulings, procedures or notices.18. Tax transparency has been a hallmark trait of the Swedish legal system. Swedish law requires public disclosure of ex ante tax administration such as advance rulings. Both the taxpayer as well as the Swedish Tax Agency can request an advance tax ruling, these rulings are published without information identifying the taxpayer that requested them. The Skatterättsnämnden, or the Council for Advance Tax Rulings is the Swedish Government agency which is vested with this power. The advance ruling system has played a crucial role in Swedens position as a country with one of the highest tax compliance rates in the world.19. The aim of any properly framed advance ruling system ought to be a dialogue between taxpayers and revenue authorities to fulfil the mutually beneficial purpose for taxpayers and revenue authorities of bolstering tax compliance and boosting tax morale. This mechanism should not become another stage in the litigation process.21. We have been persuaded to write two postscripts on account of the backbreaking dockets which are ever increasing and as a move towards a trust between the Tax Department and the assessee, and we hope that both the aspects meet consideration at an appropriate level.38. We may record here that income has to be determined on the principles of commercial accountancy. There is, thus, a distinction between real profits ascertained on principles of commercial accountancy. In the case of Poona Electric Supply Co. Ltd. v. CIT Bombay City (1965) 3 SCR 818 this Court has held that income tax is on the real income. In the case of a business, the profits must be arrived at on ordinary commercial principles. The scheme of the IT Act requires the determination of real income on the basis of ordinary commercial principles of accountancy. To determine the real income, permissible expenses are required to be set off. In this behalf, we may also usefully refer to the judgment in CIT, Gujarat v. S.C. Kothari (1972) 4 SCC 402 where the following principle was laid down:6. …The tax collector cannot be heard to say that he will bring the gross receipts to tax. He can only tax profits of a trade or business. That cannot be done without deducting the losses and the legitimate expenses of the business...There is, thus, a clear distinction between deductions made for ascertaining real profits and thereafter distributions made out of profits. The distribution would be application of income. There is also a distinction between real profits ascertained on commercial principles and profits fixed by a statute for a specific purpose. Income tax is a tax on real income. | 1 | 7,892 | 5,641 | ### 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:
does not specify as to who should be the grantee; what should be amount to be granted. All that is prescribed is that the business of the appellant-Corporation is to provide loans or grants for the avowed object for which it has been set up. The decision with regard to who should get the grant is taken by the appellant-Corporation directly in the course of, and for the purpose of its business. Thus, the amount agreed to be given should be given as a loan or grant, or both is entirely at the business discretion of the appellant-Corporation. No grantee has a superior title to the funds. Hence, this is not a case of diversion of income by overriding title. 38. We may record here that income has to be determined on the principles of commercial accountancy. There is, thus, a distinction between real profits ascertained on principles of commercial accountancy. In the case of Poona Electric Supply Co. Ltd. v. CIT Bombay City (1965) 3 SCR 818 this Court has held that income tax is on the real income. In the case of a business, the profits must be arrived at on ordinary commercial principles. The scheme of the IT Act requires the determination of real income on the basis of ordinary commercial principles of accountancy. To determine the real income, permissible expenses are required to be set off. In this behalf, we may also usefully refer to the judgment in CIT, Gujarat v. S.C. Kothari (1972) 4 SCC 402 where the following principle was laid down: 6. …The tax collector cannot be heard to say that he will bring the gross receipts to tax. He can only tax profits of a trade or business. That cannot be done without deducting the losses and the legitimate expenses of the business... There is, thus, a clear distinction between deductions made for ascertaining real profits and thereafter distributions made out of profits. The distribution would be application of income. There is also a distinction between real profits ascertained on commercial principles and profits fixed by a statute for a specific purpose. Income tax is a tax on real income. 39. We may also note that even though in the own view of the appellant-Corporation for preceding years in question, it never claimed any such adjustments, but that of course does not preclude the right of the appellant-Corporation as they sought to make out a case of mistake at a subsequent date. 40. We may also note another statutory development. The Finance Act of 2003 added a provision in Section 36 of the IT Act as sub-clause (1) (xii) in the following terms: 36. Other deductions. – (1) The deductions provided for in the following clauses shall be allowed in respect of the matters dealt with therein, in computing the income referred to in section 28 – (i) to (xi) xxxx (xii) any expenditure (not being in the nature of capital expenditure) incurred by a corporation or a body corporate, by whatever name called, if, - (a) It is constituted or established by a Central, State or Provincial Act; (b) Such corporation or body corporate, having regard to the objects and purposes of the Act referred to in sub-clause (a), is notified by the Central Government in the Official Gazette for the purposes of this clause; and (c) The expenditure is incurred for the objects and purposes authorised by the Act under which it is constituted or established; xxx 41. The amendment has to be appreciated in the context of the Departmental Circular No.7/2003 dated 5.9.2003, which provides for deduction for expenditure incurred by entities established under any Central, State or Provincial Act. Entities that are created under an Act of Parliament have the basic object and function of carrying on developmental activities in the areas as specified in the said Acts. By the Finance Act, 2001 and the Finance Act, 2002, tax exemption of certain bodies set up through an Act of Parliament was withdrawn. Subsequent to the removal of the tax shield, a doubt has arisen that some of the activities having no profit motive being carried on by such entities cannot be said to be business and therefore, expenditure incurred on such developmental activities may not be allowed as a deduction when computing the income under the head profits and gains of business or profession. 42. The Finance Act, 2003, thus, inserted a new clause mentioned aforesaid so as to provide that an expenditure not being capital expenditure incurred by a corporation or body corporate, by whatever name called, constituted or established by a Central, State or Provincial Act for the objects and purposes authorised by such Act under which such corporation or body corporate was constituted or established, shall be allowed as a deduction in computing the income under the head profits and gains of business or profession. The amendment had been introduced into the Act with effect from 1.4.2002. (Chaturvedi & Pithisarias Income Tax Law, Volume 3, Sixth Edition (2014), Pg. 3310, published by LexisNexis). 43. The question, thus, arises whether prior to this amendment such expenses were not allowable under the prevailing tax regime for such entitles which were not exempt from tax. In the years prior to the amendment, as we are dealing with AY 1976-77 onwards, the tax jurisprudence has evolved on the basis of ordinary principles of commercial accountancy for determining the taxable income. Thus, prior to insertion of this sub-clause, such expenses would be permissible under the general Section 37(1) of the IT Act, which provides for deduction of permissible expenses on principles of commercial accountancy. Post amendment, such expenses get allowed under the specific section, viz. Section 36(1)(xii) after the amendment by the Finance Act, 2003. 44. We would, thus, like to conclude that we are unable to agree with the findings arrived at by the AO, ITAT and the High Court albeit for different reasons and concur with the view taken by the CIT(A) for the reasons set out hereinbefore.
### Response:
1
### Explanation:
reason for this is the large number of vacancies and delayed appointments of Members to the AAR. (ibid.) In view of the time taken, the very purpose of AAR is defeated, resulting in the mechanism being used infrequently as is evident from the ever- increasing tax related litigation.14. We may notice a significant development in Section 245N of the IT Act. It was through Notification No.11456 dated 3.8.2000 that public sector companies were added to the definition of applicant, and in 2014, it was made applicable to a resident who had undertaken one or more transactions of the value of Rs. 100 crore or more.15. Insofar as a resident is concerned, the limit is so high that it cannot provide any solace to any individual, and we do believe that it is time to reconsider and reduce the ceiling limit, more so in terms of the recent announcement stated to be in furtherance of a tax friendly face-less regime!19. The aim of any properly framed advance ruling system ought to be a dialogue between taxpayers and revenue authorities to fulfil the mutually beneficial purpose for taxpayers and revenue authorities of bolstering tax compliance and boosting tax morale. This mechanism should not become another stage in the litigation process.22. In the end before parting we may refer to the legal legend Mr. Nani A. Palkhivala, who while addressing a letter of congratulations to Mr. Soli J. Sorabjee on attaining his appointment as the Attorney General on 11.12.1989 referred to the greatest glory of Attorney General as not to win cases for the Government but to ensure that justice is done to the people. In this behalf, he refers to the motto of the Department of Justice in the United States carved out into the Rotunda of the Attorney General Office:The United States wins its case whenever justice is done to one of its citizens in the courts.The Indian citizenry is entitled to a hope that the aforesaid is what must be the objective of Government litigation, which should prevail even within the Indian legal system. In the words of Martin Luther King, Jr., We must accept finite disappointment, but never lose infinite hope.16. We may refer to the international scenario where there has been an incremental shift towards mature tax regimes adopting advance ruling mechanisms. The increase in global trade puts the rulings system at the centre-stage of a robust international tax cooperation regime. The Organisation for Economic Cooperation and Development (for short OECD) lists advance rulings as one of the indicators to assess trade facilitation policies, making it an aspirational international best practice standard. For example, Australia and New Zealand have a robust system of advance rulings wherein the decisions (which are public rulings affecting a large number of taxpayers) are given teeth by being made binding on the revenue authorities. New Zealand has gone a step further and innovated status rulings under which a taxpayer can apply to the Commissioner for a ruling on how a change in the law impacts an existing ruling.17. In the United States, there is a mechanism for the Treasury to authorise guidance in the form of revenue rulings, procedures and notices. The mechanism again, has been bolstered by subsequent practice and interpretations of the United States courts, where rulings have indicated that taxpayers may be penalised if they act inconsistently with legal interpretations set out in the revenue rulings, procedures or notices.18. Tax transparency has been a hallmark trait of the Swedish legal system. Swedish law requires public disclosure of ex ante tax administration such as advance rulings. Both the taxpayer as well as the Swedish Tax Agency can request an advance tax ruling, these rulings are published without information identifying the taxpayer that requested them. The Skatterättsnämnden, or the Council for Advance Tax Rulings is the Swedish Government agency which is vested with this power. The advance ruling system has played a crucial role in Swedens position as a country with one of the highest tax compliance rates in the world.19. The aim of any properly framed advance ruling system ought to be a dialogue between taxpayers and revenue authorities to fulfil the mutually beneficial purpose for taxpayers and revenue authorities of bolstering tax compliance and boosting tax morale. This mechanism should not become another stage in the litigation process.21. We have been persuaded to write two postscripts on account of the backbreaking dockets which are ever increasing and as a move towards a trust between the Tax Department and the assessee, and we hope that both the aspects meet consideration at an appropriate level.38. We may record here that income has to be determined on the principles of commercial accountancy. There is, thus, a distinction between real profits ascertained on principles of commercial accountancy. In the case of Poona Electric Supply Co. Ltd. v. CIT Bombay City (1965) 3 SCR 818 this Court has held that income tax is on the real income. In the case of a business, the profits must be arrived at on ordinary commercial principles. The scheme of the IT Act requires the determination of real income on the basis of ordinary commercial principles of accountancy. To determine the real income, permissible expenses are required to be set off. In this behalf, we may also usefully refer to the judgment in CIT, Gujarat v. S.C. Kothari (1972) 4 SCC 402 where the following principle was laid down:6. …The tax collector cannot be heard to say that he will bring the gross receipts to tax. He can only tax profits of a trade or business. That cannot be done without deducting the losses and the legitimate expenses of the business...There is, thus, a clear distinction between deductions made for ascertaining real profits and thereafter distributions made out of profits. The distribution would be application of income. There is also a distinction between real profits ascertained on commercial principles and profits fixed by a statute for a specific purpose. Income tax is a tax on real income.
|
Agrl.Produce Mkt.Committee Vs. Ashok Harikuni & Anr Etc | such trading. This is similar, in a nature and form to what is being done now under the State Act through statutory functionaries. Thus none of these functions could be construed to be sovereign in nature or inalienable in character. 27. It is true various functionaries under this Act are creature of statute. But creation as such, by itself, cannot confer on it the status of performing inalienable functions of the State. The main controlling functions and power is conferred on the market committee whose constitution itself reveals, except one or two rest are all are elected members representing some on other class from the public. In fact, all governmental functions cannot be construed either primary or inalienable sovereign function. Hence even if some of the functionaries under the State Act could be said to be performing sovereign functions of the State Government that by itself would not make the dominant objects to be sovereign in nature or take the aforesaid Act out of the purview of the Central Act. 28. Thus merely an enterprise being statutory corporation, creature under a statute, would not take it outside the ambit of "industry" as defined under the Central Act. We do not find the present case falling under any exception laid down in the Bangalore Sewerage Board case (supra). The mere fact that some employees of the appellant are government servants would make no difference as the true test to find - has to be gathered from the dominant object for which functionaries are working. It cannot be doubted that the appellant is an undertaking performing its duties in a systematic and organised manner, regulating the marketing and trading of agricultural produce, rendering services to the community. In the present case, as we have recorded earlier, we are concerned only with those employees who are not government servants. Testing the dominant object as laid down in Bangalore Sewerage Board case (supra), we reach to inescapable conclusion that none of the activities of the Agriculture Produce Market Committee could be construed to be sovereign in nature. Hence we have no hesitation to hold that this corporation falls within the definition of "industry" under Section 2(j) of the Central Act.29. Section 2(a) of the Central Act defines `Appropriate Government in relation to any industrial disputes concerning any industry carried on by or under the authority of Central Government, or railway company etc. and refers to large number of corporations and corporate bodies which falls in the category of "industry". This indicates even Legislatures intends a very large arms of "industry", to include large number of enterprises to be industry to confer benefit to the employees working under it. In fact, several corporations conferred with statutory powers also curtails individual rights like, through levy of demurrages, detention charges in the warehousing corporation under the Warehouse Corporation Act; Regulation of entry into airport, ATC, levy and regulation of taxes and fees by the international airport authority. Assessment and levy of damages as well as penalties by authorities under the Employees State Insurance Act and Employees Provident Fund Act. Though each of the aforesaid corporations and statutory bodies are "industry". So one of the feeble submissions that curtailment of right of an individual could only be by the exercise of sovereign power has also no merit. 30. From the aforesaid catena of authorities, inalienability is one of the basic character of sovereignty. The Encyclopedia of the American Constitution with reference to "sovereignty" attempts to define sovereignty. It records : "Within the American regime the ultimate power and authority to alter or abolish the constitutions of government of State and Union resides only and inalienably with the people. If it be necessary or useful to use the term "sovereignty" in the sense of ultimate political power, then there is no sovereign in America but the people. Dennis J. Mahoney" ï7�3 Š31. Words and Phrases, Permanent Edition, Volume 39-A with reference to "sovereign power" records : "The "sovereign powers" of a Government include all the powers necessary to accomplish its legitimate ends and purposes. Such powers must exist in all practical governments. They are the incidents of sovereignty, of which a State cannot devest itself. Boggs v. Meree Min. Co., 14 Cal. 279, 309............In all governments of constitutional limitations "sovereign power" manifests itself in but three ways. By exercising the right of taxation; by the right of eminent domain; and through its police power. United States v. Douglas-Willan Sartoris Co., 22 p. 92, 96, 3 Wyo. 287." 32. So, sovereign function in the new sense may have very wide ramification but essentially sovereign functions are primary inalienable functions which only State could exercise. Thus, various functions of the State, may be ramifications of `sovereignty but they all cannot be construed as primary inalienable functions. Broadly it is taxation, eminent domain and police power which covers its field. It may cover its legislative functions, administration of law, eminent domain, maintenance of law and order, internal and external security, grant of pardon. So, the dichotomy between sovereign and non-sovereign function could be found by finding which of the functions of the State could be undertaken by any private person or body. The one which could be undertaken cannot be sovereign function. In a given case even in subject on which the State has the monopoly may also be non-sovereign in nature. Mere dealing in subject of monopoly of the State would not make any such enterprise sovereign in nature. Absence of profit making or mere quid pro would also make such enterprise to be outside the ambit of "industry" as also in State of Bombay and others case (supra).33. The last submission for the appellant is with reference to sub-section (3) of Section 59 of the said Act. The submission is, this excludes the application of the Central Act to the employees under the State Act. The reliance is placed on the following opening words of this sub-section (3) namely : "Notwithstanding anything contained in the Industrial Disputes Act, 1947." | 0[ds]21. In other words, it all depends on the nature of power and the manner of its exercise. What is approved to be "Sovereign" is defence of the country, raising armed forces, making peace or war, foreign affairs, power to acquire and retain territory. These are not amenable to the jurisdiction of ordinary civil Courts. The other functions of the State including welfare activity of State could not be construed as "sovereign" exercise of power. Hence, every governmental function need not be "sovereign". State activities are multifarious. From the primal sovereign power, which exclusively inalienably could be exercised by the Sovereign alone, which is not subject to challenge in any civil Court to all the welfare activities, which would be undertaken by any private person. So merely one is employee of statutory bodies would not take it outside the Central Act. If that be then Section 2(a) of the Central Act read with Schedule I gives large number of statutory bodies should have been excluded, which is not. Even if a statute confers on any statutory body, any function which would be construed to be "sovereign" in nature would not mean every other functions under the same statute to be also sovereign. The Court should examine the statute to severe (sever ?) one from the other by comprehensively examining various provisions of that statute. In interpreting any statute to find it is "industry" or not we have to find its pith and substance. The Central Act is enacted to maintain harmony between employer and employee which brings peace and amity in its functioning. This peace and amity should be the objective in the functioning of all enterprises. This is to the benefit of both, employer and employee. Misuse of rights and obligations by either or stretching it beyond permissible limits have to be dealt with within the framework of the law but endeavour should not be in all circumstances to exclude any enterprise from its ambit. That is why Courts have been defining "industry" in the widest permissible limits and "sovereign" functioning within its limited orbit.Thus merely an enterprise being statutory corporation, creature under a statute, would not take it outside the ambit of "industry" as defined under the Central Act. We do not find the present case falling under any exception laid down in the Bangalore Sewerage Board case (supra). The mere fact that some employees of the appellant are government servants would make no difference as the true test to find - has to be gathered from the dominant object for which functionaries are working. It cannot be doubted that the appellant is an undertaking performing its duties in a systematic and organised manner, regulating the marketing and trading of agricultural produce, rendering services to the community. In the present case, as we have recorded earlier, we are concerned only with those employees who are not government servants. Testing the dominant object as laid down in Bangalore Sewerage Board case (supra), we reach to inescapable conclusion that none of the activities of the Agriculture Produce Market Committee could be construed to be sovereign in nature. Hence we have no hesitation to hold that this corporation falls within the definition of "industry" under Section 2(j) of the Central Act.29. Section 2(a) of the Central Act defines `Appropriate Government in relation to any industrial disputes concerning any industry carried on by or under the authority of Central Government, or railway company etc. and refers to large number of corporations and corporate bodies which falls in the category of "industry". This indicates even Legislatures intends a very large arms of "industry", to include large number of enterprises to be industry to confer benefit to the employees working under it. In fact, several corporations conferred with statutory powers also curtails individual rights like, through levy of demurrages, detention charges in the warehousing corporation under the Warehouse Corporation Act; Regulation of entry into airport, ATC, levy and regulation of taxes and fees by the international airport authority. Assessment and levy of damages as well as penalties by authorities under the Employees State Insurance Act and Employees Provident Fund Act. Though each of the aforesaid corporations and statutory bodies are "industry". So one of the feeble submissions that curtailment of right of an individual could only be by the exercise of sovereign power has also no merit.So, sovereign function in the new sense may have very wide ramification but essentially sovereign functions are primary inalienable functions which only State could exercise. Thus, various functions of the State, may be ramifications of `sovereignty but they all cannot be construed as primary inalienable functions. Broadly it is taxation, eminent domain and police power which covers its field. It may cover its legislative functions, administration of law, eminent domain, maintenance of law and order, internal and external security, grant of pardon. So, the dichotomy between sovereign andfunction could be found by finding which of the functions of the State could be undertaken by any private person or body. The one which could be undertaken cannot be sovereign function. In a given case even in subject on which the State has the monopoly may also bein nature. Mere dealing in subject of monopoly of the State would not make any such enterprise sovereign in nature. Absence of profit making or mere quid pro would also make such enterprise to be outside the ambit of "industry" as also in State of Bombay and others case (supra).33. The last submission for the appellant is with reference to(3) of Section 59 of the said Act. The submission is, this excludes the application of the Central Act to the employees under the State Act.In view of the aforesaid settled legal principle the width of "industry" being of widest amplitude and testing it in the present case, in view of the preamble, Objects and Reasons and the scheme of the Act, theobject clearly being regulation and control of trading of agricultural produce, thusincluding its functionaries cannot be said to be performing functions which are sovereign in character. Most of its functions could be undertaken even by private persons. Thus the appellant would fall within the definition of "industry" under Section 2(j) of the Central Act. In view of this, we uphold that respondent employees are `workman under the Central Act as held by the Labour Court and confirmed by the High Court. The Labour Court has dealt with each individual case and came to the conclusion in favour ofwhich has also been confirmed by learned Single Judge and Division Bench of the High Court, which does not call for any interference | 0 | 8,840 | 1,251 | ### 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:
such trading. This is similar, in a nature and form to what is being done now under the State Act through statutory functionaries. Thus none of these functions could be construed to be sovereign in nature or inalienable in character. 27. It is true various functionaries under this Act are creature of statute. But creation as such, by itself, cannot confer on it the status of performing inalienable functions of the State. The main controlling functions and power is conferred on the market committee whose constitution itself reveals, except one or two rest are all are elected members representing some on other class from the public. In fact, all governmental functions cannot be construed either primary or inalienable sovereign function. Hence even if some of the functionaries under the State Act could be said to be performing sovereign functions of the State Government that by itself would not make the dominant objects to be sovereign in nature or take the aforesaid Act out of the purview of the Central Act. 28. Thus merely an enterprise being statutory corporation, creature under a statute, would not take it outside the ambit of "industry" as defined under the Central Act. We do not find the present case falling under any exception laid down in the Bangalore Sewerage Board case (supra). The mere fact that some employees of the appellant are government servants would make no difference as the true test to find - has to be gathered from the dominant object for which functionaries are working. It cannot be doubted that the appellant is an undertaking performing its duties in a systematic and organised manner, regulating the marketing and trading of agricultural produce, rendering services to the community. In the present case, as we have recorded earlier, we are concerned only with those employees who are not government servants. Testing the dominant object as laid down in Bangalore Sewerage Board case (supra), we reach to inescapable conclusion that none of the activities of the Agriculture Produce Market Committee could be construed to be sovereign in nature. Hence we have no hesitation to hold that this corporation falls within the definition of "industry" under Section 2(j) of the Central Act.29. Section 2(a) of the Central Act defines `Appropriate Government in relation to any industrial disputes concerning any industry carried on by or under the authority of Central Government, or railway company etc. and refers to large number of corporations and corporate bodies which falls in the category of "industry". This indicates even Legislatures intends a very large arms of "industry", to include large number of enterprises to be industry to confer benefit to the employees working under it. In fact, several corporations conferred with statutory powers also curtails individual rights like, through levy of demurrages, detention charges in the warehousing corporation under the Warehouse Corporation Act; Regulation of entry into airport, ATC, levy and regulation of taxes and fees by the international airport authority. Assessment and levy of damages as well as penalties by authorities under the Employees State Insurance Act and Employees Provident Fund Act. Though each of the aforesaid corporations and statutory bodies are "industry". So one of the feeble submissions that curtailment of right of an individual could only be by the exercise of sovereign power has also no merit. 30. From the aforesaid catena of authorities, inalienability is one of the basic character of sovereignty. The Encyclopedia of the American Constitution with reference to "sovereignty" attempts to define sovereignty. It records : "Within the American regime the ultimate power and authority to alter or abolish the constitutions of government of State and Union resides only and inalienably with the people. If it be necessary or useful to use the term "sovereignty" in the sense of ultimate political power, then there is no sovereign in America but the people. Dennis J. Mahoney" ï7�3 Š31. Words and Phrases, Permanent Edition, Volume 39-A with reference to "sovereign power" records : "The "sovereign powers" of a Government include all the powers necessary to accomplish its legitimate ends and purposes. Such powers must exist in all practical governments. They are the incidents of sovereignty, of which a State cannot devest itself. Boggs v. Meree Min. Co., 14 Cal. 279, 309............In all governments of constitutional limitations "sovereign power" manifests itself in but three ways. By exercising the right of taxation; by the right of eminent domain; and through its police power. United States v. Douglas-Willan Sartoris Co., 22 p. 92, 96, 3 Wyo. 287." 32. So, sovereign function in the new sense may have very wide ramification but essentially sovereign functions are primary inalienable functions which only State could exercise. Thus, various functions of the State, may be ramifications of `sovereignty but they all cannot be construed as primary inalienable functions. Broadly it is taxation, eminent domain and police power which covers its field. It may cover its legislative functions, administration of law, eminent domain, maintenance of law and order, internal and external security, grant of pardon. So, the dichotomy between sovereign and non-sovereign function could be found by finding which of the functions of the State could be undertaken by any private person or body. The one which could be undertaken cannot be sovereign function. In a given case even in subject on which the State has the monopoly may also be non-sovereign in nature. Mere dealing in subject of monopoly of the State would not make any such enterprise sovereign in nature. Absence of profit making or mere quid pro would also make such enterprise to be outside the ambit of "industry" as also in State of Bombay and others case (supra).33. The last submission for the appellant is with reference to sub-section (3) of Section 59 of the said Act. The submission is, this excludes the application of the Central Act to the employees under the State Act. The reliance is placed on the following opening words of this sub-section (3) namely : "Notwithstanding anything contained in the Industrial Disputes Act, 1947."
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by the Sovereign alone, which is not subject to challenge in any civil Court to all the welfare activities, which would be undertaken by any private person. So merely one is employee of statutory bodies would not take it outside the Central Act. If that be then Section 2(a) of the Central Act read with Schedule I gives large number of statutory bodies should have been excluded, which is not. Even if a statute confers on any statutory body, any function which would be construed to be "sovereign" in nature would not mean every other functions under the same statute to be also sovereign. The Court should examine the statute to severe (sever ?) one from the other by comprehensively examining various provisions of that statute. In interpreting any statute to find it is "industry" or not we have to find its pith and substance. The Central Act is enacted to maintain harmony between employer and employee which brings peace and amity in its functioning. This peace and amity should be the objective in the functioning of all enterprises. This is to the benefit of both, employer and employee. Misuse of rights and obligations by either or stretching it beyond permissible limits have to be dealt with within the framework of the law but endeavour should not be in all circumstances to exclude any enterprise from its ambit. That is why Courts have been defining "industry" in the widest permissible limits and "sovereign" functioning within its limited orbit.Thus merely an enterprise being statutory corporation, creature under a statute, would not take it outside the ambit of "industry" as defined under the Central Act. We do not find the present case falling under any exception laid down in the Bangalore Sewerage Board case (supra). The mere fact that some employees of the appellant are government servants would make no difference as the true test to find - has to be gathered from the dominant object for which functionaries are working. It cannot be doubted that the appellant is an undertaking performing its duties in a systematic and organised manner, regulating the marketing and trading of agricultural produce, rendering services to the community. In the present case, as we have recorded earlier, we are concerned only with those employees who are not government servants. Testing the dominant object as laid down in Bangalore Sewerage Board case (supra), we reach to inescapable conclusion that none of the activities of the Agriculture Produce Market Committee could be construed to be sovereign in nature. Hence we have no hesitation to hold that this corporation falls within the definition of "industry" under Section 2(j) of the Central Act.29. Section 2(a) of the Central Act defines `Appropriate Government in relation to any industrial disputes concerning any industry carried on by or under the authority of Central Government, or railway company etc. and refers to large number of corporations and corporate bodies which falls in the category of "industry". This indicates even Legislatures intends a very large arms of "industry", to include large number of enterprises to be industry to confer benefit to the employees working under it. In fact, several corporations conferred with statutory powers also curtails individual rights like, through levy of demurrages, detention charges in the warehousing corporation under the Warehouse Corporation Act; Regulation of entry into airport, ATC, levy and regulation of taxes and fees by the international airport authority. Assessment and levy of damages as well as penalties by authorities under the Employees State Insurance Act and Employees Provident Fund Act. Though each of the aforesaid corporations and statutory bodies are "industry". So one of the feeble submissions that curtailment of right of an individual could only be by the exercise of sovereign power has also no merit.So, sovereign function in the new sense may have very wide ramification but essentially sovereign functions are primary inalienable functions which only State could exercise. Thus, various functions of the State, may be ramifications of `sovereignty but they all cannot be construed as primary inalienable functions. Broadly it is taxation, eminent domain and police power which covers its field. It may cover its legislative functions, administration of law, eminent domain, maintenance of law and order, internal and external security, grant of pardon. So, the dichotomy between sovereign andfunction could be found by finding which of the functions of the State could be undertaken by any private person or body. The one which could be undertaken cannot be sovereign function. In a given case even in subject on which the State has the monopoly may also bein nature. Mere dealing in subject of monopoly of the State would not make any such enterprise sovereign in nature. Absence of profit making or mere quid pro would also make such enterprise to be outside the ambit of "industry" as also in State of Bombay and others case (supra).33. The last submission for the appellant is with reference to(3) of Section 59 of the said Act. The submission is, this excludes the application of the Central Act to the employees under the State Act.In view of the aforesaid settled legal principle the width of "industry" being of widest amplitude and testing it in the present case, in view of the preamble, Objects and Reasons and the scheme of the Act, theobject clearly being regulation and control of trading of agricultural produce, thusincluding its functionaries cannot be said to be performing functions which are sovereign in character. Most of its functions could be undertaken even by private persons. Thus the appellant would fall within the definition of "industry" under Section 2(j) of the Central Act. In view of this, we uphold that respondent employees are `workman under the Central Act as held by the Labour Court and confirmed by the High Court. The Labour Court has dealt with each individual case and came to the conclusion in favour ofwhich has also been confirmed by learned Single Judge and Division Bench of the High Court, which does not call for any interference
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Krishi Upaj Mandi Samiti, New Mandi Yard, Alwar Vs. Commissioner of Central Excise and Service Tax, Alwar | be adopted is concerned, the said principle shall not be applicable to construction of an exemption notification, when it is clear and not ambiguous. Thus, it will be for the assessee to show that he comes within the purview of the notification. Eligibility clause, it is well settled, in relation to exemption notification must be given effect to as per the language and not to expand its scope deviating from its language. Thus, there is a vast difference and distinction between a charging provision in a fiscal statute and an exemption notification. 9. In the present case, it is the case on behalf of the appellants that the activity of rent/lease/allotment of shop/land/platform/space is a statutory activity and the Market Committees are performing their statutory duties cast upon them under Section 9 of the Act, 1961 and therefore they are exempted from payment of service tax on such activities. The aforesaid submission seems to be attractive but has no substance. Section 9(2) is an enabling provision and the words used is market committee may. It is to be noted that in so far as sub-section (1) of Section 9 is concerned, the word used is shall. Therefore, wherever the legislature intended that the particular activity is a mandatory statutory, the legislature has used the word shall. Therefore, when under sub-section (2) of Section 9, the word used is may, the activities mentioned in Section 9(2)(xvii) cannot be said to be mandatory statutory duty and/or activity. Under Section 9(2), it is not a mandatory statutory duty cast upon the Market Committees to allot/lease/rent the shop/platform/land/space to the traders. Hence, such an activity cannot be said to be a mandatory statutory activity as contended on behalf of the appellants. Even the fees which is collected is not deposited into the Government Treasury. It will go to the Market Committee Fund and will be used by the market committee(s). In the facts of the case on hand, such a fee collected cannot have the characteristics of the statutory levy/statutory fee. Thus, under the Act, 1961, it cannot be said to be a mandatory statutory obligation of the Market Committees to provide shop/land/platform on rent/lease. If the statute mandates that the Market Committees have to provide the land/shop/platform/space on rent/lease then and then only it can be said to be a mandatory statutory obligation otherwise it is only a discretionary function under the statute. If it is discretionary function, then, it cannot be said to be a mandatory statutory obligation/statutory activity. Hence, no exemption to pay service tax can be claimed. 10. The next provision relied upon by the appellants – respective Market Committees is Rule 45 of the Rajasthan Agricultural Produce Markets Rules, 1963 (hereinafter referred to as Rules, 1963), which reads as under:- 45. The Market Committee fund.- All money received by the Market Committee shall be credited to the fund called the Market Committee fund. Except where Government on application by the Market Committee or otherwise shall direct, all money paid into the Market Committee fund shall be credited at least once a week in full into Government treasury or sub-treasury, or a bank duly approved for this purpose by the Director. All balance from the fund shall be kept in such treasury or sub- treasury or bank and it shall not be withdrawn upon except in accordance with these rules. 10.1 Now, so far as the submission on behalf of the appellants relying upon Rule 45 of the Rules, 1963 that the fees, which is collected shall be deposited with the Government Treasury and therefore also the Market Committees are exempted from payment of service tax is concerned, it is to be noted that on fair reading of Rule 45, the amount of fee so collected on such activities – rent/lease shall not go to the Government. Rule 45 provides how the money received by the Market Committees shall be invested and/or deposited. It provides that all money received by the Market Committee shall be credited to the fund called the Market Committee Fund. It further provides that all money paid into the Market Committee Fund shall be credited once a week in full into Government Treasury or sub-treasury, or a bank duly approved for this purpose by the Director and all balance from the fund shall be kept in such treasury or sub-treasury or bank and it shall not be withdrawn except in accordance with the Rules. Therefore, it does not provide that on deposit of the money received by the Market Committees into the Government Treasury/sub-treasury or a bank duly approved, it ceases to be the Market Committee Fund. It will continue to be the Market Committee Fund. Even it is the case on behalf of the appellants that the fees collected, which will be deposited in the Market Committee Fund will be utilized by the Market Committee for expanding/benefit of the Market Committee etc. 11. Even otherwise, it is to be noted that on and after 01.07.2012, such activities carried out by the Agricultural Produce Market Committees is placed in the Negative List. If the intention of the Revenue was to exempt such activities of the Market Committees from levy of service tax, in that case, there was no necessity for the Revenue subsequently to place such activity of the Market Committees in the Negative List. The fact that, on and after 01.07.2012, such activity by the Market Committees is put in the Negative List, it can safely be said that under the 2006 circular, the Market Committees were not exempted from payment of service tax on such activities. At this stage, it is required to be noted that it is not the case on behalf of the Market Committees that the activity of rent/lease on shop/land/platform as such cannot be said to be service. However, their only submission is that the Market Committees are exempted from levy of service tax on such service/activity as provided under the 2006 circular, which as observed hereinabove has no substance. | 0[ds]7. As per the exemption circular only such activities performed by the sovereign / public authorities under the provisions of law being mandatory and statutory functions and the fee collected for performing such activities is in the nature of a compulsory levy as per the provisions of the relevant statute and it is deposited into the Government Treasury, no service tax is leviable on such activities. In paragraph 3, it is also specifically clarified that if such authority performs a service, which is not in the nature of a statutory activity and the same is undertaken for consideration, then in such cases, service tax would be leviable, if the activity undertaken falls within the ambit of a taxable service. Thus, the language used in the 2006 circular is clear, unambiguous and is capable of determining a defined meaning.8. The exemption notification should not be liberally construed and beneficiary must fall within the ambit of the exemption and fulfill the conditions thereof. In case such conditions are not fulfilled, the issue of application of the notification does not arise at all by implication.8.1 It is settled law that the notification has to be read as a whole. If any of the conditions laid down in the notification is not fulfilled, the party is not entitled to the benefit of that notification. An exception and/or an exempting provision in a taxing statute should be construed strictly and it is not open to the court to ignore the conditions prescribed in the relevant policy and the exemption notifications issued in that regard.8.3 As per the law laid down by this Court in a catena of decisions, in a taxing statute, it is the plain language of the provision that has to be preferred, where language is plain and is capable of determining a defined meaning. Strict interpretation of the provision is to be accorded to each case on hand. Purposive interpretation can be given only when there is an ambiguity in the statutory provision or it results in absurdity, which is so not found in the present case.8.4 Now, so far as the submission on behalf of the respondent that in the event of ambiguity in a provision in a fiscal statute, a construction favourable to the assessee should be adopted is concerned, the said principle shall not be applicable to construction of an exemption notification, when it is clear and not ambiguous. Thus, it will be for the assessee to show that he comes within the purview of the notification. Eligibility clause, it is well settled, in relation to exemption notification must be given effect to as per the language and not to expand its scope deviating from its language. Thus, there is a vast difference and distinction between a charging provision in a fiscal statute and an exemption notification.The aforesaid submission seems to be attractive but has no substance. Section 9(2) is an enabling provision and the words used is market committee may. It is to be noted that in so far as sub-section (1) of Section 9 is concerned, the word used is shall. Therefore, wherever the legislature intended that the particular activity is a mandatory statutory, the legislature has used the word shall. Therefore, when under sub-section (2) of Section 9, the word used is may, the activities mentioned in Section 9(2)(xvii) cannot be said to be mandatory statutory duty and/or activity. Under Section 9(2), it is not a mandatory statutory duty cast upon the Market Committees to allot/lease/rent the shop/platform/land/space to the traders. Hence, such an activity cannot be said to be a mandatory statutory activity as contended on behalf of the appellants. Even the fees which is collected is not deposited into the Government Treasury. It will go to the Market Committee Fund and will be used by the market committee(s). In the facts of the case on hand, such a fee collected cannot have the characteristics of the statutory levy/statutory fee. Thus, under the Act, 1961, it cannot be said to be a mandatory statutory obligation of the Market Committees to provide shop/land/platform on rent/lease. If the statute mandates that the Market Committees have to provide the land/shop/platform/space on rent/lease then and then only it can be said to be a mandatory statutory obligation otherwise it is only a discretionary function under the statute. If it is discretionary function, then, it cannot be said to be a mandatory statutory obligation/statutory activity. Hence, no exemption to pay service tax can be claimed.10.1 Now, so far as the submission on behalf of the appellants relying upon Rule 45 of the Rules, 1963 that the fees, which is collected shall be deposited with the Government Treasury and therefore also the Market Committees are exempted from payment of service tax is concerned, it is to be noted that on fair reading of Rule 45, the amount of fee so collected on such activities – rent/lease shall not go to the Government. Rule 45 provides how the money received by the Market Committees shall be invested and/or deposited. It provides that all money received by the Market Committee shall be credited to the fund called the Market Committee Fund. It further provides that all money paid into the Market Committee Fund shall be credited once a week in full into Government Treasury or sub-treasury, or a bank duly approved for this purpose by the Director and all balance from the fund shall be kept in such treasury or sub-treasury or bank and it shall not be withdrawn except in accordance with the Rules. Therefore, it does not provide that on deposit of the money received by the Market Committees into the Government Treasury/sub-treasury or a bank duly approved, it ceases to be the Market Committee Fund. It will continue to be the Market Committee Fund. Even it is the case on behalf of the appellants that the fees collected, which will be deposited in the Market Committee Fund will be utilized by the Market Committee for expanding/benefit of the Market Committee etc.11. Even otherwise, it is to be noted that on and after 01.07.2012, such activities carried out by the Agricultural Produce Market Committees is placed in the Negative List. If the intention of the Revenue was to exempt such activities of the Market Committees from levy of service tax, in that case, there was no necessity for the Revenue subsequently to place such activity of the Market Committees in the Negative List. The fact that, on and after 01.07.2012, such activity by the Market Committees is put in the Negative List, it can safely be said that under the 2006 circular, the Market Committees were not exempted from payment of service tax on such activities. At this stage, it is required to be noted that it is not the case on behalf of the Market Committees that the activity of rent/lease on shop/land/platform as such cannot be said to be service. However, their only submission is that the Market Committees are exempted from levy of service tax on such service/activity as provided under the 2006 circular, which as observed hereinabove has no substance. | 0 | 4,072 | 1,306 | ### 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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be adopted is concerned, the said principle shall not be applicable to construction of an exemption notification, when it is clear and not ambiguous. Thus, it will be for the assessee to show that he comes within the purview of the notification. Eligibility clause, it is well settled, in relation to exemption notification must be given effect to as per the language and not to expand its scope deviating from its language. Thus, there is a vast difference and distinction between a charging provision in a fiscal statute and an exemption notification. 9. In the present case, it is the case on behalf of the appellants that the activity of rent/lease/allotment of shop/land/platform/space is a statutory activity and the Market Committees are performing their statutory duties cast upon them under Section 9 of the Act, 1961 and therefore they are exempted from payment of service tax on such activities. The aforesaid submission seems to be attractive but has no substance. Section 9(2) is an enabling provision and the words used is market committee may. It is to be noted that in so far as sub-section (1) of Section 9 is concerned, the word used is shall. Therefore, wherever the legislature intended that the particular activity is a mandatory statutory, the legislature has used the word shall. Therefore, when under sub-section (2) of Section 9, the word used is may, the activities mentioned in Section 9(2)(xvii) cannot be said to be mandatory statutory duty and/or activity. Under Section 9(2), it is not a mandatory statutory duty cast upon the Market Committees to allot/lease/rent the shop/platform/land/space to the traders. Hence, such an activity cannot be said to be a mandatory statutory activity as contended on behalf of the appellants. Even the fees which is collected is not deposited into the Government Treasury. It will go to the Market Committee Fund and will be used by the market committee(s). In the facts of the case on hand, such a fee collected cannot have the characteristics of the statutory levy/statutory fee. Thus, under the Act, 1961, it cannot be said to be a mandatory statutory obligation of the Market Committees to provide shop/land/platform on rent/lease. If the statute mandates that the Market Committees have to provide the land/shop/platform/space on rent/lease then and then only it can be said to be a mandatory statutory obligation otherwise it is only a discretionary function under the statute. If it is discretionary function, then, it cannot be said to be a mandatory statutory obligation/statutory activity. Hence, no exemption to pay service tax can be claimed. 10. The next provision relied upon by the appellants – respective Market Committees is Rule 45 of the Rajasthan Agricultural Produce Markets Rules, 1963 (hereinafter referred to as Rules, 1963), which reads as under:- 45. The Market Committee fund.- All money received by the Market Committee shall be credited to the fund called the Market Committee fund. Except where Government on application by the Market Committee or otherwise shall direct, all money paid into the Market Committee fund shall be credited at least once a week in full into Government treasury or sub-treasury, or a bank duly approved for this purpose by the Director. All balance from the fund shall be kept in such treasury or sub- treasury or bank and it shall not be withdrawn upon except in accordance with these rules. 10.1 Now, so far as the submission on behalf of the appellants relying upon Rule 45 of the Rules, 1963 that the fees, which is collected shall be deposited with the Government Treasury and therefore also the Market Committees are exempted from payment of service tax is concerned, it is to be noted that on fair reading of Rule 45, the amount of fee so collected on such activities – rent/lease shall not go to the Government. Rule 45 provides how the money received by the Market Committees shall be invested and/or deposited. It provides that all money received by the Market Committee shall be credited to the fund called the Market Committee Fund. It further provides that all money paid into the Market Committee Fund shall be credited once a week in full into Government Treasury or sub-treasury, or a bank duly approved for this purpose by the Director and all balance from the fund shall be kept in such treasury or sub-treasury or bank and it shall not be withdrawn except in accordance with the Rules. Therefore, it does not provide that on deposit of the money received by the Market Committees into the Government Treasury/sub-treasury or a bank duly approved, it ceases to be the Market Committee Fund. It will continue to be the Market Committee Fund. Even it is the case on behalf of the appellants that the fees collected, which will be deposited in the Market Committee Fund will be utilized by the Market Committee for expanding/benefit of the Market Committee etc. 11. Even otherwise, it is to be noted that on and after 01.07.2012, such activities carried out by the Agricultural Produce Market Committees is placed in the Negative List. If the intention of the Revenue was to exempt such activities of the Market Committees from levy of service tax, in that case, there was no necessity for the Revenue subsequently to place such activity of the Market Committees in the Negative List. The fact that, on and after 01.07.2012, such activity by the Market Committees is put in the Negative List, it can safely be said that under the 2006 circular, the Market Committees were not exempted from payment of service tax on such activities. At this stage, it is required to be noted that it is not the case on behalf of the Market Committees that the activity of rent/lease on shop/land/platform as such cannot be said to be service. However, their only submission is that the Market Committees are exempted from levy of service tax on such service/activity as provided under the 2006 circular, which as observed hereinabove has no substance.
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is settled law that the notification has to be read as a whole. If any of the conditions laid down in the notification is not fulfilled, the party is not entitled to the benefit of that notification. An exception and/or an exempting provision in a taxing statute should be construed strictly and it is not open to the court to ignore the conditions prescribed in the relevant policy and the exemption notifications issued in that regard.8.3 As per the law laid down by this Court in a catena of decisions, in a taxing statute, it is the plain language of the provision that has to be preferred, where language is plain and is capable of determining a defined meaning. Strict interpretation of the provision is to be accorded to each case on hand. Purposive interpretation can be given only when there is an ambiguity in the statutory provision or it results in absurdity, which is so not found in the present case.8.4 Now, so far as the submission on behalf of the respondent that in the event of ambiguity in a provision in a fiscal statute, a construction favourable to the assessee should be adopted is concerned, the said principle shall not be applicable to construction of an exemption notification, when it is clear and not ambiguous. Thus, it will be for the assessee to show that he comes within the purview of the notification. Eligibility clause, it is well settled, in relation to exemption notification must be given effect to as per the language and not to expand its scope deviating from its language. Thus, there is a vast difference and distinction between a charging provision in a fiscal statute and an exemption notification.The aforesaid submission seems to be attractive but has no substance. Section 9(2) is an enabling provision and the words used is market committee may. It is to be noted that in so far as sub-section (1) of Section 9 is concerned, the word used is shall. Therefore, wherever the legislature intended that the particular activity is a mandatory statutory, the legislature has used the word shall. Therefore, when under sub-section (2) of Section 9, the word used is may, the activities mentioned in Section 9(2)(xvii) cannot be said to be mandatory statutory duty and/or activity. Under Section 9(2), it is not a mandatory statutory duty cast upon the Market Committees to allot/lease/rent the shop/platform/land/space to the traders. Hence, such an activity cannot be said to be a mandatory statutory activity as contended on behalf of the appellants. Even the fees which is collected is not deposited into the Government Treasury. It will go to the Market Committee Fund and will be used by the market committee(s). In the facts of the case on hand, such a fee collected cannot have the characteristics of the statutory levy/statutory fee. Thus, under the Act, 1961, it cannot be said to be a mandatory statutory obligation of the Market Committees to provide shop/land/platform on rent/lease. If the statute mandates that the Market Committees have to provide the land/shop/platform/space on rent/lease then and then only it can be said to be a mandatory statutory obligation otherwise it is only a discretionary function under the statute. If it is discretionary function, then, it cannot be said to be a mandatory statutory obligation/statutory activity. Hence, no exemption to pay service tax can be claimed.10.1 Now, so far as the submission on behalf of the appellants relying upon Rule 45 of the Rules, 1963 that the fees, which is collected shall be deposited with the Government Treasury and therefore also the Market Committees are exempted from payment of service tax is concerned, it is to be noted that on fair reading of Rule 45, the amount of fee so collected on such activities – rent/lease shall not go to the Government. Rule 45 provides how the money received by the Market Committees shall be invested and/or deposited. It provides that all money received by the Market Committee shall be credited to the fund called the Market Committee Fund. It further provides that all money paid into the Market Committee Fund shall be credited once a week in full into Government Treasury or sub-treasury, or a bank duly approved for this purpose by the Director and all balance from the fund shall be kept in such treasury or sub-treasury or bank and it shall not be withdrawn except in accordance with the Rules. Therefore, it does not provide that on deposit of the money received by the Market Committees into the Government Treasury/sub-treasury or a bank duly approved, it ceases to be the Market Committee Fund. It will continue to be the Market Committee Fund. Even it is the case on behalf of the appellants that the fees collected, which will be deposited in the Market Committee Fund will be utilized by the Market Committee for expanding/benefit of the Market Committee etc.11. Even otherwise, it is to be noted that on and after 01.07.2012, such activities carried out by the Agricultural Produce Market Committees is placed in the Negative List. If the intention of the Revenue was to exempt such activities of the Market Committees from levy of service tax, in that case, there was no necessity for the Revenue subsequently to place such activity of the Market Committees in the Negative List. The fact that, on and after 01.07.2012, such activity by the Market Committees is put in the Negative List, it can safely be said that under the 2006 circular, the Market Committees were not exempted from payment of service tax on such activities. At this stage, it is required to be noted that it is not the case on behalf of the Market Committees that the activity of rent/lease on shop/land/platform as such cannot be said to be service. However, their only submission is that the Market Committees are exempted from levy of service tax on such service/activity as provided under the 2006 circular, which as observed hereinabove has no substance.
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State of Maharashtra Vs. Nainmal Punjaji Shah & Another | Rs. 25 lakhs for relief work in Rajasthan but the High Court felt that it was difficult to say with any reasonable certainty that a donation of Rs. 25 lakhs had in fact been made by Nainmal and that the same had been made out of his own earnings.22. The High Court was, however, impressed by the fact that although the respondents had been released on bail in two other cases which were pending they neither escaped nor attempted to tamper with the evidence on the side of the prosecution in those cases. Gatne, J., concluded on this part of the case thus :"On the materials, as they stand, there is in my opinion, no foundation for the belief that the respondents would in fact leave India and abscond in the event of their being released on bail. Both the respondents are persons having a family and property in India. In fact respondent No. 1 has a wife, who is expecting to deliver in the month of August, 1969".The High Court also repelled the contention of the Customs that the respondents would tamper with the evidence in the case. The High Court also refused to accept the allegation of the Customs that it was the respondents who had induced Gopal Shivalkar to escape from custody.23. The High Court refused to attach any credence to the statement of Pokhraj that his evidence had been attempted to be tempered with. On the whole the High Court was of the view that there was no justification for the apprehension that if the respondents were released on bail they would further indulge in similar activities.24. The High Court then considered whether it was still necessary to detain the respondents in the interest of smooth and efficient investigation of this somewhat extraordinary case. The High Court observed :"Having regard to the nature of the case and the difficulties which must naturally arise in investigation of this kind, it seems to me that there is some justification for Mr. Porus Mehtas contention that it would not be advisable to set the respondents at liberty before at least the crucial stage of the investigation is over. Mr. Porus Mehta has urged that some important investigation still remains to be made and remain to be carried out. Mr. Porus Mehta undertakes to file the complaint against these respondents before the expiry of six months from today. On the other hand, Mr. Peerbhoy points out that enough time was already granted to the prosecution to carry out this important investigation during the past two or three months. That no doubt is true, but some further time is, in my opinion, necessary in the interest of justice and fair play. If the liberty of an individual is important, the necessity of investigations of this kind being carried out in a smooth and efficient manner is equally important".The High Court, therefore, directed as follows :"I would, therefore, direct that this order of confirmation of bail shall operate after the expiry of two months from today. In the meantime, the prosecution would of course have to approach the Magistrate for remand from time to time as required by law. Even after the expiry of two months, it would be open to the learned Chief Presidency Magistrate to consider if the exigencies of investigations or any other important circumstances justify the grant of further remand to these respondents".The High Court raised the amount of bail in the case of respondent Nainmal from 15 lakhs to 20 lakhs and in the case of respondent Champalal from 5 lakhs to 7 1/2 lakhs. The High Court further directed that the other conditions imposed by the learned Chief Presidency Magistrate shall stand in tact. Accordingly subject to the aforesaid modifications the order of bail was confirmed and the revision application dismissed.25. We have heard the learned counsel for the appellant, Mr. Porus Mehta, at length. While we are impressed with the extraordinary nature of the facts of this case and that the investigations should proceed fairly and efficiently, it is impossible to say that no bail should be granted to the respondents during the pendency of the whole of the investigations. It was stated on behalf of the Customs before Gatne, J., that the complaint would be filed within six months from that date. We are of the view that the respondents cannot be detained in custody longer than that period. No material has been shown to us to enable us to differ from the finding of the High Court that on the facts placed before us and before the High Court there is any reasonable apprehension that the respondents would try to leave India. In such matters there must be absolute certainty that he was likely to leave the country before a Court would detain an accused indefinitely during the whole period of the investigation. If this consideration is kept aside, the only other consideration would be the reasonable apprehension that evidence would be tampered with. Here again no material has been placed before us to show that we should come to a finding different from that of the High Court. The third consideration is the larger interest of the State, as pointed out by this Court in State v. Jagjit Singh. We feel that this interest was not adequately kept in view by the High Court and this requires that the respondents should be kept in custody for six months from the date of the order of the High Court dated August 1, 1969. We may mention that the State undertakes not to ask for remand to custody if it is no longer absolutely essential that the respondents be kept in custody. As already stated, the State will continue to apply for remand and if some facts which we have not taken into consideration or anticipated come to light the Chief Presidency Magistrate would be entitled to forward to us his recommendations that the order we have made should be modified in any respect. | 0[ds]2. The question before us is whether on the facts and circumstances of the case the order of the High Court should be maintained or modified in any manner.Ordinarily this Court does not go into these questions but, as will be presently seen the facts in this case are extraordinary and this Court felt that the matter should be looked into by it.We have heard the learned counsel for the appellant, Mr. Porus Mehta, at length. While we are impressed with the extraordinary nature of the facts of this case and that the investigations should proceed fairly and efficiently, it is impossible to say that no bail should be granted to the respondents during the pendency of the whole of the investigations. It was stated on behalf of the Customs before Gatne, J., that the complaint would be filed within six months from that date. We are of the view that the respondents cannot be detained in custody longer than that period. No material has been shown to us to enable us to differ from the finding of the High Court that on the facts placed before us and before the High Court there is any reasonable apprehension that the respondents would try to leave India. In such matters there must be absolute certainty that he was likely to leave the country before a Court would detain an accused indefinitely during the whole period of the investigation. If this consideration is kept aside, the only other consideration would be the reasonable apprehension that evidence would be tampered with. Here again no material has been placed before us to show that we should come to a finding different from that of the High Court. The third consideration is the larger interest of the State, as pointed out by this Court in State v. Jagjit Singh. We feel that this interest was not adequately kept in view by the High Court and this requires that the respondents should be kept in custody for six months from the date of the order of the High Court dated August 1, 1969. We may mention that the State undertakes not to ask for remand to custody if it is no longer absolutely essential that the respondents be kept in custody. As already stated, the State will continue to apply for remand and if some facts which we have not taken into consideration or anticipated come to light the Chief Presidency Magistrate would be entitled to forward to us his recommendations that the order we have made should be modified in any respect. | 0 | 3,705 | 455 | ### 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:
Rs. 25 lakhs for relief work in Rajasthan but the High Court felt that it was difficult to say with any reasonable certainty that a donation of Rs. 25 lakhs had in fact been made by Nainmal and that the same had been made out of his own earnings.22. The High Court was, however, impressed by the fact that although the respondents had been released on bail in two other cases which were pending they neither escaped nor attempted to tamper with the evidence on the side of the prosecution in those cases. Gatne, J., concluded on this part of the case thus :"On the materials, as they stand, there is in my opinion, no foundation for the belief that the respondents would in fact leave India and abscond in the event of their being released on bail. Both the respondents are persons having a family and property in India. In fact respondent No. 1 has a wife, who is expecting to deliver in the month of August, 1969".The High Court also repelled the contention of the Customs that the respondents would tamper with the evidence in the case. The High Court also refused to accept the allegation of the Customs that it was the respondents who had induced Gopal Shivalkar to escape from custody.23. The High Court refused to attach any credence to the statement of Pokhraj that his evidence had been attempted to be tempered with. On the whole the High Court was of the view that there was no justification for the apprehension that if the respondents were released on bail they would further indulge in similar activities.24. The High Court then considered whether it was still necessary to detain the respondents in the interest of smooth and efficient investigation of this somewhat extraordinary case. The High Court observed :"Having regard to the nature of the case and the difficulties which must naturally arise in investigation of this kind, it seems to me that there is some justification for Mr. Porus Mehtas contention that it would not be advisable to set the respondents at liberty before at least the crucial stage of the investigation is over. Mr. Porus Mehta has urged that some important investigation still remains to be made and remain to be carried out. Mr. Porus Mehta undertakes to file the complaint against these respondents before the expiry of six months from today. On the other hand, Mr. Peerbhoy points out that enough time was already granted to the prosecution to carry out this important investigation during the past two or three months. That no doubt is true, but some further time is, in my opinion, necessary in the interest of justice and fair play. If the liberty of an individual is important, the necessity of investigations of this kind being carried out in a smooth and efficient manner is equally important".The High Court, therefore, directed as follows :"I would, therefore, direct that this order of confirmation of bail shall operate after the expiry of two months from today. In the meantime, the prosecution would of course have to approach the Magistrate for remand from time to time as required by law. Even after the expiry of two months, it would be open to the learned Chief Presidency Magistrate to consider if the exigencies of investigations or any other important circumstances justify the grant of further remand to these respondents".The High Court raised the amount of bail in the case of respondent Nainmal from 15 lakhs to 20 lakhs and in the case of respondent Champalal from 5 lakhs to 7 1/2 lakhs. The High Court further directed that the other conditions imposed by the learned Chief Presidency Magistrate shall stand in tact. Accordingly subject to the aforesaid modifications the order of bail was confirmed and the revision application dismissed.25. We have heard the learned counsel for the appellant, Mr. Porus Mehta, at length. While we are impressed with the extraordinary nature of the facts of this case and that the investigations should proceed fairly and efficiently, it is impossible to say that no bail should be granted to the respondents during the pendency of the whole of the investigations. It was stated on behalf of the Customs before Gatne, J., that the complaint would be filed within six months from that date. We are of the view that the respondents cannot be detained in custody longer than that period. No material has been shown to us to enable us to differ from the finding of the High Court that on the facts placed before us and before the High Court there is any reasonable apprehension that the respondents would try to leave India. In such matters there must be absolute certainty that he was likely to leave the country before a Court would detain an accused indefinitely during the whole period of the investigation. If this consideration is kept aside, the only other consideration would be the reasonable apprehension that evidence would be tampered with. Here again no material has been placed before us to show that we should come to a finding different from that of the High Court. The third consideration is the larger interest of the State, as pointed out by this Court in State v. Jagjit Singh. We feel that this interest was not adequately kept in view by the High Court and this requires that the respondents should be kept in custody for six months from the date of the order of the High Court dated August 1, 1969. We may mention that the State undertakes not to ask for remand to custody if it is no longer absolutely essential that the respondents be kept in custody. As already stated, the State will continue to apply for remand and if some facts which we have not taken into consideration or anticipated come to light the Chief Presidency Magistrate would be entitled to forward to us his recommendations that the order we have made should be modified in any respect.
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2. The question before us is whether on the facts and circumstances of the case the order of the High Court should be maintained or modified in any manner.Ordinarily this Court does not go into these questions but, as will be presently seen the facts in this case are extraordinary and this Court felt that the matter should be looked into by it.We have heard the learned counsel for the appellant, Mr. Porus Mehta, at length. While we are impressed with the extraordinary nature of the facts of this case and that the investigations should proceed fairly and efficiently, it is impossible to say that no bail should be granted to the respondents during the pendency of the whole of the investigations. It was stated on behalf of the Customs before Gatne, J., that the complaint would be filed within six months from that date. We are of the view that the respondents cannot be detained in custody longer than that period. No material has been shown to us to enable us to differ from the finding of the High Court that on the facts placed before us and before the High Court there is any reasonable apprehension that the respondents would try to leave India. In such matters there must be absolute certainty that he was likely to leave the country before a Court would detain an accused indefinitely during the whole period of the investigation. If this consideration is kept aside, the only other consideration would be the reasonable apprehension that evidence would be tampered with. Here again no material has been placed before us to show that we should come to a finding different from that of the High Court. The third consideration is the larger interest of the State, as pointed out by this Court in State v. Jagjit Singh. We feel that this interest was not adequately kept in view by the High Court and this requires that the respondents should be kept in custody for six months from the date of the order of the High Court dated August 1, 1969. We may mention that the State undertakes not to ask for remand to custody if it is no longer absolutely essential that the respondents be kept in custody. As already stated, the State will continue to apply for remand and if some facts which we have not taken into consideration or anticipated come to light the Chief Presidency Magistrate would be entitled to forward to us his recommendations that the order we have made should be modified in any respect.
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S.N. Palanitkar and Ors Vs. State of Bihar and Anr | contract touching commercial transactions instead of approaching civil courts with a view to realize money at the earliest. It is also to be kept in mind that when parties commit a wrongful act constituting a criminal offence satisfying necessary ingredients of an offence, they cannot be allowed to walk away with an impression that no action could be taken against them on criminal side. A wrongful or illegal act such as criminal breach of trust, misappropriation, cheating or defamation may give rise to action both on civil as well as on criminal side when it is clear from the complaint and sworn statements that necessary ingredients of constituting an offence are made out. May be parties are entitled to proceed on civil side only in a given situation in the absence of an act constituting an offence but not to proceed against the accused in a criminal prosecution. Hence before issuing a process a Magistrate has to essentially keep in mind the scheme contained in the provisions of Sections 200-203 of Cr.P.C. keeping in mind the position of law stated above and pass an order judiciously and not mechanically or in routine manner. 24. The learned Magistrate, in our view, having regard to the facts stated and the legal position explained above, committed a serious error in issuing the process against the appellants 1 to 6 and 8 for offences under Sections 406, 420 and 120-B IPC when the acts alleged against them did not constitute these offences satisfying their ingredients even prima facie. In the light of the material brought on record at that stage process could have been issued only as against the appellant No. 7, that too for an offence under Section 420 IPC only. 25. The High Court dismissed the petition filed under Section 482 Cr.P.C. by the impugned order placing reliance, in particular, on two decisions of this Court, one Trisuns Chemical Industry (supra) and Medchl Chemicals and Pharma (P) Ltd. v. Biological E. Ltd. and others, 2000(3) SCC 269. In the first case, this Court held that the exercise of inherent power should be limited to very extreme exceptions. Further it was held that referring the disputes to arbitration is not an effective substitute for a criminal prosecution when the disputed act is an offence. It may be noted that the said judgment gets attracted only when the disputed act is an offence, which the High Court has failed to notice. No doubt, exercise of inherent power under Section 482 Cr.P.C. by High Court should be limited to very extreme exceptions but in a case where ingredients of alleged offences are not satisfied even prima facie, it cannot be said that power under Section 482 Cr.P.C. should not be exercised to quash the process issued by a Magistrate. In the case of Smt. Nagawwa (supra), it is laid down that in such a case, power under Section 482 Cr.P.C. can be exercised to quash the process issued by a Magistrate. 26. In the second case also, this Court has expressed that "exercise of jurisdiction under the inherent power as envisaged under Section 482 Cr.P.C. to have the complaint or the charge-sheet quashed is an exception rather than a rule and the case for quashing at the initial stage must have to be treated as rarest of rare so as not to scuttle the prosecution. .......................In the event, however, the court on perusal of the complaint comes to a conclusion that the allegations levelled in the complaint or charge-sheet on the face of it does not constitute or disclose any offence as alleged, there ought not to be any hesitation to rise up to the expectation of the people and deal with the situation as is required under the law." Even from this case also, it is clear that if no offence is made out from the allegations made in the complaint, there should be no hesitation in exercising power under Section 482 Cr.P.C. to pass appropriate order. 27. In the case on hand, we have already stated above, that except against the appellant No. 7, no offence was made out against the remaining appellants as the ingredients of offences alleged against them were not satisfied. Unfortunately, the High Court failed to exercise jurisdiction under Section 482 Cr.P.C. to correct manifest error committed by the learned Magistrate in issuing process against the appellants 1-6 and 8 when the alleged acts against them did not constitute offences for want of satisfying the ingredients of the offences. The approach and considerations while exercising power and jurisdiction by a Magistrate at the time of issuing process are to be in terms of Sections 200 to 203 under Chapter XV of Cr.P.C., having due regard to the position of law explained in various decisions of this Court, and whereas while exercising power under Section 482 of Cr.P.C. the High Court has to look at the object and purpose for which such power is conferred on it under the said provision. Exercise of inherent power is available to the High Court to give effect to any order under the Cr.P.C., or to prevent abuse of the process of any court or otherwise to secure the ends of justice. This being the position, exercise of power under Section 482 Cr.P.C. should be consistent with the scope and ambit of the same in the light of the decisions aforementioned. In appropriate cases, to prevent judicial process from being an instrument of oppression or harassment in the hands of frustrated or vindictive litigants, exercise of inherent power is not only desirable but necessary also, so that the judicial forum of court may not be allowed to be utilized for any oblique motive. When a person approaches the High Court under Section 482 Cr.P.C. to quash the very issue of process, the High Court on the facts and circumstances of a case has to exercise the powers with circumspection as stated above to really serve the purpose and object for which they are conferred. | 1[ds]An act of breach of trust involves a civil wrong in respect of which the person wronged may seek his redress for damages in a civil Court but a breach of trust with mens rea gives rise to a criminal prosecution as well.9. The ingredients in order to constitute a criminal breach of trust are : (i) entrusting a person with property or with any dominion over property (ii) that person entrusted (a) dishonestly misappropriating or converting that property to his own use; or (b) dishonestly using or disposing of that property or wilfully suffering any other person so to do in violation (i) of any direction of law prescribing the mode in which such trust is to be discharged (ii) of any legal contract made touching the discharge of such trust.10. The ingredients of an offence of cheating are : (i) there should be fraudulent or dishonest inducement of a person by deceiving him; (ii) (a) the person so deceived should be induced to deliver any property to any person, or to consent that any person shall retain any property; or (b) the person so deceived should be intentionally induced to do or omit to do anything which he would not do or omit if he were not so deceived; and (iii) in cases covered by (ii)(b), the act of omission should be one which causes or is likely to cause damage or harm to the person induced in body, mind, reputation or property.12. Finding that ingredients of the offence of cheating and its allied offences had not been made out, this Court interfered with the order of the High Court and quashed the criminal proceedings.Turning to the facts of the case, there is nothing either in the complaint and/or in the sworn statements of the complainant and the three witnesses that any property was entrusted to any of the appellants at all or the appellants had domain over any of the properties of respondent No. 2 which they dishonestly converted to their own use so as to satisfy the ingredients of Section 405 IPC punishable under Section 406 IPC. Further the agreement also did not require entrustment of any property to the appellants. Taking the complaint and the statements of the witnesses as they are, it cannot be said even prima facie, that the appellants committed any offence punishable under Section 406 IPC, since the ingredients of that offence were not satisfied. Hence the learned Magistrate committed a serious error in issuing process against the appellants for the said offence. Unfortunately, the High Court also failed to correct this manifest error.21. It is clear from the allegations made in the complaint and the sworn statements that the appellant No. 1 company entered into an agreement with the respondent No. 2 on certain terms and conditions. It is alleged that the appellant No. 7 went to Patna and contacted respondent No. 2 and induced him to enter into an agreement assuring him of huge profit. At the time of arriving at such an agreement, none of the other appellants either met the respondent No. 2 or induced him to enter into any agreement with a view to cheat him. The agreement was further renewed for a period of one year. It is not the case that there was no supply of goods at all as it has come on record that there was supply of 400 ton of fertilizer, may be it was far less than the required quantity. The allegations made against the appellants other than the appellant No. 7 are very vague and bald. From the material that was placed before the Magistrate, even prima facie, it cannot be said that there was conspiracy or connivance between the other appellants and the appellant No. 7. If the appellants have committed breach of agreement, it is open to respondent No. 2 to seek redressal in a competent court or forum to recover damages, if permissible in law in case he had sustained any loss. In order to constitute an offence of cheating, the intention to deceive should be in existence at the time when the inducement was made. It is necessary to show that a person had fraudulent or dishonest intention at the time of making the promise, to say that he committed an act of cheating. A mere failure to keep up promise subsequently cannot be presumed as an act leading to cheating.22. Looking to the complaint and the grievances made by the complainant therein and having regard to the agreement, it is clear that the dispute and grievances arise out of the said agreement. Clause 29 of the agreement provides for reference to arbitration in case of disputes or controversy between the parties and the said clause is wide enough to cover almost all sorts of disputes arising out of the agreement. As a matter of fact, it is also brought to our notice that the complainant issued a notice dated 3.10.1997 to the appellants invoking this arbitration clause claiming Rs. 15 lacs. It is thereafter the present complaint was filed. For the alleged breach of the agreement in relation to commercial transaction, it is open to the respondent No. 2 to proceed against the appellants for his redressal for recovery of money by way of damages for the loss caused, if any. Merely because there is an arbitration clause in the agreement, that cannot prevent criminal prosecution against the accused if an act constituting a criminal offence is made out even prima facie.The learned Magistrate, in our view, having regard to the facts stated and the legal position explained above, committed a serious error in issuing the process against the appellants 1 to 6 and 8 for offences under Sections 406, 420 andIPC when the acts alleged against them did not constitute these offences satisfying their ingredients even prima facie. In the light of the material brought on record at that stage process could have been issued only as against the appellant No. 7, that too for an offence under Section 420 IPCdoubt, exercise of inherent power under Section 482 Cr.P.C. by High Court should be limited to very extreme exceptions but in a case where ingredients of alleged offences are not satisfied even prima facie, it cannot be said that power under Section 482 Cr.P.C. should not be exercised to quash the process issued by a Magistrate. In the case of Smt. Nagawwa (supra), it is laid down that in such a case, power under Section 482 Cr.P.C. can be exercised to quash the process issued by afrom this case also, it is clear that if no offence is made out from the allegations made in the complaint, there should be no hesitation in exercising power under Section 482 Cr.P.C. to pass appropriateof inherent power is available to the High Court to give effect to any order under the Cr.P.C., or to prevent abuse of the process of any court or otherwise to secure the ends of justice. This being the position, exercise of power under Section 482 Cr.P.C. should be consistent with the scope and ambit of the same in the light of the decisions aforementioned. In appropriate cases, to prevent judicial process from being an instrument of oppression or harassment in the hands of frustrated or vindictive litigants, exercise of inherent power is not only desirable but necessary also, so that the judicial forum of court may not be allowed to be utilized for any oblique motive. When a person approaches the High Court under Section 482 Cr.P.C. to quash the very issue of process, the High Court on the facts and circumstances of a case has to exercise the powers with circumspection as stated above to really serve the purpose and object for which they are conferred. | 1 | 4,677 | 1,427 | ### 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:
contract touching commercial transactions instead of approaching civil courts with a view to realize money at the earliest. It is also to be kept in mind that when parties commit a wrongful act constituting a criminal offence satisfying necessary ingredients of an offence, they cannot be allowed to walk away with an impression that no action could be taken against them on criminal side. A wrongful or illegal act such as criminal breach of trust, misappropriation, cheating or defamation may give rise to action both on civil as well as on criminal side when it is clear from the complaint and sworn statements that necessary ingredients of constituting an offence are made out. May be parties are entitled to proceed on civil side only in a given situation in the absence of an act constituting an offence but not to proceed against the accused in a criminal prosecution. Hence before issuing a process a Magistrate has to essentially keep in mind the scheme contained in the provisions of Sections 200-203 of Cr.P.C. keeping in mind the position of law stated above and pass an order judiciously and not mechanically or in routine manner. 24. The learned Magistrate, in our view, having regard to the facts stated and the legal position explained above, committed a serious error in issuing the process against the appellants 1 to 6 and 8 for offences under Sections 406, 420 and 120-B IPC when the acts alleged against them did not constitute these offences satisfying their ingredients even prima facie. In the light of the material brought on record at that stage process could have been issued only as against the appellant No. 7, that too for an offence under Section 420 IPC only. 25. The High Court dismissed the petition filed under Section 482 Cr.P.C. by the impugned order placing reliance, in particular, on two decisions of this Court, one Trisuns Chemical Industry (supra) and Medchl Chemicals and Pharma (P) Ltd. v. Biological E. Ltd. and others, 2000(3) SCC 269. In the first case, this Court held that the exercise of inherent power should be limited to very extreme exceptions. Further it was held that referring the disputes to arbitration is not an effective substitute for a criminal prosecution when the disputed act is an offence. It may be noted that the said judgment gets attracted only when the disputed act is an offence, which the High Court has failed to notice. No doubt, exercise of inherent power under Section 482 Cr.P.C. by High Court should be limited to very extreme exceptions but in a case where ingredients of alleged offences are not satisfied even prima facie, it cannot be said that power under Section 482 Cr.P.C. should not be exercised to quash the process issued by a Magistrate. In the case of Smt. Nagawwa (supra), it is laid down that in such a case, power under Section 482 Cr.P.C. can be exercised to quash the process issued by a Magistrate. 26. In the second case also, this Court has expressed that "exercise of jurisdiction under the inherent power as envisaged under Section 482 Cr.P.C. to have the complaint or the charge-sheet quashed is an exception rather than a rule and the case for quashing at the initial stage must have to be treated as rarest of rare so as not to scuttle the prosecution. .......................In the event, however, the court on perusal of the complaint comes to a conclusion that the allegations levelled in the complaint or charge-sheet on the face of it does not constitute or disclose any offence as alleged, there ought not to be any hesitation to rise up to the expectation of the people and deal with the situation as is required under the law." Even from this case also, it is clear that if no offence is made out from the allegations made in the complaint, there should be no hesitation in exercising power under Section 482 Cr.P.C. to pass appropriate order. 27. In the case on hand, we have already stated above, that except against the appellant No. 7, no offence was made out against the remaining appellants as the ingredients of offences alleged against them were not satisfied. Unfortunately, the High Court failed to exercise jurisdiction under Section 482 Cr.P.C. to correct manifest error committed by the learned Magistrate in issuing process against the appellants 1-6 and 8 when the alleged acts against them did not constitute offences for want of satisfying the ingredients of the offences. The approach and considerations while exercising power and jurisdiction by a Magistrate at the time of issuing process are to be in terms of Sections 200 to 203 under Chapter XV of Cr.P.C., having due regard to the position of law explained in various decisions of this Court, and whereas while exercising power under Section 482 of Cr.P.C. the High Court has to look at the object and purpose for which such power is conferred on it under the said provision. Exercise of inherent power is available to the High Court to give effect to any order under the Cr.P.C., or to prevent abuse of the process of any court or otherwise to secure the ends of justice. This being the position, exercise of power under Section 482 Cr.P.C. should be consistent with the scope and ambit of the same in the light of the decisions aforementioned. In appropriate cases, to prevent judicial process from being an instrument of oppression or harassment in the hands of frustrated or vindictive litigants, exercise of inherent power is not only desirable but necessary also, so that the judicial forum of court may not be allowed to be utilized for any oblique motive. When a person approaches the High Court under Section 482 Cr.P.C. to quash the very issue of process, the High Court on the facts and circumstances of a case has to exercise the powers with circumspection as stated above to really serve the purpose and object for which they are conferred.
### Response:
1
### Explanation:
the complainant and the three witnesses that any property was entrusted to any of the appellants at all or the appellants had domain over any of the properties of respondent No. 2 which they dishonestly converted to their own use so as to satisfy the ingredients of Section 405 IPC punishable under Section 406 IPC. Further the agreement also did not require entrustment of any property to the appellants. Taking the complaint and the statements of the witnesses as they are, it cannot be said even prima facie, that the appellants committed any offence punishable under Section 406 IPC, since the ingredients of that offence were not satisfied. Hence the learned Magistrate committed a serious error in issuing process against the appellants for the said offence. Unfortunately, the High Court also failed to correct this manifest error.21. It is clear from the allegations made in the complaint and the sworn statements that the appellant No. 1 company entered into an agreement with the respondent No. 2 on certain terms and conditions. It is alleged that the appellant No. 7 went to Patna and contacted respondent No. 2 and induced him to enter into an agreement assuring him of huge profit. At the time of arriving at such an agreement, none of the other appellants either met the respondent No. 2 or induced him to enter into any agreement with a view to cheat him. The agreement was further renewed for a period of one year. It is not the case that there was no supply of goods at all as it has come on record that there was supply of 400 ton of fertilizer, may be it was far less than the required quantity. The allegations made against the appellants other than the appellant No. 7 are very vague and bald. From the material that was placed before the Magistrate, even prima facie, it cannot be said that there was conspiracy or connivance between the other appellants and the appellant No. 7. If the appellants have committed breach of agreement, it is open to respondent No. 2 to seek redressal in a competent court or forum to recover damages, if permissible in law in case he had sustained any loss. In order to constitute an offence of cheating, the intention to deceive should be in existence at the time when the inducement was made. It is necessary to show that a person had fraudulent or dishonest intention at the time of making the promise, to say that he committed an act of cheating. A mere failure to keep up promise subsequently cannot be presumed as an act leading to cheating.22. Looking to the complaint and the grievances made by the complainant therein and having regard to the agreement, it is clear that the dispute and grievances arise out of the said agreement. Clause 29 of the agreement provides for reference to arbitration in case of disputes or controversy between the parties and the said clause is wide enough to cover almost all sorts of disputes arising out of the agreement. As a matter of fact, it is also brought to our notice that the complainant issued a notice dated 3.10.1997 to the appellants invoking this arbitration clause claiming Rs. 15 lacs. It is thereafter the present complaint was filed. For the alleged breach of the agreement in relation to commercial transaction, it is open to the respondent No. 2 to proceed against the appellants for his redressal for recovery of money by way of damages for the loss caused, if any. Merely because there is an arbitration clause in the agreement, that cannot prevent criminal prosecution against the accused if an act constituting a criminal offence is made out even prima facie.The learned Magistrate, in our view, having regard to the facts stated and the legal position explained above, committed a serious error in issuing the process against the appellants 1 to 6 and 8 for offences under Sections 406, 420 andIPC when the acts alleged against them did not constitute these offences satisfying their ingredients even prima facie. In the light of the material brought on record at that stage process could have been issued only as against the appellant No. 7, that too for an offence under Section 420 IPCdoubt, exercise of inherent power under Section 482 Cr.P.C. by High Court should be limited to very extreme exceptions but in a case where ingredients of alleged offences are not satisfied even prima facie, it cannot be said that power under Section 482 Cr.P.C. should not be exercised to quash the process issued by a Magistrate. In the case of Smt. Nagawwa (supra), it is laid down that in such a case, power under Section 482 Cr.P.C. can be exercised to quash the process issued by afrom this case also, it is clear that if no offence is made out from the allegations made in the complaint, there should be no hesitation in exercising power under Section 482 Cr.P.C. to pass appropriateof inherent power is available to the High Court to give effect to any order under the Cr.P.C., or to prevent abuse of the process of any court or otherwise to secure the ends of justice. This being the position, exercise of power under Section 482 Cr.P.C. should be consistent with the scope and ambit of the same in the light of the decisions aforementioned. In appropriate cases, to prevent judicial process from being an instrument of oppression or harassment in the hands of frustrated or vindictive litigants, exercise of inherent power is not only desirable but necessary also, so that the judicial forum of court may not be allowed to be utilized for any oblique motive. When a person approaches the High Court under Section 482 Cr.P.C. to quash the very issue of process, the High Court on the facts and circumstances of a case has to exercise the powers with circumspection as stated above to really serve the purpose and object for which they are conferred.
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Commissioner of Income Tax, Bangalore Vs. Vasudeo V. Dempo | 1. Facts and circumstances giving rise to this appeals filed by the Commissioner of Wealth Tax against the assessee in appeals of 1980 and wife of the assessee in appeals of 1990 are as follows. They were governed by the Portuguese Civil Code. They were married according to custom, without having any ante-nuptial agreement to keep the property separately. For assessment years 1971-72 to 1973-74 the wealth tax officer calculated value of the moveable properties consisting mostly of shares in limited companies, deposits in bank and loan to company of the husband as belonging to the body of individuals comprising of the husband and wife. He then worked out the net wealth of the communion by deducting from it Rs 1, 50, 000 under Section 5(1)(xxiii) read with Section 5(1-A) of the Wealth Tax Act. After allowing the exemption and deducting the liabilities of the communion the net wealth of the communion was arrived and fifty per cent of it was determined as net wealth of the husband. The order was maintained in appeal. The Tribunal allowed the appeals of assessee against which the department moved an application under Section 27(1) of the Act. The reference was heard and decided by the High Court of Bombay by answering the question against the department and in favour of assessee. Against this order the department did not move any application under Section 27(3) but approached this Court under Article 136 as the High Court had relied on a decision of Bombay High Court in which certificate of fitness to appeal had been granted and the appeal was pending in this Court. The special leave petition was allowed and leave was granted by this Court after hearing learned counsel for parties. These are Appeal Nos. 1596-1598 of 1980. 2. In the other set of appeals the Wealth Tax Officer passed assessment orders for assessment years 1972-73 and 1973-74 against wife in 1973. But by the time the appeals came up for hearing before the Appellate Assistant Commissioner, the judgment of the High Court in the case of the husband had been pronounced. Consequently the appellate authority allowed the appeals. The order was maintained by the Tribunal. The applications filed under Section 27(1) before the Tribunal and Section 27(3) before the High Court were rejected. The appellant, therefore, approached this Court under Article 136 in which notice was issued as similar matter was pending. 3. All these appeals are being disposed of by this common order. 4. The question of law which was referred for the opinion of the High Court in Wealth Tax Reference No. 44 of 1977 out of which the appeals of 1980 were filed was as under Whether on the facts and in the circumstances of the case, the Tribunal was right in law in holding that each of the spouses married under the Portuguese Civil Code is entitled to deduction under Section 5 of the Wealth-Tax Act, 1957, separately ? * The High Court after elaborate discussion of provisions of law and various decisions under Income Tax Act on construction of the expression, association of persons held that even though joint rights in the properties of the spouse came into being as a result of marriage under the provisions of the Portuguese Civil Code, but in absence of any antenuptial agreement providing for their separate holding of respective property it did not follow that prospective husband and wife get married with the purpose or object or motive of constitution themselves as joint holders of the property. The bench held that under the Portuguese Civil Code the communion of the property was a necessary incidence but it could not be regarded as the object or purpose of marriage. The bench further held that in order to constitute an association of persons there should have been for purposes of the Wealth Tax Act, an association or coming together for the purposes of wealth or acquiring wealth. But the character of communion formed as a result of marriage under Portuguese Civil Code did not have that character. Consequently no association of persons could have come into being as a result of the marriage of the two assessees and they could not be assessed under Section 4(1)(b) of the Act read with Rule 2 of the Wealth Tax Rules. The bench also referred to an instruction issued by the department in 1975 inviting attention to the Boards letter dated December 12, 1969 where it was stated that a married individual in Goa, Daman and Diu who was governed by the system of community of property and who had not entered into an ante-nuptial agreement of the nature referred to therein, was required to be assessed separately in respect of his or her share of the property for purposes of the wealth tax. It was mentioned that the Board was further advised that the exemptions under Section 5 of the Wealth Tax were admissible to each one of the spouses as individual. The bench however felt that the instructions having been issued in 1975 it was debatable if the decision could be based only on it. 5. We have heard the learned counsel for parties at length. We do not propose to express any considered opinion as the learned counsel appearing for the department fairly accepted that the Act had been amended on April 1, 1989 and what was provided in the circular has now been incorporated in the Schedule itself. That lends support to the view taken by the High Court. Further the department, as is clear from the circular at all point of time, intended that the spouses in Goa should be treated as individual and granted exemption accordingly. We however consider it necessary to observe that the circular issued by the department are normally, meant to be followed and accepted by the authorities. We do not find any justification for the officers not following it nor was the department justified in pursuing the matter further in this Court. | 0[ds]The High Court after elaborate discussion of provisions of law and various decisions under Income Tax Act on construction of the expression, association of persons held that even though joint rights in the properties of the spouse came into being as a result of marriage under the provisions of the Portuguese Civil Code, but in absence of any antenuptial agreement providing for their separate holding of respective property it did not follow that prospective husband and wife get married with the purpose or object or motive of constitution themselves as joint holders of the property. The bench held that under the Portuguese Civil Code the communion of the property was a necessary incidence but it could not be regarded as the object or purpose of marriage. The bench further held that in order to constitute an association of persons there should have been for purposes of the Wealth Tax Act, an association or coming together for the purposes of wealth or acquiring wealth. But the character of communion formed as a result of marriage under Portuguese Civil Code did not have that character. Consequently no association of persons could have come into being as a result of the marriage of the two assessees and they could not be assessed under Section 4(1)(b) of the Act read with Rule 2 of the Wealth Tax Rules. The bench also referred to an instruction issued by the department in 1975 inviting attention to the Boards letter dated December 12, 1969 where it was stated that a married individual in Goa, Daman and Diu who was governed by the system of community of property and who had not entered into anof the nature referred to therein, was required to be assessed separately in respect of his or her share of the property for purposes of the wealth tax. It was mentioned that the Board was further advised that the exemptions under Section 5 of the Wealth Tax were admissible to each one of the spouses as individual. The bench however felt that the instructions having been issued in 1975 it was debatable if the decision could be based only on it5. We have heard the learned counsel for parties at length. We do not propose to express any considered opinion as the learned counsel appearing for the department fairly accepted that the Act had been amended on April 1, 1989 and what was provided in the circular has now been incorporated in the Schedule itself. That lends support to the view taken by the High Court. Further the department, as is clear from the circular at all point of time, intended that the spouses in Goa should be treated as individual and granted exemption accordingly. We however consider it necessary to observe that the circular issued by the department are normally, meant to be followed and accepted by the authorities. We do not find any justification for the officers not following it nor was the department justified in pursuing the matter further in this Court | 0 | 1,084 | 534 | ### 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:
1. Facts and circumstances giving rise to this appeals filed by the Commissioner of Wealth Tax against the assessee in appeals of 1980 and wife of the assessee in appeals of 1990 are as follows. They were governed by the Portuguese Civil Code. They were married according to custom, without having any ante-nuptial agreement to keep the property separately. For assessment years 1971-72 to 1973-74 the wealth tax officer calculated value of the moveable properties consisting mostly of shares in limited companies, deposits in bank and loan to company of the husband as belonging to the body of individuals comprising of the husband and wife. He then worked out the net wealth of the communion by deducting from it Rs 1, 50, 000 under Section 5(1)(xxiii) read with Section 5(1-A) of the Wealth Tax Act. After allowing the exemption and deducting the liabilities of the communion the net wealth of the communion was arrived and fifty per cent of it was determined as net wealth of the husband. The order was maintained in appeal. The Tribunal allowed the appeals of assessee against which the department moved an application under Section 27(1) of the Act. The reference was heard and decided by the High Court of Bombay by answering the question against the department and in favour of assessee. Against this order the department did not move any application under Section 27(3) but approached this Court under Article 136 as the High Court had relied on a decision of Bombay High Court in which certificate of fitness to appeal had been granted and the appeal was pending in this Court. The special leave petition was allowed and leave was granted by this Court after hearing learned counsel for parties. These are Appeal Nos. 1596-1598 of 1980. 2. In the other set of appeals the Wealth Tax Officer passed assessment orders for assessment years 1972-73 and 1973-74 against wife in 1973. But by the time the appeals came up for hearing before the Appellate Assistant Commissioner, the judgment of the High Court in the case of the husband had been pronounced. Consequently the appellate authority allowed the appeals. The order was maintained by the Tribunal. The applications filed under Section 27(1) before the Tribunal and Section 27(3) before the High Court were rejected. The appellant, therefore, approached this Court under Article 136 in which notice was issued as similar matter was pending. 3. All these appeals are being disposed of by this common order. 4. The question of law which was referred for the opinion of the High Court in Wealth Tax Reference No. 44 of 1977 out of which the appeals of 1980 were filed was as under Whether on the facts and in the circumstances of the case, the Tribunal was right in law in holding that each of the spouses married under the Portuguese Civil Code is entitled to deduction under Section 5 of the Wealth-Tax Act, 1957, separately ? * The High Court after elaborate discussion of provisions of law and various decisions under Income Tax Act on construction of the expression, association of persons held that even though joint rights in the properties of the spouse came into being as a result of marriage under the provisions of the Portuguese Civil Code, but in absence of any antenuptial agreement providing for their separate holding of respective property it did not follow that prospective husband and wife get married with the purpose or object or motive of constitution themselves as joint holders of the property. The bench held that under the Portuguese Civil Code the communion of the property was a necessary incidence but it could not be regarded as the object or purpose of marriage. The bench further held that in order to constitute an association of persons there should have been for purposes of the Wealth Tax Act, an association or coming together for the purposes of wealth or acquiring wealth. But the character of communion formed as a result of marriage under Portuguese Civil Code did not have that character. Consequently no association of persons could have come into being as a result of the marriage of the two assessees and they could not be assessed under Section 4(1)(b) of the Act read with Rule 2 of the Wealth Tax Rules. The bench also referred to an instruction issued by the department in 1975 inviting attention to the Boards letter dated December 12, 1969 where it was stated that a married individual in Goa, Daman and Diu who was governed by the system of community of property and who had not entered into an ante-nuptial agreement of the nature referred to therein, was required to be assessed separately in respect of his or her share of the property for purposes of the wealth tax. It was mentioned that the Board was further advised that the exemptions under Section 5 of the Wealth Tax were admissible to each one of the spouses as individual. The bench however felt that the instructions having been issued in 1975 it was debatable if the decision could be based only on it. 5. We have heard the learned counsel for parties at length. We do not propose to express any considered opinion as the learned counsel appearing for the department fairly accepted that the Act had been amended on April 1, 1989 and what was provided in the circular has now been incorporated in the Schedule itself. That lends support to the view taken by the High Court. Further the department, as is clear from the circular at all point of time, intended that the spouses in Goa should be treated as individual and granted exemption accordingly. We however consider it necessary to observe that the circular issued by the department are normally, meant to be followed and accepted by the authorities. We do not find any justification for the officers not following it nor was the department justified in pursuing the matter further in this Court.
### Response:
0
### Explanation:
The High Court after elaborate discussion of provisions of law and various decisions under Income Tax Act on construction of the expression, association of persons held that even though joint rights in the properties of the spouse came into being as a result of marriage under the provisions of the Portuguese Civil Code, but in absence of any antenuptial agreement providing for their separate holding of respective property it did not follow that prospective husband and wife get married with the purpose or object or motive of constitution themselves as joint holders of the property. The bench held that under the Portuguese Civil Code the communion of the property was a necessary incidence but it could not be regarded as the object or purpose of marriage. The bench further held that in order to constitute an association of persons there should have been for purposes of the Wealth Tax Act, an association or coming together for the purposes of wealth or acquiring wealth. But the character of communion formed as a result of marriage under Portuguese Civil Code did not have that character. Consequently no association of persons could have come into being as a result of the marriage of the two assessees and they could not be assessed under Section 4(1)(b) of the Act read with Rule 2 of the Wealth Tax Rules. The bench also referred to an instruction issued by the department in 1975 inviting attention to the Boards letter dated December 12, 1969 where it was stated that a married individual in Goa, Daman and Diu who was governed by the system of community of property and who had not entered into anof the nature referred to therein, was required to be assessed separately in respect of his or her share of the property for purposes of the wealth tax. It was mentioned that the Board was further advised that the exemptions under Section 5 of the Wealth Tax were admissible to each one of the spouses as individual. The bench however felt that the instructions having been issued in 1975 it was debatable if the decision could be based only on it5. We have heard the learned counsel for parties at length. We do not propose to express any considered opinion as the learned counsel appearing for the department fairly accepted that the Act had been amended on April 1, 1989 and what was provided in the circular has now been incorporated in the Schedule itself. That lends support to the view taken by the High Court. Further the department, as is clear from the circular at all point of time, intended that the spouses in Goa should be treated as individual and granted exemption accordingly. We however consider it necessary to observe that the circular issued by the department are normally, meant to be followed and accepted by the authorities. We do not find any justification for the officers not following it nor was the department justified in pursuing the matter further in this Court
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Arya Vyasa Sabha and Others Vs. Commissioner of Hindu Charitable and Religious Institutions and Endowments, Hyderabad and Others | SARKARIA, J.1. The appellants are societies and associations registered under the Registration of Societies Act (21 of 1860). The objects and purposes of these associations as set out in their memoranda of association included inter alia "to provide for and improve the religious and social association commerce, trade and educational need for the Arya Vyasa"; "to provide free food and education for Arya Vyasa boys and girls", etc. The appellants are maintaining various institutions pursuant to those objects. The Endowment Department of the State, included the various institutions of the appellants in the List Religious Institutions published under Section 6(c)(ii) of the Andhra Pradesh Act 17 of 1966 calling upon them to have the institutions or temples registered under Section 38 of the said Act. The appellants along with others filed writ petitions in the High Court of Andhra Pradesh challenging the validity of the notices issued by the Endowment Department, on the ground that Sections 15, 17, 27, 36 and 97 of the Andhra Act 17 of 1966 were violative of Articles 14, 19 (1)(f), 25, 26 and 31 of the Constitution.2. The questions for consideration, as formulated by the High Court in that batch of 102 writ petitions were as under :1. Whether on the facts and in the circumstances, the office of hereditary trusteeship of the petitioners is, or is not property within the meaning of Articles 19(1)(f) and 31 of the Constitution ?2. Whether all or any of the material provisions of the Act offend Articles 14, 19(1)(f), 25, 26 and 31 of the Constitution of India ?3. Whether the Act is applicable to all or any of the petitioners who claim to be private institution or religious denominations or societies registered under the Societies Registration Act ?4. Whether the institutions or endowments of the petitioner are private or public in character ?5. Whether the Arya Vyasa community or Lingayat community and the institution in question founded by them are religious denominations within the meaning of Article 26 ?3. On the first question, the High Court was of the view that the office of the hereditary trusteeship was property within the meaning of Article 19(1)(f). Regarding the second it held that none of the impugned provisions were violative of Articles 14, 19(1)(f), 25, 26 and 31 the Constitution. The High Court, however, did not decide the question as to whether the petitioner - Arya Vyasa - is or is not a religious denomination or any section thereof within the meaning of Article 26 of the Constitution. In regard to questions 3 and 5, it observed :Likewise, whether a particular religious or charitable institution is or is not a religious denomination or any section thereof within the meaning of Article 26 of the Constitution, is also a question of fact or, in any event, a mixed question of fact and law which can be more satisfactorily and effectively adjudicated upon in a competent civil court. Whether the Vyasa and Lingayat communities and the institutions, religious or charitable, founded by the members of those communities are religious denominations or not, are questions which should be determined in a proper forum. Resort to the writ remedy in the first instance is inappropriate and misconceived. The petitioners who claim that their institutions are religious denominations are at liberty to establish the same in a competent civil court.4. In the result, the High Court dismissed all the writ petitions. Some of the writ petitioners appealed to this Court on certificate. Their appeals were dismissed on December 2, 1970 by a Bench of five learned Judges. That decision is reported under the cause title, Kakinada Annadana Samajam v. Commissioner of Hindu Religious and Charitable Endowments, Hyderabad ((1970) 3 SCC 359 ).5. In the earlier batch of appeals, this Court also left question 3 and 5 undecided leaving the appellants at liberty to agitate the same in a proper forum.6. Now in this second batch of appeals on certificate arising out of the same judgment, an attempt has been made to agitate questions 3 and 5 only. It is contended that the High Court had been made some observations indicating that the members of the appellants do not belong to a religious denomination. It is submitted that this finding is incorrect and would debar the appellants from reagitating these questions in any other forum.7. The contention does not appear to be correct. These questions were left open and undetermined because the High Court felt, and we think rightly, that they were disputed questions of fact and could not be appropriately determined in proceedings under Article 226. The writ petitioners were left at liberty to establish their claim in regard to their institutions being religious denominations in a competent civil Court. This position taken by the High Court was endorsed by this Court. We therefore decline to go into these questions. We would only reiterate what was said then : [p. 367, para 13]A faint attempt was made to sustain the attack under the Articles 14 and 26(d) of the Constitution but finally hardly any arguments were addressed worth noticing on these points .....The High Court has rightly left open the question whether the Turnews Choultry is a private or a public charitable institution. This the Municipal Council is entitled to agitate before the Deputy Commissioner under Section 77 of the Act ... Before the High Court some of the writ petitioners had claimed that their institutions were religious denominations within Article 26 and were therefore entitled to the protection guaranteed by that article.The High Court has, quite rightly, observed that these matters should be agitated in a proper forum and they have been left open for determination if and when so desired. This indisputably was the correct course to follow. | 0[ds]6. Now in this second batch of appeals on certificate arising out of the same judgment, an attempt has been made to agitate questions 3 and 5 only. It is contended that the High Court had been made some observations indicating that the members of the appellants do not belong to a religious denomination. It is submitted that this finding is incorrect and would debar the appellants from reagitating these questions in any other forum.7. The contention does not appear to be correct. These questions were left open and undetermined because the High Court felt, and we think rightly, that they were disputed questions of fact and could not be appropriately determined in proceedings under Article 226. The writ petitioners were left at liberty to establish their claim in regard to their institutions being religious denominations in a competent civil Court. This position taken by the High Court was endorsed by this Court. We therefore decline to go into these questions. We would only reiterate what was said then : [p. 367, para 13]A faint attempt was made to sustain the attack under the Articles 14 and 26(d) of the Constitution but finally hardly any arguments were addressed worth noticing on these points .....The High Court has rightly left open the question whether the Turnews Choultry is a private or a public charitable institution. This the Municipal Council is entitled to agitate before the Deputy Commissioner under Section 77 of the Act ... Before the High Court some of the writ petitioners had claimed that their institutions were religious denominations within Article 26 and were therefore entitled to the protection guaranteed by that article.The High Court has, quite rightly, observed that these matters should be agitated in a proper forum and they have been left open for determination if and when so desired. This indisputably was the correct course to follow. | 0 | 1,093 | 340 | ### 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:
SARKARIA, J.1. The appellants are societies and associations registered under the Registration of Societies Act (21 of 1860). The objects and purposes of these associations as set out in their memoranda of association included inter alia "to provide for and improve the religious and social association commerce, trade and educational need for the Arya Vyasa"; "to provide free food and education for Arya Vyasa boys and girls", etc. The appellants are maintaining various institutions pursuant to those objects. The Endowment Department of the State, included the various institutions of the appellants in the List Religious Institutions published under Section 6(c)(ii) of the Andhra Pradesh Act 17 of 1966 calling upon them to have the institutions or temples registered under Section 38 of the said Act. The appellants along with others filed writ petitions in the High Court of Andhra Pradesh challenging the validity of the notices issued by the Endowment Department, on the ground that Sections 15, 17, 27, 36 and 97 of the Andhra Act 17 of 1966 were violative of Articles 14, 19 (1)(f), 25, 26 and 31 of the Constitution.2. The questions for consideration, as formulated by the High Court in that batch of 102 writ petitions were as under :1. Whether on the facts and in the circumstances, the office of hereditary trusteeship of the petitioners is, or is not property within the meaning of Articles 19(1)(f) and 31 of the Constitution ?2. Whether all or any of the material provisions of the Act offend Articles 14, 19(1)(f), 25, 26 and 31 of the Constitution of India ?3. Whether the Act is applicable to all or any of the petitioners who claim to be private institution or religious denominations or societies registered under the Societies Registration Act ?4. Whether the institutions or endowments of the petitioner are private or public in character ?5. Whether the Arya Vyasa community or Lingayat community and the institution in question founded by them are religious denominations within the meaning of Article 26 ?3. On the first question, the High Court was of the view that the office of the hereditary trusteeship was property within the meaning of Article 19(1)(f). Regarding the second it held that none of the impugned provisions were violative of Articles 14, 19(1)(f), 25, 26 and 31 the Constitution. The High Court, however, did not decide the question as to whether the petitioner - Arya Vyasa - is or is not a religious denomination or any section thereof within the meaning of Article 26 of the Constitution. In regard to questions 3 and 5, it observed :Likewise, whether a particular religious or charitable institution is or is not a religious denomination or any section thereof within the meaning of Article 26 of the Constitution, is also a question of fact or, in any event, a mixed question of fact and law which can be more satisfactorily and effectively adjudicated upon in a competent civil court. Whether the Vyasa and Lingayat communities and the institutions, religious or charitable, founded by the members of those communities are religious denominations or not, are questions which should be determined in a proper forum. Resort to the writ remedy in the first instance is inappropriate and misconceived. The petitioners who claim that their institutions are religious denominations are at liberty to establish the same in a competent civil court.4. In the result, the High Court dismissed all the writ petitions. Some of the writ petitioners appealed to this Court on certificate. Their appeals were dismissed on December 2, 1970 by a Bench of five learned Judges. That decision is reported under the cause title, Kakinada Annadana Samajam v. Commissioner of Hindu Religious and Charitable Endowments, Hyderabad ((1970) 3 SCC 359 ).5. In the earlier batch of appeals, this Court also left question 3 and 5 undecided leaving the appellants at liberty to agitate the same in a proper forum.6. Now in this second batch of appeals on certificate arising out of the same judgment, an attempt has been made to agitate questions 3 and 5 only. It is contended that the High Court had been made some observations indicating that the members of the appellants do not belong to a religious denomination. It is submitted that this finding is incorrect and would debar the appellants from reagitating these questions in any other forum.7. The contention does not appear to be correct. These questions were left open and undetermined because the High Court felt, and we think rightly, that they were disputed questions of fact and could not be appropriately determined in proceedings under Article 226. The writ petitioners were left at liberty to establish their claim in regard to their institutions being religious denominations in a competent civil Court. This position taken by the High Court was endorsed by this Court. We therefore decline to go into these questions. We would only reiterate what was said then : [p. 367, para 13]A faint attempt was made to sustain the attack under the Articles 14 and 26(d) of the Constitution but finally hardly any arguments were addressed worth noticing on these points .....The High Court has rightly left open the question whether the Turnews Choultry is a private or a public charitable institution. This the Municipal Council is entitled to agitate before the Deputy Commissioner under Section 77 of the Act ... Before the High Court some of the writ petitioners had claimed that their institutions were religious denominations within Article 26 and were therefore entitled to the protection guaranteed by that article.The High Court has, quite rightly, observed that these matters should be agitated in a proper forum and they have been left open for determination if and when so desired. This indisputably was the correct course to follow.
### Response:
0
### Explanation:
6. Now in this second batch of appeals on certificate arising out of the same judgment, an attempt has been made to agitate questions 3 and 5 only. It is contended that the High Court had been made some observations indicating that the members of the appellants do not belong to a religious denomination. It is submitted that this finding is incorrect and would debar the appellants from reagitating these questions in any other forum.7. The contention does not appear to be correct. These questions were left open and undetermined because the High Court felt, and we think rightly, that they were disputed questions of fact and could not be appropriately determined in proceedings under Article 226. The writ petitioners were left at liberty to establish their claim in regard to their institutions being religious denominations in a competent civil Court. This position taken by the High Court was endorsed by this Court. We therefore decline to go into these questions. We would only reiterate what was said then : [p. 367, para 13]A faint attempt was made to sustain the attack under the Articles 14 and 26(d) of the Constitution but finally hardly any arguments were addressed worth noticing on these points .....The High Court has rightly left open the question whether the Turnews Choultry is a private or a public charitable institution. This the Municipal Council is entitled to agitate before the Deputy Commissioner under Section 77 of the Act ... Before the High Court some of the writ petitioners had claimed that their institutions were religious denominations within Article 26 and were therefore entitled to the protection guaranteed by that article.The High Court has, quite rightly, observed that these matters should be agitated in a proper forum and they have been left open for determination if and when so desired. This indisputably was the correct course to follow.
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Union of India Vs. Madras Telephones Scheduled Castes and Scheduled Tribes Social Welfare Association | 1. Though the respondents are served, no one appears for them. We have heard Shri R. Venugopal Reddy, learned counsel for the appellant - Union of India. 2. In the Posts and Telegraphs Department, there are two methods of promotion from the post of Junior Engineer to the post of Assistant Engineer. Two-thirds of the posts are filled on the basis of Departmental Qualifying Examination while the remaining one-third are filled on the basis of a Departmental Competitive Examination. We are concerned in this appeal with the first mentioned category and the question is how should the eligibility list of candidates, who have passed the Departmental Qualifying Examination for consideration of the Departmental Promotion Committee be prepared. Clause 6 of Appendix I in the Schedule to the Rules to Telegraph Engineering Service (Class II) Recruitment Rules, 1966 provides "6. The eligibility lists of the candidates who have passed the Departmental Qualifying Examination for consideration of the Departmental Promotion Committee, shall be prepared in accordance with the instructions, as may be issued by the Government from time to time." * 3. It is stated that pursuant to the said clause 6, instructions have been issued by the Government of India in its Memorandum dated 28-6-1966 Insofar as is relevant, it reads as follows "In pursuance of para 6 of Appendix I of the Government of India, Department of Communication, P&T Board Notification No. 108/11/49-STA dated the 15th June, 1966 it has been decided that, the eligibility list for consideration by the Departmental Promotion Committee for a promotion to Telegraph Engineering Service, Class II, from amongst the Engineering Supervisors, Wireless Supervisors and ex- company officials, who qualify in the prescribed Telegraph Engineering Service, Class II Promotional Examination, shall be prepared in the following manner(i) Separate lists shall be prepared for each year of recruitment/appointment, subject to the provisions in clauses (vi) and (vii) below." 4. From the aforesaid clause read with instructions, it is clear that the eligibility lists have to be prepared according to the year of recruitment/appointment. The respondents case, before the Tribunal, however, was that the said lists should be prepared not with reference to the year of recruitment/appointment but with reference to the year of confirmation. The Tribunal neither accepted their statement nor did it uphold the Departments case but directed that these lists should be prepared on the basis of the year of the passing of the Departmental Qualifying Examination and not on the basis of the year of recruitment/appointment. In our opinion what the Tribunal has done really amounts to rewriting the rule which should not have been done by it. | 1[ds]4. From the aforesaid clause read with instructions, it is clear that the eligibility lists have to be prepared according to the year of recruitment/appointment. The respondents case, before the Tribunal, however, was that the said lists should be prepared not with reference to the year of recruitment/appointment but with reference to the year of confirmation. The Tribunal neither accepted their statement nor did it uphold the Departments case but directed that these lists should be prepared on the basis of the year of the passing of the Departmental Qualifying Examination and not on the basis of the year of recruitment/appointment. In our opinion what the Tribunal has done really amounts to rewriting the rule which should not have been done by it. | 1 | 491 | 136 | ### 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:
1. Though the respondents are served, no one appears for them. We have heard Shri R. Venugopal Reddy, learned counsel for the appellant - Union of India. 2. In the Posts and Telegraphs Department, there are two methods of promotion from the post of Junior Engineer to the post of Assistant Engineer. Two-thirds of the posts are filled on the basis of Departmental Qualifying Examination while the remaining one-third are filled on the basis of a Departmental Competitive Examination. We are concerned in this appeal with the first mentioned category and the question is how should the eligibility list of candidates, who have passed the Departmental Qualifying Examination for consideration of the Departmental Promotion Committee be prepared. Clause 6 of Appendix I in the Schedule to the Rules to Telegraph Engineering Service (Class II) Recruitment Rules, 1966 provides "6. The eligibility lists of the candidates who have passed the Departmental Qualifying Examination for consideration of the Departmental Promotion Committee, shall be prepared in accordance with the instructions, as may be issued by the Government from time to time." * 3. It is stated that pursuant to the said clause 6, instructions have been issued by the Government of India in its Memorandum dated 28-6-1966 Insofar as is relevant, it reads as follows "In pursuance of para 6 of Appendix I of the Government of India, Department of Communication, P&T Board Notification No. 108/11/49-STA dated the 15th June, 1966 it has been decided that, the eligibility list for consideration by the Departmental Promotion Committee for a promotion to Telegraph Engineering Service, Class II, from amongst the Engineering Supervisors, Wireless Supervisors and ex- company officials, who qualify in the prescribed Telegraph Engineering Service, Class II Promotional Examination, shall be prepared in the following manner(i) Separate lists shall be prepared for each year of recruitment/appointment, subject to the provisions in clauses (vi) and (vii) below." 4. From the aforesaid clause read with instructions, it is clear that the eligibility lists have to be prepared according to the year of recruitment/appointment. The respondents case, before the Tribunal, however, was that the said lists should be prepared not with reference to the year of recruitment/appointment but with reference to the year of confirmation. The Tribunal neither accepted their statement nor did it uphold the Departments case but directed that these lists should be prepared on the basis of the year of the passing of the Departmental Qualifying Examination and not on the basis of the year of recruitment/appointment. In our opinion what the Tribunal has done really amounts to rewriting the rule which should not have been done by it.
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4. From the aforesaid clause read with instructions, it is clear that the eligibility lists have to be prepared according to the year of recruitment/appointment. The respondents case, before the Tribunal, however, was that the said lists should be prepared not with reference to the year of recruitment/appointment but with reference to the year of confirmation. The Tribunal neither accepted their statement nor did it uphold the Departments case but directed that these lists should be prepared on the basis of the year of the passing of the Departmental Qualifying Examination and not on the basis of the year of recruitment/appointment. In our opinion what the Tribunal has done really amounts to rewriting the rule which should not have been done by it.
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Ramesh Chand And Others Vs. State Of Uttar Pradesh And Others | point and the reply thereto were heard, Mr. Shanti Bhushan, the learned counsel for one of the appellants, submitted that he may be permitted to raise the question of validity of Section 68-C. He submitted that if the amended (sic amending) Sections 7 and 16 of the U.P. Act have the effect of modifying Section 68-C and Section 68-C itself would not be valid. According to the learned counsel the requirement of Section 68-C is that before a scheme is prepared and published the State Transport Undertaking must be of the opinion that for the purpose of providing an efficient, adequate, economical and properly co-ordinated road transport service, it is necessary in the public sector that the road transport services should be run and operated by the State Transport Undertaking. In order to satisfy the requirements the learned counsel submitted that the scheme should give (1) particulars of the nature of the services proposed to be rendered, (2) area or route proposed to be covered and such other particulars respecting thereto as may be prescribed. The first two requirements with which we are concerned are under Section 68-C. Relying on a decision of this Court in B. H. Aswathanarayan Singh v. State of Mysore ((1966) 1 SCR 87 : AIR 1965 SC 1848 : (1965) 2 SCJ 824), the learned counsel submitted that if the requirement to specification of the number of services to be provided in the draft scheme is dispensed with, the particulars of the nature of services proposed to be rendered as required in Section 68-C would be lacking. The learned counsel referred to page 93 of the case ((1966) 1 SCR 87 : AIR 1965 SC 1848 : (1965) 2 SCJ 824) wherein the Court observed thatWhen Section 68-C provides for giving particulars of the nature of the services proposed to be rendered, the intention is that such details should be given as are necessary to enable the objectors to make their objections. We do not think that these details would necessarily consist of the precise number of vehicles and trips to be used on each route. We see no difficulty in holding that the details of the nature of services proposed to be rendered may not only be in the form of a precise number of vehicles and trips but also in the form of a minimum and maximum number of vehicles and trips on each route. Strong reliance is placed on the requirement that the details of the nature of services should not only be in the form of precise number of vehicles and trips but also in the form of minimum and maximum number of vehicles and trips on each route. But this statement is explained in the next two sentences where the court stated :"Furnishing of maximum and minimum number of vehicles and trips for each route would also in our opinion satisfy the requirement that particulars should be furnished of the services proposed to be rendered. Further the indication of minimum and maximum number of vehicles and trips for each route would give the necessary information to enable the objectors to oppose the scheme even with reference to the adequacy of the services proposed to be rendered. We do not think that the appellants are right in submitting that when the word "particulars" is used in that part of the section, it can only be satisfied if the exact number of vehicles and trips for each route is specified and that there is no other way of satisfying the requirement implicit in the use of the word "particulars". It is thus clear that the exact number of vehicles and trips for each route need not be given and all that Section 7 of the amended Act provides is that the draft scheme as well as the approved scheme need not specify the number of services. The decision relied on by the learned counsel makes it clear that the number of vehicles and trips for each route need not be specified. We are therefore unable to accept the contention that the failure to specify the number of services would invalidate the draft scheme or the approved scheme. 10. The learned counsel Mr. Shanti Bhushan submitted that in any event as the maximum or minimum number of buses, vehicles and trips have not been mentioned, the scheme should be held up inoperative. This contention again is not factually sustainable as the impugned scheme under Section 68-C which was notified in the U.P. Gazette on December 4, 1961 gave the required particulars. Clause 3 of the scheme stated "adequate number of State Road Transport passenger services according to traffic requirements are to be provided on the route mentioned in clause (2) above. The provision of transport service otherwise than under the scheme is prohibited". Clause 2 provided that State Road Transport Passenger services shall be provided on the inter-State route Agra-Dholpur of Agra Region. Clause 6 provided that the transport vehicles which may be used on the route indicated in clause (2) above, shall be of country type and their carrying capacity shall be 30 to 45 seats. Clause 7 mentions the permits which have been cancelled. A reading of the scheme would indicate that transport vehicles and services will be provided on the routes taken over by country type vehicles with 30 to 45 seats capacity. There is no material to show that any of the operators or others entitled to object to the scheme raised this objection before the scheme was approved in the year 1963. When specifically asked whether such an objection was taken to the draft scheme, the learned counsel for the appellants were unable to say that the objection was taken. We feel it is futile for them to raise the plea after a lapse of about 15 years. There is no substance in any of the contentions raised. One cannot but express amazement at the tenacity of the operators in stalling the scheme for nationalisation of public transport. | 0[ds]8. That this is the object is put beyond all doubt by introduction of the validating section, Section 16, which provides that in any scheme prepared or published under Section 68-C or approved or modified under Section 68-D of the Principal Act shall not be deemed to be invalid on the ground of number of services to be provided being not specified therein. We are satisfied that Sections 7 and 16 of the Act have validly provided that the specification of the number of services is not and shall be deemed to have never been an essential requirement in scheme prepared and published under Section 68-C or approved or modified and published under Section 68-D. The plea of the learned counsel therefore fails. In this view we hold that decision in Shashi Kant Rai v. Regional Transport Authority (AIR 1978 All 68 ) is erroneously decidedWe do not think that these details would necessarily consist of the precise number of vehicles and trips to be used on each route. We see no difficulty in holding that the details of the nature of services proposed to be rendered may not only be in the form of a precise number of vehicles and trips but also in the form of a minimum and maximum number of vehicles and trips on each routeIt is thus clear that the exact number of vehicles and trips for each route need not be given and all that Section 7 of the amended Act provides is that the draft scheme as well as the approved scheme need not specify the number of services. The decision relied on by the learned counsel makes it clear that the number of vehicles and trips for each route need not be specified. We are therefore unable to accept the contention that the failure to specify the number of services would invalidate the draft scheme or the approved schemeThis contention again is not factually sustainable as the impugned scheme under Section 68-C which was notified in the U.P. Gazette on December 4, 1961 gave the required particulars. Clause 3 of the scheme stated "adequate number of State Road Transport passenger services according to traffic requirements are to be provided on the route mentioned in clause (2) above. The provision of transport service otherwise than under the scheme is prohibited". Clause 2 provided that State Road Transport Passenger services shall be provided on the inter-State route Agra-Dholpur of Agra Region. Clause 6 provided that the transport vehicles which may be used on the route indicated in clause (2) above, shall be of country type and their carrying capacity shall be 30 to 45 seats. Clause 7 mentions the permits which have been cancelled. A reading of the scheme would indicate that transport vehicles and services will be provided on the routes taken over by country type vehicles with 30 to 45 seats capacity. There is no material to show that any of the operators or others entitled to object to the scheme raised this objection before the scheme was approved in the year 1963. When specifically asked whether such an objection was taken to the draft scheme, the learned counsel for the appellants were unable to say that the objection was taken. We feel it is futile for them to raise the plea after a lapse of about 15 years. There is no substance in any of the contentions raised. One cannot but express amazement at the tenacity of the operators in stalling the scheme for nationalisation of public transport. | 0 | 2,526 | 624 | ### Instruction:
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point and the reply thereto were heard, Mr. Shanti Bhushan, the learned counsel for one of the appellants, submitted that he may be permitted to raise the question of validity of Section 68-C. He submitted that if the amended (sic amending) Sections 7 and 16 of the U.P. Act have the effect of modifying Section 68-C and Section 68-C itself would not be valid. According to the learned counsel the requirement of Section 68-C is that before a scheme is prepared and published the State Transport Undertaking must be of the opinion that for the purpose of providing an efficient, adequate, economical and properly co-ordinated road transport service, it is necessary in the public sector that the road transport services should be run and operated by the State Transport Undertaking. In order to satisfy the requirements the learned counsel submitted that the scheme should give (1) particulars of the nature of the services proposed to be rendered, (2) area or route proposed to be covered and such other particulars respecting thereto as may be prescribed. The first two requirements with which we are concerned are under Section 68-C. Relying on a decision of this Court in B. H. Aswathanarayan Singh v. State of Mysore ((1966) 1 SCR 87 : AIR 1965 SC 1848 : (1965) 2 SCJ 824), the learned counsel submitted that if the requirement to specification of the number of services to be provided in the draft scheme is dispensed with, the particulars of the nature of services proposed to be rendered as required in Section 68-C would be lacking. The learned counsel referred to page 93 of the case ((1966) 1 SCR 87 : AIR 1965 SC 1848 : (1965) 2 SCJ 824) wherein the Court observed thatWhen Section 68-C provides for giving particulars of the nature of the services proposed to be rendered, the intention is that such details should be given as are necessary to enable the objectors to make their objections. We do not think that these details would necessarily consist of the precise number of vehicles and trips to be used on each route. We see no difficulty in holding that the details of the nature of services proposed to be rendered may not only be in the form of a precise number of vehicles and trips but also in the form of a minimum and maximum number of vehicles and trips on each route. Strong reliance is placed on the requirement that the details of the nature of services should not only be in the form of precise number of vehicles and trips but also in the form of minimum and maximum number of vehicles and trips on each route. But this statement is explained in the next two sentences where the court stated :"Furnishing of maximum and minimum number of vehicles and trips for each route would also in our opinion satisfy the requirement that particulars should be furnished of the services proposed to be rendered. Further the indication of minimum and maximum number of vehicles and trips for each route would give the necessary information to enable the objectors to oppose the scheme even with reference to the adequacy of the services proposed to be rendered. We do not think that the appellants are right in submitting that when the word "particulars" is used in that part of the section, it can only be satisfied if the exact number of vehicles and trips for each route is specified and that there is no other way of satisfying the requirement implicit in the use of the word "particulars". It is thus clear that the exact number of vehicles and trips for each route need not be given and all that Section 7 of the amended Act provides is that the draft scheme as well as the approved scheme need not specify the number of services. The decision relied on by the learned counsel makes it clear that the number of vehicles and trips for each route need not be specified. We are therefore unable to accept the contention that the failure to specify the number of services would invalidate the draft scheme or the approved scheme. 10. The learned counsel Mr. Shanti Bhushan submitted that in any event as the maximum or minimum number of buses, vehicles and trips have not been mentioned, the scheme should be held up inoperative. This contention again is not factually sustainable as the impugned scheme under Section 68-C which was notified in the U.P. Gazette on December 4, 1961 gave the required particulars. Clause 3 of the scheme stated "adequate number of State Road Transport passenger services according to traffic requirements are to be provided on the route mentioned in clause (2) above. The provision of transport service otherwise than under the scheme is prohibited". Clause 2 provided that State Road Transport Passenger services shall be provided on the inter-State route Agra-Dholpur of Agra Region. Clause 6 provided that the transport vehicles which may be used on the route indicated in clause (2) above, shall be of country type and their carrying capacity shall be 30 to 45 seats. Clause 7 mentions the permits which have been cancelled. A reading of the scheme would indicate that transport vehicles and services will be provided on the routes taken over by country type vehicles with 30 to 45 seats capacity. There is no material to show that any of the operators or others entitled to object to the scheme raised this objection before the scheme was approved in the year 1963. When specifically asked whether such an objection was taken to the draft scheme, the learned counsel for the appellants were unable to say that the objection was taken. We feel it is futile for them to raise the plea after a lapse of about 15 years. There is no substance in any of the contentions raised. One cannot but express amazement at the tenacity of the operators in stalling the scheme for nationalisation of public transport.
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### Explanation:
8. That this is the object is put beyond all doubt by introduction of the validating section, Section 16, which provides that in any scheme prepared or published under Section 68-C or approved or modified under Section 68-D of the Principal Act shall not be deemed to be invalid on the ground of number of services to be provided being not specified therein. We are satisfied that Sections 7 and 16 of the Act have validly provided that the specification of the number of services is not and shall be deemed to have never been an essential requirement in scheme prepared and published under Section 68-C or approved or modified and published under Section 68-D. The plea of the learned counsel therefore fails. In this view we hold that decision in Shashi Kant Rai v. Regional Transport Authority (AIR 1978 All 68 ) is erroneously decidedWe do not think that these details would necessarily consist of the precise number of vehicles and trips to be used on each route. We see no difficulty in holding that the details of the nature of services proposed to be rendered may not only be in the form of a precise number of vehicles and trips but also in the form of a minimum and maximum number of vehicles and trips on each routeIt is thus clear that the exact number of vehicles and trips for each route need not be given and all that Section 7 of the amended Act provides is that the draft scheme as well as the approved scheme need not specify the number of services. The decision relied on by the learned counsel makes it clear that the number of vehicles and trips for each route need not be specified. We are therefore unable to accept the contention that the failure to specify the number of services would invalidate the draft scheme or the approved schemeThis contention again is not factually sustainable as the impugned scheme under Section 68-C which was notified in the U.P. Gazette on December 4, 1961 gave the required particulars. Clause 3 of the scheme stated "adequate number of State Road Transport passenger services according to traffic requirements are to be provided on the route mentioned in clause (2) above. The provision of transport service otherwise than under the scheme is prohibited". Clause 2 provided that State Road Transport Passenger services shall be provided on the inter-State route Agra-Dholpur of Agra Region. Clause 6 provided that the transport vehicles which may be used on the route indicated in clause (2) above, shall be of country type and their carrying capacity shall be 30 to 45 seats. Clause 7 mentions the permits which have been cancelled. A reading of the scheme would indicate that transport vehicles and services will be provided on the routes taken over by country type vehicles with 30 to 45 seats capacity. There is no material to show that any of the operators or others entitled to object to the scheme raised this objection before the scheme was approved in the year 1963. When specifically asked whether such an objection was taken to the draft scheme, the learned counsel for the appellants were unable to say that the objection was taken. We feel it is futile for them to raise the plea after a lapse of about 15 years. There is no substance in any of the contentions raised. One cannot but express amazement at the tenacity of the operators in stalling the scheme for nationalisation of public transport.
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Munshi & Ors Vs. Richpal & Ors | Pepsu, the case, as rightly observed by the court of first instance, was governed by sections 7 and 7A of the Pepsu Tenancy and Agricultural Lands Act, 1955, which in view of section 4 of that Act have an overriding effect and provide as under:--"4. Act to over ride other laws--Save, as otherwise expressly provided in this Act, the provisions of this Act shall have effect notwithstanding anything inconsistent therewith contained in any other law for the time being in force or any instrument having effect by virtue of any such law or any usage, agreement, settlement, grant, sanad or any decree or order of any court or other authority.7. Termination of tenancy.--(1) No tenancy shall be terminated except in accordance with the provisions of this Act or except of any of the following grounds, namely:--(b) that the tenant has failed to pay rent within a period of six months after it falls due;Provided that no tenant shall be ejected under this clause unless he has been afforded an opportunity to pay the arrears of rent within a further period of six months from the date of the decree or order directing his ejectment and he had failed to pay such arrears during that period;(c) that the tenant, not being a widow, a minor, an unmarried woman, a member of the Armed Forces of the Union or a person incapable of cultivating land by reason of physical or mental infirmity has after commencement of the Presidents Act sublet without the consent in writing of the landowner, the land comprising his tenancy or any part thereof;(d) that the tenant has, without sufficient cause, failed to cultivate personally such land in the manner and to the extent customary in the locality in Which such land is situated;(e) that the tenant has used such land or any part thereof in a manner which is likely to render the l and unfit for the purpose for which it was leased to him;(f) that the tenant, on demand in writing by the landowner, has refused to execute a kabuliyat agreeing to pay rent in respect of his tenancy in accordance with the provisions of sections 9 and 10.(2)..............................7A. Additional grounds for termination of tenancy in certain cases.--(1) Subject to the provisions of sub-sections (2) and (3), a tenancy subsisting at the commencement of the Pepsu Tenancy and Agricultural Lands (Second Amendment) Act, 1956 may be terminated on the following grounds in addition to the grounds specified in section 7, namely:-(a) that the land comprising the tenancy has been reserved by the land-owner for his personal cultivation in accordance with the provisions of Chapter II:(b) that the landowner owns thirty standard acres or less of land and the land falls within the permissible limit;Provided that no tenant shall be ejected under this subsection-(i) from any area of land if the area under the personal cultivation of the tenant does not exceed five standard acres,(ii) from an area of five standard acres, if the area under the personal cultivation of the tenant exceeds five standards acres. until he is allowed by the State Government alternative land of equivalent value in standard acres.(2) No tenant, who immediately preceding the commencement of the Presidents Act has held any land continuously for a period of twelve years or more under the same land-owner or his predecessor in title, shah be ejected on the grounds specified in sub-section (1)-(a) from any area of land, if the area under the personal cultivation of the tenant does not exceed fifteen standards acres, or(b) from an area of fifteen standards acres, if the area under the personal cultivation of the tenant exceeds fifteen standard acres;provided that nothing in this sub-section shall apply to the tenant of a landowner who both, at the commencement of the tenancy and the commencement of the Presidents Act, was a widow, a minor, an unmarried woman, a member of the Armed Forces of the Union or a person incapable of cultivating land by reason of physical or mental infirmity.Explanation. In computing the period of twelve years, the period during which any land has been held under the same land-owner or his predecessor in title by the father, brother or son of the tenant shall be included.(3) For the purpose of computing under sub-sections (1) and (2) the area of land under the personal cultivation of a tenant, any area of land owned by the tenant and under his personal cultivation shall be included."2. It cannot, in view of the above noted provisions of law and the decision of this Court in Rikh Ram & Anr. v. Ram Kumar & Ors. ([1975] 2 S.C.C. 318.) be disputed that an order or decree directing eviction of a tenant is necessary to be obtained to bring about a determination of the tenancy. A fortiori, a person who has been in possession of land with the right to possess it continues to hold the land and to be a tenant in spite of having been wrongfully put out of possession especially if he has initiated proceedings for recovery of possession. As in the instant case, it has been concurrently found by all the courts below that the plaintiff-pre-emptor was a tenant of the suit land on the date of sale and it has not been alleged much less proved that his tenancy was, thereafter determined or terminated on any of the grounds set out in sections 7 and 7A of the Pepsu Tenancy and Agricultural Lands Act, 1955 and he h ad admittedly applied to the Tehsildar for restoration of his possession, he cannot but be deemed to be a tenant of the suit land on the date of the sale as well as on all other material dates and thus fully qualified and entitled to pre-empt the land. We must fairly state that our judgment is based on the provisions of law brought to our notice by counsel and our conclusion is confined to the interpretation of the Acts referred to above.3. | 0[ds]Though the l earned counsel for the appellants cited a few cases in support of his contention but did not unfortunately bring to our notice the decision of this Court in Dindyal &Anr. v. Raja Ram ([1971] 1 S.C.R. 298.) which may in an appropriate case require reconsideration by a larger bench of this Court, we think, he cannot be allowed canvass the aforesaid point. A reference to the record of the case shows that the point now sought to be agitated before us was not raised by the appellants either in their written statement or in the grounds of the three appeals preferred by them before the courts below. All that appeals from the record to have. been urged by them in the grounds of the aforesaid appeals was that the evidence had not been properly appraised and that in the absence of any lease deed in his favour or any receipt evidencing payment of rent by him to the vendor, mere entries in the khasra girdawaries were not enough to establish that the plaintiff-pre-emptor was a tenant of the suit land under the vendor at the time of thecannot, in view of the above noted provisions of law and the decision of this Court in Rikh Ram & Anr. v. Ram Kumar & Ors. ([1975] 2 S.C.C. 318.) be disputed that an order or decree directing eviction of a tenant is necessary to be obtained to bring about a determination of the tenancy. A fortiori, a person who has been in possession of land with the right to possess it continues to hold the land and to be a tenant in spite of having been wrongfully put out of possession especially if he has initiated proceedings for recovery of possession. As in the instant case, it has been concurrently found by all the courts below that the plaintiff-pre-emptor was a tenant of the suit land on the date of sale and it has not been alleged much less proved that his tenancy was, thereafter determined or terminated on any of the grounds set out in sections 7 and 7A ofthe Pepsu Tenancy and Agricultural Lands Act, 1955 and he h ad admittedly applied to the Tehsildar for restoration of his possession, he cannot but be deemed to be a tenant of the suit land on the date of the sale as well as on all other material dates and thus fully qualified and entitled to pre-empt the land. We must fairly state that our judgment is based on the provisions of law brought to our notice by counsel and our conclusion is confined to the interpretation of the Acts referred to above. | 0 | 2,313 | 482 | ### 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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Pepsu, the case, as rightly observed by the court of first instance, was governed by sections 7 and 7A of the Pepsu Tenancy and Agricultural Lands Act, 1955, which in view of section 4 of that Act have an overriding effect and provide as under:--"4. Act to over ride other laws--Save, as otherwise expressly provided in this Act, the provisions of this Act shall have effect notwithstanding anything inconsistent therewith contained in any other law for the time being in force or any instrument having effect by virtue of any such law or any usage, agreement, settlement, grant, sanad or any decree or order of any court or other authority.7. Termination of tenancy.--(1) No tenancy shall be terminated except in accordance with the provisions of this Act or except of any of the following grounds, namely:--(b) that the tenant has failed to pay rent within a period of six months after it falls due;Provided that no tenant shall be ejected under this clause unless he has been afforded an opportunity to pay the arrears of rent within a further period of six months from the date of the decree or order directing his ejectment and he had failed to pay such arrears during that period;(c) that the tenant, not being a widow, a minor, an unmarried woman, a member of the Armed Forces of the Union or a person incapable of cultivating land by reason of physical or mental infirmity has after commencement of the Presidents Act sublet without the consent in writing of the landowner, the land comprising his tenancy or any part thereof;(d) that the tenant has, without sufficient cause, failed to cultivate personally such land in the manner and to the extent customary in the locality in Which such land is situated;(e) that the tenant has used such land or any part thereof in a manner which is likely to render the l and unfit for the purpose for which it was leased to him;(f) that the tenant, on demand in writing by the landowner, has refused to execute a kabuliyat agreeing to pay rent in respect of his tenancy in accordance with the provisions of sections 9 and 10.(2)..............................7A. Additional grounds for termination of tenancy in certain cases.--(1) Subject to the provisions of sub-sections (2) and (3), a tenancy subsisting at the commencement of the Pepsu Tenancy and Agricultural Lands (Second Amendment) Act, 1956 may be terminated on the following grounds in addition to the grounds specified in section 7, namely:-(a) that the land comprising the tenancy has been reserved by the land-owner for his personal cultivation in accordance with the provisions of Chapter II:(b) that the landowner owns thirty standard acres or less of land and the land falls within the permissible limit;Provided that no tenant shall be ejected under this subsection-(i) from any area of land if the area under the personal cultivation of the tenant does not exceed five standard acres,(ii) from an area of five standard acres, if the area under the personal cultivation of the tenant exceeds five standards acres. until he is allowed by the State Government alternative land of equivalent value in standard acres.(2) No tenant, who immediately preceding the commencement of the Presidents Act has held any land continuously for a period of twelve years or more under the same land-owner or his predecessor in title, shah be ejected on the grounds specified in sub-section (1)-(a) from any area of land, if the area under the personal cultivation of the tenant does not exceed fifteen standards acres, or(b) from an area of fifteen standards acres, if the area under the personal cultivation of the tenant exceeds fifteen standard acres;provided that nothing in this sub-section shall apply to the tenant of a landowner who both, at the commencement of the tenancy and the commencement of the Presidents Act, was a widow, a minor, an unmarried woman, a member of the Armed Forces of the Union or a person incapable of cultivating land by reason of physical or mental infirmity.Explanation. In computing the period of twelve years, the period during which any land has been held under the same land-owner or his predecessor in title by the father, brother or son of the tenant shall be included.(3) For the purpose of computing under sub-sections (1) and (2) the area of land under the personal cultivation of a tenant, any area of land owned by the tenant and under his personal cultivation shall be included."2. It cannot, in view of the above noted provisions of law and the decision of this Court in Rikh Ram & Anr. v. Ram Kumar & Ors. ([1975] 2 S.C.C. 318.) be disputed that an order or decree directing eviction of a tenant is necessary to be obtained to bring about a determination of the tenancy. A fortiori, a person who has been in possession of land with the right to possess it continues to hold the land and to be a tenant in spite of having been wrongfully put out of possession especially if he has initiated proceedings for recovery of possession. As in the instant case, it has been concurrently found by all the courts below that the plaintiff-pre-emptor was a tenant of the suit land on the date of sale and it has not been alleged much less proved that his tenancy was, thereafter determined or terminated on any of the grounds set out in sections 7 and 7A of the Pepsu Tenancy and Agricultural Lands Act, 1955 and he h ad admittedly applied to the Tehsildar for restoration of his possession, he cannot but be deemed to be a tenant of the suit land on the date of the sale as well as on all other material dates and thus fully qualified and entitled to pre-empt the land. We must fairly state that our judgment is based on the provisions of law brought to our notice by counsel and our conclusion is confined to the interpretation of the Acts referred to above.3.
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### Explanation:
Though the l earned counsel for the appellants cited a few cases in support of his contention but did not unfortunately bring to our notice the decision of this Court in Dindyal &Anr. v. Raja Ram ([1971] 1 S.C.R. 298.) which may in an appropriate case require reconsideration by a larger bench of this Court, we think, he cannot be allowed canvass the aforesaid point. A reference to the record of the case shows that the point now sought to be agitated before us was not raised by the appellants either in their written statement or in the grounds of the three appeals preferred by them before the courts below. All that appeals from the record to have. been urged by them in the grounds of the aforesaid appeals was that the evidence had not been properly appraised and that in the absence of any lease deed in his favour or any receipt evidencing payment of rent by him to the vendor, mere entries in the khasra girdawaries were not enough to establish that the plaintiff-pre-emptor was a tenant of the suit land under the vendor at the time of thecannot, in view of the above noted provisions of law and the decision of this Court in Rikh Ram & Anr. v. Ram Kumar & Ors. ([1975] 2 S.C.C. 318.) be disputed that an order or decree directing eviction of a tenant is necessary to be obtained to bring about a determination of the tenancy. A fortiori, a person who has been in possession of land with the right to possess it continues to hold the land and to be a tenant in spite of having been wrongfully put out of possession especially if he has initiated proceedings for recovery of possession. As in the instant case, it has been concurrently found by all the courts below that the plaintiff-pre-emptor was a tenant of the suit land on the date of sale and it has not been alleged much less proved that his tenancy was, thereafter determined or terminated on any of the grounds set out in sections 7 and 7A ofthe Pepsu Tenancy and Agricultural Lands Act, 1955 and he h ad admittedly applied to the Tehsildar for restoration of his possession, he cannot but be deemed to be a tenant of the suit land on the date of the sale as well as on all other material dates and thus fully qualified and entitled to pre-empt the land. We must fairly state that our judgment is based on the provisions of law brought to our notice by counsel and our conclusion is confined to the interpretation of the Acts referred to above.
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P. Narayanappa Vs. State Of Karnataka | where it is possible to take two views, is not something which affects the jurisdiction and it would therefore be proper to bear in mind the considerations of prejudice and injustice." It is necessary to emphasize that all the decisions cited by learned counsel for the parties deal with notifications issued under Land Acquisition Act and as demonstrated earlier, the Scheme of the Act under our consideration is different. Even on the principle laid down in the authorities which were cited by learned counsel for the parties and which have been discussed above, it cannot be held that the impugned notifications are vague or cryptic or that they suffer from any infirmity. The challenge raised to the notifications on the aforesaid grounds must fail. 13. Learned counsel for the appellant has next submitted that the notification under Section 28(1) was published on 10.12.2001 and the notification under Section 28(4) was published on 23.10.2003 and thus there was a delay of more than 1 year and 10 months in publication of the second notification. As already discussed, the Scheme of the present Act is different and there is no similar provision like the one contained in proviso to sub-section (1) of Section 6 of the Land Acquisition Act which lays down a period of limitation of one year for making a declaration under Section 6(1) of the Act. In absence of any specific provision to that effect in the Act, and the time gap being not very long, it is not possible to hold that the notification under Section 28(4) of the Act is invalid. 14. Shri Shanti Bhushan, learned senior counsel for the appellants, has also submitted that Vikas Telecom (P) Ltd. (respondent no.9) were themselves owners of nearly 90 acres of land as three members of a family who were promoters and directors of the company had purchased agricultural land in the year 1995-96. They being not agriculturists, proceedings under the Karnataka Land Reforms Act were initiated against them, whereunder the land would have been forfeited to the State Government without payment of any compensation. In order to save their land, they manipulated with the Government and got their own land acquired whereunder they would be entitled to compensation. It is thus submitted that the whole proceedings for acquisition of the land whereunder not only the land of promoters and directors of Vikas Telecom (P) Ltd. but also the land of the appellants, who are agriculturists, was acquired is clearly mala fide. This point has been considered in detail by the High Court and has been repelled. Initially, proceedings initiated under Sections 79A, 79B and 80 of the Karnataka Land Reforms Act, 1961 against Devi Das Garg, one of the promoters of the company were dropped by the order of the Assistant Commissioner dated 23.5.2001. The Assistant Commissioner passed an order of forfeiture of the land against Santosh Kumar Garg on 29.12.2002 and a similar order was passed against Devi Das Garg on 31.12.2003. It may be noted that the order for forfeiture of the land was passed much after the preliminary notification under Section 28(1) of the Act had been issued on 10.12.2001. That apart, the appellants herein are interested in saving their own land from acquisition and have no concern with the land belonging to promoters of Vikas Telecom (P) Ltd. They have not laid any foundation in the writ petition to show that the action of the State Government in acquiring their land was a mala fide one. Even assuming that the promoters of Vikas Telecom (P) Ltd. somehow succeeded in getting their own land acquired in order to save it from being forfeited by the State Government in view of the provisions of Karnataka Land Reforms Act, that by itself cannot be a ground to strike down the impugned notifications insofar as the land of the appellants is concerned. Shri Nageshwara Rao, learned senior counse for KIADB has also submitted that the Karnataka Industrial Areas Development Board has only executed a lease deed in favour of Vikas Telecom (P) Ltd. for a period of 11 years for a consideration of Rs.25,71,50,781/- and the lessee has to pay a rent of Rs.1,000/- per annum from the date of taking over possession of the land. The lease has been granted on stringent conditions and under clause 10(d) the lessor has the right to terminate the lease and resume the possession of the scheduled property in the event the lessee fails to implement the project within the stipulated period or extended period, if any. Clause 14 contains a condition that the lessor shall be entitled to determine the lease and resume possession of the land if and when there is breach of any of the covenants and obligations contained in the lease deed. The fact that the lease deed has been executed only for a limited period of 11 years clearly shows that the land after acquisition has not been reverted back to Vikas Telecom (P) Ltd. conferring proprietary rights on them but they are merely lessees and the ownership and title thereof still vests with the Board. In such circumstances it is not possible to accept the plea of mala fide raised on behalf of the appellants. 15. It is lastly submitted that the State Government had acted in a discriminatory manner in de-notifying some of the lands which had been earlier included in the preliminary notification under Section 28(1) of the Act and whosoever was in a position to approach the concerned authority of the State Government, his land was exempted from acquisition. It has been urged that survey no.9/4 which was earlier included in the notification under Section 28(1) of the Act was specifically de-notified. We are afraid that this plea cannot be examined by us for want of sufficient details. The acquisition of the appellants land cannot be struck down on the ground that some of the land which was initially included in the notifications issued under Section 28 of the Act was de-notified. | 0[ds]Sub- section (1) of Section 28 clearly shows that the land can be acquired for (i) development by the Board; or (ii) for any other purpose in furtherance of the objects of the Act. Under sub-section (8) of Section 28, the State Government is empowered, after it has taken possession of land, to transfer the same to the Board for the purpose for which the land has been acquired. Section 32 empowers the State Government to place at the disposal of the Board any land vested in it and the Board is enjoined to deal with the land in accordance with the regulations made and directions given by the State Government in this behalf. This stage when the Board gets the authority to deal with the land comes at a later stage which is after the land has been developed by it. An entrepreneur or a company may give a proposal to the State Government for setting up an industry or infrastructural facility and the Government may thereafter acquire the land and give it to the Board. It is also possible that after the land has already been acquired and developed by the Board, it may be allotted to an entrepreneur or a company for setting up an industry or infrastructural facility. Therefore, the scheme of the Act does not show that at the time of acquisition of the land and issuing a preliminary notification under Section 28(1) of the Act, the complete details of the nature of the industry or infrastructural facility proposed to be set up should also be mentioned. At that stage what is to be seen is whether the land is acquired for development by the Board or for any other purpose in furtherance of the objects of the Act, as mentioned in sub-section (1) of Section 28 of the Act. In fact, if the contention raised by the learned senior counsel for the appellants is accepted, it would mean that even at the stage of preliminary notification under Section 28(1) of the Act, the nature of the activity which may be done by some entrepreneur or a company which may give a proposal for setting up an industry or infrastructural facility much after land has been acquired should also be taken note of and specifically mentioned in the notification, which is well nigh impossible. While interpreting the provisions of the Act, the Court should not only take into consideration the facts of the present case but should also have in mind all possible contingencies. Therefore, on a plain reading of the language used in the Act, it is not possible to accept the contention of the learned senior counsel for the appellants that the impugned notification is vague or cryptic as the complete details of the project which was proposed to be established by Vikas Telecom (P) Ltd. (respondent no.9) were not mentioned and on account of the aforesaid lacuna, the landowners were deprived of their right to make a proper representation or to show cause against the proposed acquisitionAs already discussed, the Scheme of the present Act is different and there is no similar provision like the one contained in proviso to sub-section (1) of Section 6 of the Land Acquisition Act which lays down a period of limitation of one year for making a declaration under Section 6(1) of the Act. In absence of any specific provision to that effect in the Act, and the time gap being not very long, it is not possible to hold that the notification under Section 28(4) of the Act is invalidThey being not agriculturists, proceedings under the Karnataka Land Reforms Act were initiated against them, whereunder the land would have been forfeited to the State Government without payment of any compensation. In order to save their land, they manipulated with the Government and got their own land acquired whereunder they would be entitled to compensation. It is thus submitted that the whole proceedings for acquisition of the land whereunder not only the land of promoters and directors of Vikas Telecom (P) Ltd. but also the land of the appellants, who are agriculturists, was acquired is clearly mala fide. This point has been considered in detail by the High Court and has been repelled. Initially, proceedings initiated under Sections 79A, 79B and 80 of the Karnataka Land Reforms Act, 1961 against Devi Das Garg, one of the promoters of the company were dropped by the order of the Assistant Commissioner dated 23.5.2001. The Assistant Commissioner passed an order of forfeiture of the land against Santosh Kumar Garg on 29.12.2002 and a similar order was passed against Devi Das Garg on 31.12.2003. It may be noted that the order for forfeiture of the land was passed much after the preliminary notification under Section 28(1) of the Act had been issued on 10.12.2001. That apart, the appellants herein are interested in saving their own land from acquisition and have no concern with the land belonging to promoters of Vikas Telecom (P) Ltd. They have not laid any foundation in the writ petition to show that the action of the State Government in acquiring their land was a mala fide one. Even assuming that the promoters of Vikas Telecom (P) Ltd. somehow succeeded in getting their own land acquired in order to save it from being forfeited by the State Government in view of the provisions of Karnataka Land Reforms Act, that by itself cannot be a ground to strike down the impugned notifications insofar as the land of the appellants is concernedThe lease has been granted on stringent conditions and under clause 10(d) the lessor has the right to terminate the lease and resume the possession of the scheduled property in the event the lessee fails to implement the project within the stipulated period or extended period, if any. Clause 14 contains a condition that the lessor shall be entitled to determine the lease and resume possession of the land if and when there is breach of any of the covenants and obligations contained in the lease deed. The fact that the lease deed has been executed only for a limited period of 11 years clearly shows that the land after acquisition has not been reverted back to Vikas Telecom (P) Ltd. conferring proprietary rights on them but they are merely lessees and the ownership and title thereof still vests with the Board. In such circumstances it is not possible to accept the plea of mala fide raised on behalf of the appellantsThe acquisition of the appellants land cannot be struck down on the ground that some of the land which was initially included in the notifications issued under Section 28 of the Act was de-notified. | 0 | 6,210 | 1,220 | ### 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:
where it is possible to take two views, is not something which affects the jurisdiction and it would therefore be proper to bear in mind the considerations of prejudice and injustice." It is necessary to emphasize that all the decisions cited by learned counsel for the parties deal with notifications issued under Land Acquisition Act and as demonstrated earlier, the Scheme of the Act under our consideration is different. Even on the principle laid down in the authorities which were cited by learned counsel for the parties and which have been discussed above, it cannot be held that the impugned notifications are vague or cryptic or that they suffer from any infirmity. The challenge raised to the notifications on the aforesaid grounds must fail. 13. Learned counsel for the appellant has next submitted that the notification under Section 28(1) was published on 10.12.2001 and the notification under Section 28(4) was published on 23.10.2003 and thus there was a delay of more than 1 year and 10 months in publication of the second notification. As already discussed, the Scheme of the present Act is different and there is no similar provision like the one contained in proviso to sub-section (1) of Section 6 of the Land Acquisition Act which lays down a period of limitation of one year for making a declaration under Section 6(1) of the Act. In absence of any specific provision to that effect in the Act, and the time gap being not very long, it is not possible to hold that the notification under Section 28(4) of the Act is invalid. 14. Shri Shanti Bhushan, learned senior counsel for the appellants, has also submitted that Vikas Telecom (P) Ltd. (respondent no.9) were themselves owners of nearly 90 acres of land as three members of a family who were promoters and directors of the company had purchased agricultural land in the year 1995-96. They being not agriculturists, proceedings under the Karnataka Land Reforms Act were initiated against them, whereunder the land would have been forfeited to the State Government without payment of any compensation. In order to save their land, they manipulated with the Government and got their own land acquired whereunder they would be entitled to compensation. It is thus submitted that the whole proceedings for acquisition of the land whereunder not only the land of promoters and directors of Vikas Telecom (P) Ltd. but also the land of the appellants, who are agriculturists, was acquired is clearly mala fide. This point has been considered in detail by the High Court and has been repelled. Initially, proceedings initiated under Sections 79A, 79B and 80 of the Karnataka Land Reforms Act, 1961 against Devi Das Garg, one of the promoters of the company were dropped by the order of the Assistant Commissioner dated 23.5.2001. The Assistant Commissioner passed an order of forfeiture of the land against Santosh Kumar Garg on 29.12.2002 and a similar order was passed against Devi Das Garg on 31.12.2003. It may be noted that the order for forfeiture of the land was passed much after the preliminary notification under Section 28(1) of the Act had been issued on 10.12.2001. That apart, the appellants herein are interested in saving their own land from acquisition and have no concern with the land belonging to promoters of Vikas Telecom (P) Ltd. They have not laid any foundation in the writ petition to show that the action of the State Government in acquiring their land was a mala fide one. Even assuming that the promoters of Vikas Telecom (P) Ltd. somehow succeeded in getting their own land acquired in order to save it from being forfeited by the State Government in view of the provisions of Karnataka Land Reforms Act, that by itself cannot be a ground to strike down the impugned notifications insofar as the land of the appellants is concerned. Shri Nageshwara Rao, learned senior counse for KIADB has also submitted that the Karnataka Industrial Areas Development Board has only executed a lease deed in favour of Vikas Telecom (P) Ltd. for a period of 11 years for a consideration of Rs.25,71,50,781/- and the lessee has to pay a rent of Rs.1,000/- per annum from the date of taking over possession of the land. The lease has been granted on stringent conditions and under clause 10(d) the lessor has the right to terminate the lease and resume the possession of the scheduled property in the event the lessee fails to implement the project within the stipulated period or extended period, if any. Clause 14 contains a condition that the lessor shall be entitled to determine the lease and resume possession of the land if and when there is breach of any of the covenants and obligations contained in the lease deed. The fact that the lease deed has been executed only for a limited period of 11 years clearly shows that the land after acquisition has not been reverted back to Vikas Telecom (P) Ltd. conferring proprietary rights on them but they are merely lessees and the ownership and title thereof still vests with the Board. In such circumstances it is not possible to accept the plea of mala fide raised on behalf of the appellants. 15. It is lastly submitted that the State Government had acted in a discriminatory manner in de-notifying some of the lands which had been earlier included in the preliminary notification under Section 28(1) of the Act and whosoever was in a position to approach the concerned authority of the State Government, his land was exempted from acquisition. It has been urged that survey no.9/4 which was earlier included in the notification under Section 28(1) of the Act was specifically de-notified. We are afraid that this plea cannot be examined by us for want of sufficient details. The acquisition of the appellants land cannot be struck down on the ground that some of the land which was initially included in the notifications issued under Section 28 of the Act was de-notified.
### Response:
0
### Explanation:
the Board gets the authority to deal with the land comes at a later stage which is after the land has been developed by it. An entrepreneur or a company may give a proposal to the State Government for setting up an industry or infrastructural facility and the Government may thereafter acquire the land and give it to the Board. It is also possible that after the land has already been acquired and developed by the Board, it may be allotted to an entrepreneur or a company for setting up an industry or infrastructural facility. Therefore, the scheme of the Act does not show that at the time of acquisition of the land and issuing a preliminary notification under Section 28(1) of the Act, the complete details of the nature of the industry or infrastructural facility proposed to be set up should also be mentioned. At that stage what is to be seen is whether the land is acquired for development by the Board or for any other purpose in furtherance of the objects of the Act, as mentioned in sub-section (1) of Section 28 of the Act. In fact, if the contention raised by the learned senior counsel for the appellants is accepted, it would mean that even at the stage of preliminary notification under Section 28(1) of the Act, the nature of the activity which may be done by some entrepreneur or a company which may give a proposal for setting up an industry or infrastructural facility much after land has been acquired should also be taken note of and specifically mentioned in the notification, which is well nigh impossible. While interpreting the provisions of the Act, the Court should not only take into consideration the facts of the present case but should also have in mind all possible contingencies. Therefore, on a plain reading of the language used in the Act, it is not possible to accept the contention of the learned senior counsel for the appellants that the impugned notification is vague or cryptic as the complete details of the project which was proposed to be established by Vikas Telecom (P) Ltd. (respondent no.9) were not mentioned and on account of the aforesaid lacuna, the landowners were deprived of their right to make a proper representation or to show cause against the proposed acquisitionAs already discussed, the Scheme of the present Act is different and there is no similar provision like the one contained in proviso to sub-section (1) of Section 6 of the Land Acquisition Act which lays down a period of limitation of one year for making a declaration under Section 6(1) of the Act. In absence of any specific provision to that effect in the Act, and the time gap being not very long, it is not possible to hold that the notification under Section 28(4) of the Act is invalidThey being not agriculturists, proceedings under the Karnataka Land Reforms Act were initiated against them, whereunder the land would have been forfeited to the State Government without payment of any compensation. In order to save their land, they manipulated with the Government and got their own land acquired whereunder they would be entitled to compensation. It is thus submitted that the whole proceedings for acquisition of the land whereunder not only the land of promoters and directors of Vikas Telecom (P) Ltd. but also the land of the appellants, who are agriculturists, was acquired is clearly mala fide. This point has been considered in detail by the High Court and has been repelled. Initially, proceedings initiated under Sections 79A, 79B and 80 of the Karnataka Land Reforms Act, 1961 against Devi Das Garg, one of the promoters of the company were dropped by the order of the Assistant Commissioner dated 23.5.2001. The Assistant Commissioner passed an order of forfeiture of the land against Santosh Kumar Garg on 29.12.2002 and a similar order was passed against Devi Das Garg on 31.12.2003. It may be noted that the order for forfeiture of the land was passed much after the preliminary notification under Section 28(1) of the Act had been issued on 10.12.2001. That apart, the appellants herein are interested in saving their own land from acquisition and have no concern with the land belonging to promoters of Vikas Telecom (P) Ltd. They have not laid any foundation in the writ petition to show that the action of the State Government in acquiring their land was a mala fide one. Even assuming that the promoters of Vikas Telecom (P) Ltd. somehow succeeded in getting their own land acquired in order to save it from being forfeited by the State Government in view of the provisions of Karnataka Land Reforms Act, that by itself cannot be a ground to strike down the impugned notifications insofar as the land of the appellants is concernedThe lease has been granted on stringent conditions and under clause 10(d) the lessor has the right to terminate the lease and resume the possession of the scheduled property in the event the lessee fails to implement the project within the stipulated period or extended period, if any. Clause 14 contains a condition that the lessor shall be entitled to determine the lease and resume possession of the land if and when there is breach of any of the covenants and obligations contained in the lease deed. The fact that the lease deed has been executed only for a limited period of 11 years clearly shows that the land after acquisition has not been reverted back to Vikas Telecom (P) Ltd. conferring proprietary rights on them but they are merely lessees and the ownership and title thereof still vests with the Board. In such circumstances it is not possible to accept the plea of mala fide raised on behalf of the appellantsThe acquisition of the appellants land cannot be struck down on the ground that some of the land which was initially included in the notifications issued under Section 28 of the Act was de-notified.
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Eshwarappa @ Maheshwarappa &Anr Vs. C.S. Gurushanthappa | (5) which begins with a non obstante clause makes it further clear that the liability under section 140 is independent of the liability of the owner of the vehicle to pay compensation under any other law for the time being in force. The proviso to sub-section (5), of course, provides that the amount of compensation under any other law would be reduced from the amount of compensation payable under section 140 or under section 163A of the Act. 13. Then there is section 141 which reads as under: "141. Provisions as to other right to claim compensation for death or permanent disablement.(1) The right to claim compensation under section 140 in respect of death or permanent disablement of any person shall be in addition to any other right, except the right to claim under the scheme referred to in section 163A (such other right hereafter in this section referred to as the right on the principle of fault) to claim compensation in respect thereof under any other provision of this Act or of any other law for the time being in force.(2) A claim for compensation under section 140 in respect of death or permanent disablement of any person shall be disposed of as expeditiously as possible and where compensation is claimed in respect of such death or permanent disablement under section 140 and also in pursuance of any right on the principle of fault, the claim for compensation under section 140 shall be disposed of as aforesaid in the first place.(3) Notwithstanding anything contained in sub-section (1), where in respect of the death or permanent disablement of any person, the person liable to pay compensation under section 140 is also liable to pay compensation in accordance with the right on the principle of fault, the person so liable shall pay the first- mentioned compensation and-(a) if the amount of the first-mentioned compensation is less than the amount of the second-mentioned compensation, he shall be liable to pay (in addition to the first-mentioned compensation) only so much of the second-mentioned compensation as is equal to the amount by which it exceeds the first mentioned compensation;(b) if the amount of the first-mentioned compensation is equal to or more than the amount of the second- mentioned compensation, he shall not be liable to pay the second-mentioned compensation." Sub-section (1) of section 141 makes the compensation under section 140 independent of any claim of compensation based on the principle of fault under any other provision of the Motor Vehicles Act or under any other law but subject to any claim of compensation under section 163A of the Act. Sub-sections (2) and (3) further provide that even while claiming compensation under the principle of fault (under section 166) one may claim no fault compensation under section 140 and in that case the claim of no fault compensation shall be disposed of in the first place and the amount of compensation paid under section 140 would be later adjusted if the amount payable as compensation on the principle of fault is higher than it. 14. Finally, section 144 gives overriding effect to the provisions of Chapter X. Section 144 reads as follows: "144. Overriding effect.-The provisions of this Chapter shall have effect notwithstanding anything contained in any other provision of this Act or of any other law for the time being in force." 15. Seen in isolation the above provisions might appear harsh, unreasonable and arbitrary in as much as these create the liability of the vehicle(s) owner(s) even where the accident did not take place due to any wrongful act, neglect or default of the owner or owners of the vehicle or vehicles concerned but entirely due to the wrongful act, neglect or default of the person in respect of whose death or permanent disablement the claim has been made but the above provisions must be seen along with certain provisions of Chapter XI. Section 146 forbids the use of the vehicle in a public place unless there is in force, in relation to the use of the vehicle, a policy of insurance complying with the provisions of that chapter. Section 147 contains the provisions that are commonly referred to as `Act only insurance. The provisions of sections 146 and 147 are meant to create the large pool of money for making payments of no fault compensation. Thus the liability arising from section 140 would almost invariably be passed on to the insurer to be paid off from the vast fund created by virtue of sections 146 and 147 of the Act unless the owner of the vehicle causing accident is guilty of some flagrant violation of the law.16. Seen thus, the provisions of chapter X together with sections 146 and 147 would appear to be in furtherance of the public policy that in case of death or permanent disablement of any person resulting from a motor accident a minimum amount must be paid to the injured or the heirs of the deceased, as the case may be, without any questions being asked and independently of the compensation on the principle of fault.17. The provisions of section 140 are indeed intended to provide immediate succour to the injured or the heirs and legal representatives of the deceased. Hence, normally a claim under section 140 is made at the threshold of the proceeding and the payment of compensation under section 140 is directed to be made by an interim award of the Tribunal which may be adjusted if in the final award the claimants are held entitled to any larger amounts. But that does not mean, that in case a claim under section 140 was not made at the beginning of the proceedings due to the ignorance of the claimant or no direction to make payment of the compensation under section 140 was issued due to the over-sight of the Tribunal, the door would be permanently closed. Such a view would be contrary to the legal provisions and would be opposed to the public policy. | 1[ds]12. Coming back to the order passed by the Tribunal, we are completely unable to appreciate the reasons assigned for denying the appellants the `no fault compensation as provided under section 140 of the Act. The Tribunal was gravely in error in taking the view that a claim for compensation under section 140 of the Act can succeed only in case it is raised at the initial stage of the proceedings and further that the claim must fail if the accident had taken place by using the car without the consent or knowledge of its owner. Section 140 is the first section of chapter X of the Act. It is a small chapter consisting of only five sections (from 140 to 144) and has the marginal heading "Liability without Fault in Certaina plain reading of the provisions it is evident that all that is required to attract the liability under section 140 is an accident arising out of the use of a motor vehicle(s) leading to the death or permanent disablement of any person.(2) provides for a fixed amount as compensation. [In case of death, currently it is rupees fifty thousand (Rs.50,000.00) only; at the time the accident from which the appeal arises took place the fixed amount in case of death was rupees twenty five thousand (Rs.25,000.00) only]. Subsection (3) provides that even though the death or permanent disablement resulting from the motor accident might not be due to any wrongful act, neglect or default of the owner of the vehicle, it would have no effect either on his liability or on the amount of compensation.(4) conversely provides that the motor accident resulting in the death or permanent disablement might be entirely due to the wrongful act, neglect or default of the person in respect of whose death or permanent disablement the claim is made but that too would have no effect either on the right to receive the compensation or the amount of compensation.(5) which begins with a non obstante clause makes it further clear that the liability under section 140 is independent of the liability of the owner of the vehicle to pay compensation under any other law for the time being in force. The proviso to(5), of course, provides that the amount of compensation under any other law would be reduced from the amount of compensation payable under section 140 or under section 163A of the(1) of section 141 makes the compensation under section 140 independent of any claim of compensation based on the principle of fault under any other provision of the Motor Vehicles Act or under any other law but subject to any claim of compensation under section 163A of the(2) and (3) further provide that even while claiming compensation under the principle of fault (under section 166) one may claim no fault compensation under section 140 and in that case the claim of no fault compensation shall be disposed of in the first place and the amount of compensation paid under section 140 would be later adjusted if the amount payable as compensation on the principle of fault is higher than it.Seen in isolation the above provisions might appear harsh, unreasonable and arbitrary in as much as these create the liability of the vehicle(s) owner(s) even where the accident did not take place due to any wrongful act, neglect or default of the owner or owners of the vehicle or vehicles concerned but entirely due to the wrongful act, neglect or default of the person in respect of whose death or permanent disablement the claim has been made but the above provisions must be seen along with certain provisions of Chapter XI. Section 146 forbids the use of the vehicle in a public place unless there is in force, in relation to the use of the vehicle, a policy of insurance complying with the provisions of that chapter. Section 147 contains the provisions that are commonly referred to as `Act only insurance. The provisions of sections 146 and 147 are meant to create the large pool of money for making payments of no fault compensation. Thus the liability arising from section 140 would almost invariably be passed on to the insurer to be paid off from the vast fund created by virtue of sections 146 and 147 of the Act unless the owner of the vehicle causing accident is guilty of some flagrant violation of the law.16. Seen thus, the provisions of chapter X together with sections 146 and 147 would appear to be in furtherance of the public policy that in case of death or permanent disablement of any person resulting from a motor accident a minimum amount must be paid to the injured or the heirs of the deceased, as the case may be, without any questions being asked and independently of the compensation on the principle of fault.17. The provisions of section 140 are indeed intended to provide immediate succour to the injured or the heirs and legal representatives of the deceased. Hence, normally a claim under section 140 is made at the threshold of the proceeding and the payment of compensation under section 140 is directed to be made by an interim award of the Tribunal which may be adjusted if in the final award the claimants are held entitled to any larger amounts. But that does not mean, that in case a claim under section 140 was not made at the beginning of the proceedings due to the ignorance of the claimant or no direction to make payment of the compensation under section 140 was issued due to theof the Tribunal, the door would be permanently closed. Such a view would be contrary to the legal provisions and would be opposed to the public policy. | 1 | 3,607 | 1,044 | ### 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:
(5) which begins with a non obstante clause makes it further clear that the liability under section 140 is independent of the liability of the owner of the vehicle to pay compensation under any other law for the time being in force. The proviso to sub-section (5), of course, provides that the amount of compensation under any other law would be reduced from the amount of compensation payable under section 140 or under section 163A of the Act. 13. Then there is section 141 which reads as under: "141. Provisions as to other right to claim compensation for death or permanent disablement.(1) The right to claim compensation under section 140 in respect of death or permanent disablement of any person shall be in addition to any other right, except the right to claim under the scheme referred to in section 163A (such other right hereafter in this section referred to as the right on the principle of fault) to claim compensation in respect thereof under any other provision of this Act or of any other law for the time being in force.(2) A claim for compensation under section 140 in respect of death or permanent disablement of any person shall be disposed of as expeditiously as possible and where compensation is claimed in respect of such death or permanent disablement under section 140 and also in pursuance of any right on the principle of fault, the claim for compensation under section 140 shall be disposed of as aforesaid in the first place.(3) Notwithstanding anything contained in sub-section (1), where in respect of the death or permanent disablement of any person, the person liable to pay compensation under section 140 is also liable to pay compensation in accordance with the right on the principle of fault, the person so liable shall pay the first- mentioned compensation and-(a) if the amount of the first-mentioned compensation is less than the amount of the second-mentioned compensation, he shall be liable to pay (in addition to the first-mentioned compensation) only so much of the second-mentioned compensation as is equal to the amount by which it exceeds the first mentioned compensation;(b) if the amount of the first-mentioned compensation is equal to or more than the amount of the second- mentioned compensation, he shall not be liable to pay the second-mentioned compensation." Sub-section (1) of section 141 makes the compensation under section 140 independent of any claim of compensation based on the principle of fault under any other provision of the Motor Vehicles Act or under any other law but subject to any claim of compensation under section 163A of the Act. Sub-sections (2) and (3) further provide that even while claiming compensation under the principle of fault (under section 166) one may claim no fault compensation under section 140 and in that case the claim of no fault compensation shall be disposed of in the first place and the amount of compensation paid under section 140 would be later adjusted if the amount payable as compensation on the principle of fault is higher than it. 14. Finally, section 144 gives overriding effect to the provisions of Chapter X. Section 144 reads as follows: "144. Overriding effect.-The provisions of this Chapter shall have effect notwithstanding anything contained in any other provision of this Act or of any other law for the time being in force." 15. Seen in isolation the above provisions might appear harsh, unreasonable and arbitrary in as much as these create the liability of the vehicle(s) owner(s) even where the accident did not take place due to any wrongful act, neglect or default of the owner or owners of the vehicle or vehicles concerned but entirely due to the wrongful act, neglect or default of the person in respect of whose death or permanent disablement the claim has been made but the above provisions must be seen along with certain provisions of Chapter XI. Section 146 forbids the use of the vehicle in a public place unless there is in force, in relation to the use of the vehicle, a policy of insurance complying with the provisions of that chapter. Section 147 contains the provisions that are commonly referred to as `Act only insurance. The provisions of sections 146 and 147 are meant to create the large pool of money for making payments of no fault compensation. Thus the liability arising from section 140 would almost invariably be passed on to the insurer to be paid off from the vast fund created by virtue of sections 146 and 147 of the Act unless the owner of the vehicle causing accident is guilty of some flagrant violation of the law.16. Seen thus, the provisions of chapter X together with sections 146 and 147 would appear to be in furtherance of the public policy that in case of death or permanent disablement of any person resulting from a motor accident a minimum amount must be paid to the injured or the heirs of the deceased, as the case may be, without any questions being asked and independently of the compensation on the principle of fault.17. The provisions of section 140 are indeed intended to provide immediate succour to the injured or the heirs and legal representatives of the deceased. Hence, normally a claim under section 140 is made at the threshold of the proceeding and the payment of compensation under section 140 is directed to be made by an interim award of the Tribunal which may be adjusted if in the final award the claimants are held entitled to any larger amounts. But that does not mean, that in case a claim under section 140 was not made at the beginning of the proceedings due to the ignorance of the claimant or no direction to make payment of the compensation under section 140 was issued due to the over-sight of the Tribunal, the door would be permanently closed. Such a view would be contrary to the legal provisions and would be opposed to the public policy.
### Response:
1
### Explanation:
12. Coming back to the order passed by the Tribunal, we are completely unable to appreciate the reasons assigned for denying the appellants the `no fault compensation as provided under section 140 of the Act. The Tribunal was gravely in error in taking the view that a claim for compensation under section 140 of the Act can succeed only in case it is raised at the initial stage of the proceedings and further that the claim must fail if the accident had taken place by using the car without the consent or knowledge of its owner. Section 140 is the first section of chapter X of the Act. It is a small chapter consisting of only five sections (from 140 to 144) and has the marginal heading "Liability without Fault in Certaina plain reading of the provisions it is evident that all that is required to attract the liability under section 140 is an accident arising out of the use of a motor vehicle(s) leading to the death or permanent disablement of any person.(2) provides for a fixed amount as compensation. [In case of death, currently it is rupees fifty thousand (Rs.50,000.00) only; at the time the accident from which the appeal arises took place the fixed amount in case of death was rupees twenty five thousand (Rs.25,000.00) only]. Subsection (3) provides that even though the death or permanent disablement resulting from the motor accident might not be due to any wrongful act, neglect or default of the owner of the vehicle, it would have no effect either on his liability or on the amount of compensation.(4) conversely provides that the motor accident resulting in the death or permanent disablement might be entirely due to the wrongful act, neglect or default of the person in respect of whose death or permanent disablement the claim is made but that too would have no effect either on the right to receive the compensation or the amount of compensation.(5) which begins with a non obstante clause makes it further clear that the liability under section 140 is independent of the liability of the owner of the vehicle to pay compensation under any other law for the time being in force. The proviso to(5), of course, provides that the amount of compensation under any other law would be reduced from the amount of compensation payable under section 140 or under section 163A of the(1) of section 141 makes the compensation under section 140 independent of any claim of compensation based on the principle of fault under any other provision of the Motor Vehicles Act or under any other law but subject to any claim of compensation under section 163A of the(2) and (3) further provide that even while claiming compensation under the principle of fault (under section 166) one may claim no fault compensation under section 140 and in that case the claim of no fault compensation shall be disposed of in the first place and the amount of compensation paid under section 140 would be later adjusted if the amount payable as compensation on the principle of fault is higher than it.Seen in isolation the above provisions might appear harsh, unreasonable and arbitrary in as much as these create the liability of the vehicle(s) owner(s) even where the accident did not take place due to any wrongful act, neglect or default of the owner or owners of the vehicle or vehicles concerned but entirely due to the wrongful act, neglect or default of the person in respect of whose death or permanent disablement the claim has been made but the above provisions must be seen along with certain provisions of Chapter XI. Section 146 forbids the use of the vehicle in a public place unless there is in force, in relation to the use of the vehicle, a policy of insurance complying with the provisions of that chapter. Section 147 contains the provisions that are commonly referred to as `Act only insurance. The provisions of sections 146 and 147 are meant to create the large pool of money for making payments of no fault compensation. Thus the liability arising from section 140 would almost invariably be passed on to the insurer to be paid off from the vast fund created by virtue of sections 146 and 147 of the Act unless the owner of the vehicle causing accident is guilty of some flagrant violation of the law.16. Seen thus, the provisions of chapter X together with sections 146 and 147 would appear to be in furtherance of the public policy that in case of death or permanent disablement of any person resulting from a motor accident a minimum amount must be paid to the injured or the heirs of the deceased, as the case may be, without any questions being asked and independently of the compensation on the principle of fault.17. The provisions of section 140 are indeed intended to provide immediate succour to the injured or the heirs and legal representatives of the deceased. Hence, normally a claim under section 140 is made at the threshold of the proceeding and the payment of compensation under section 140 is directed to be made by an interim award of the Tribunal which may be adjusted if in the final award the claimants are held entitled to any larger amounts. But that does not mean, that in case a claim under section 140 was not made at the beginning of the proceedings due to the ignorance of the claimant or no direction to make payment of the compensation under section 140 was issued due to theof the Tribunal, the door would be permanently closed. Such a view would be contrary to the legal provisions and would be opposed to the public policy.
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RANJANA KUMARI Vs. STATE OF UTTARAKHAND | 1. We have heard the learned counsels for the parties and perused the relevant material. 2. The appellant who belongs to Valmiki caste (Scheduled Caste) of the State of Punjab married a person belonging to the Valmiki caste of Uttarakhand and migrated to that State. In the State of Uttarakhand under the Presidential Order Valmiki is also recognized as a notified Scheduled Caste. The State of Uttarakhand issued a certificate to the appellant. 3. The appellant contended before the High Court that she was a Scheduled Caste of the State of Uttarakhand. The High Court having rejected the claim, the appellant is in appeal before us. 4. Two Constitution Bench judgments of this Court in Marri Chandra Shekhar Rao vs. Dean, Seth G.S. Medical College & Ors., (1990) 3 SCC 130 and Action Committee on Issue of Caste Certificate to Scheduled Castes & Scheduled Tribes in the State of Maharashtra & Anr. vs. Union of India & Anr., (1994) 5 SCC 244have taken the view that merely because in the migrant State the same caste is recognized as Scheduled Caste, the migrant cannot be recognized as Scheduled Caste of the migrant State. The issuance of a caste certificate by the State of Uttarakhand, as in the present case, cannot dilute the rigours of the Constitution Bench Judgments in Marri Chandra Shekhar Rao (supra) and Action Committee (supra). | 0[ds]4. Two Constitution Bench judgments of this Court in Marri Chandra Shekhar Rao vs. Dean, Seth G.S. Medical College & Ors., (1990) 3 SCC 130 and Action Committee on Issue of Caste Certificate to Scheduled Castes & Scheduled Tribes in the State of Maharashtra & Anr. vs. Union of India & Anr., (1994) 5 SCC 244have taken the view that merely because in the migrant State the same caste is recognized as Scheduled Caste, the migrant cannot be recognized as Scheduled Caste of the migrant State. The issuance of a caste certificate by the State of Uttarakhand, as in the present case, cannot dilute the rigours of the Constitution Bench Judgments in Marri Chandra Shekhar Rao (supra) and Action Committee (supra). | 0 | 260 | 146 | ### 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:
1. We have heard the learned counsels for the parties and perused the relevant material. 2. The appellant who belongs to Valmiki caste (Scheduled Caste) of the State of Punjab married a person belonging to the Valmiki caste of Uttarakhand and migrated to that State. In the State of Uttarakhand under the Presidential Order Valmiki is also recognized as a notified Scheduled Caste. The State of Uttarakhand issued a certificate to the appellant. 3. The appellant contended before the High Court that she was a Scheduled Caste of the State of Uttarakhand. The High Court having rejected the claim, the appellant is in appeal before us. 4. Two Constitution Bench judgments of this Court in Marri Chandra Shekhar Rao vs. Dean, Seth G.S. Medical College & Ors., (1990) 3 SCC 130 and Action Committee on Issue of Caste Certificate to Scheduled Castes & Scheduled Tribes in the State of Maharashtra & Anr. vs. Union of India & Anr., (1994) 5 SCC 244have taken the view that merely because in the migrant State the same caste is recognized as Scheduled Caste, the migrant cannot be recognized as Scheduled Caste of the migrant State. The issuance of a caste certificate by the State of Uttarakhand, as in the present case, cannot dilute the rigours of the Constitution Bench Judgments in Marri Chandra Shekhar Rao (supra) and Action Committee (supra).
### Response:
0
### Explanation:
4. Two Constitution Bench judgments of this Court in Marri Chandra Shekhar Rao vs. Dean, Seth G.S. Medical College & Ors., (1990) 3 SCC 130 and Action Committee on Issue of Caste Certificate to Scheduled Castes & Scheduled Tribes in the State of Maharashtra & Anr. vs. Union of India & Anr., (1994) 5 SCC 244have taken the view that merely because in the migrant State the same caste is recognized as Scheduled Caste, the migrant cannot be recognized as Scheduled Caste of the migrant State. The issuance of a caste certificate by the State of Uttarakhand, as in the present case, cannot dilute the rigours of the Constitution Bench Judgments in Marri Chandra Shekhar Rao (supra) and Action Committee (supra).
|
Jagdev Singh Sidhanti Vs. Pratap Singh Daulta | from voting for Daulta "on the ground of religion and language", and in paragraph 12 it was averred that in the public meetings held to further the prospects of Sidhanti in the election, Sidhanti and his agents had made systematic appeals to the elctorate to vote for him and refrain from voting for Daulta "on the ground of his religion and language". A bare perusal of the particulars of the corrupt practice so set out in paragraphs 11 and 12 are to be found in Schs.C and D clearly shows that it was the case of Daulta that Sidhanti had said that if the electorate wanted to protect their language they should vote for the Hariana Lok Samiti candidate. Similar exhortations are said to have been made by the other speakers at the various meetings. It is stated in Sch. D that resolutions were passed at the meetings urging upon the Government to "abolish Punjabi from Hariana", that many speakers said that the Hariana Lok Samiti will fight for Hindi for Hariana and that they were opposed to the teaching of Punjabi in Hariana. These exhortations to the electorate to induce the Government to change their language policy or that a political party will agitate for the protection of the language spoken by the residents of the Hariana area do not fall within the corrupt practices of appealing for votes on the ground of language of the candidate or to refrain from voting on the ground of language of the contesting candidate.28. Speeches made at political meetings held for canvassing votes must be examined in the context of the atmosphere of a political campaign and the passions which are generally aroused in such a campaign. In adjudging whether an appeal is made to the language of the candidate, a meticulous examination of the text of the speech in the serene atmosphere of the Court room picking out a word here and a phrase there to make out an offending appeal to vote for or against a candidate on the ground of language would not be permissible. A general and overall picture of the speeches delivered by Sidhanti and other speakers at the meetings disclosed nothing more than a tale of political promises, exhortations and inducements to vote at the forthcoming election for Sidhanti.29. It is not disputed that in 1957 there was a wide-spread agitation in the State of Punjab against the enforcement of the education policy of the State, incorporated in the "Sachar formula." Many persons were imprisoned or detained in the cause of the agitation for individual acts done by them. But the movement was not and could not be declared illegal. It is common ground that in the Hariana region Hindi is the predominant language of the people and if a section of the people thought that compelling the students in the Hariana region to learn Punjabi was not in their interest and in the election campaign such a view was advocated and votes were canvassed on the promise that the candidate if elected will take steps to conserve the language of the region, it would be difficult to hold that appeal as amounting to a corrupt practice. It is open to a candidate in the course of his election campaign to criticise the policies of the Government including its language policy and to make promises to the electorate that if elected he will secure a reversal of that policy or will take measures in the Legislature to undo the danger, real, apprehended or even fancied, to the language of the people. The object of the Hariana Lok Samiti was evidently to resist the imposition of Punjabi in the Hariana region and that object appears to have been made the platform in the election campaign. Thereby it could not be said that the voters were asked not to vote for Daulta on the ground of his language, assuming that it was other than Hindi. Nor can it be said that it was an appeal to the voters to vote for Sidhanti on the ground of his language.30. The evidence which has been referred to by the High Court regarding the speeches made by Badlu Ram and Harphul Singh on December 10, 1961, at Beri on the face of it shows that the speeches were an attack against Daulta in respect of his political conduct, behaviour and beliefs. The speeches made at the meetings at Sampla, Ladpur and Majra Dabuldhan read like political harangues addressed to the electorate to vote for the candidate who would project the language of the people of Hariana. At Bahadugarh also Sidhanti is stated to have claimed that he was opposed to the Government and its supporter Daulta in the matter of the language movement. The evidence also showed that Sidhanti had appealed to the voters to vote for him because he was actively associated with the Hindi agitation movement and that he was championing the cause of Hindi and resisting the imposition of a rival language Punjabi and thereby suggesting that Daulta was hostile to the cause of Hindi language and was supporting the Punjabi language the criticism by Sidhanti in his appeal to the electorate related to the political leanings of Daulta, and his support to the policy of the Government and was not personally directed against him. Nor did Sidhanti appeal to the voters to vote in his favour on account of his language. Such political speeches exposing the cause of a particular language and making promises or asking the people to protest against the Government of the day in respect of its language policy is not a corrupt practice within the description of corrupt practice under S. 123(3) of the Act.31. We are therefore unable to agree with the High Court that Sidhanti was guilty of any corrupt practice under S. 123(3) by appealing for votes on the ground of his language or by asking the voters to refrain from voting for Daulta on the ground of his language. | 1[ds]10. The expression "Om" is respected by the Hindus generally and has a special significance in the Hindu scriptures. It is recited at the commencement of the recitations of Hindu religious works, Macdonell in his "A practical Sanskrit Dictionary" states that "Om" is the sacred syllable used in invocations, at the commencement of prayers, at the beginning and the end of Vedic recitation, and as a respectful salutation; it is a subject of many mystical speculations. In the Sanskrit-English Dictionary by Monier-William it is said that "Om" is a sacred exclamation which may be uttered at the beginning and end of a reading of the Vedas or previously to any prayer; it is also regarded as a particle of auspicious salutation. But it is difficult to regard "Om" which is a preliminary to an incantation or to religious books, as having religious significance. "Om" it may be admitted is regarded as having high spiritual or mystical efficacy; it is used at the commencement of the recitations of religious prayers. But the attribute of spiritual significance will not necessarily impart to its use on a flag the character of a religious symbol in the context in which the expression religious symbol occurs in the section with which we are concerned. A symbol stands for or represents something material or abstract in order to be a religious symbol, there must be a visible representation of a thing or concept which is religious. To Om high spiritual or mystical efficacy is undoubtedly ascribed; but its use on a flag does not symbolise religion, or anything religious.11. It is not easy therefore to see how the Om flag which merely is a pennant on which is printed the word Om can be called a religious symbol. But assuming that the Om flag may be regarded as a religious symbol, the evidence on the record is not sufficient to establish that by Sidhanti, his election agents or any other person with his consent or the consent of his election agent. Om flag was used or exhibited, or an appeal was made by the use of the Om flag to further the prospects of Sidhanti at the election.It is in the light of these principles, the correctness of the findings of the High Court that Sidhanti was guilty of the corrupt practice of appealing for votes on the ground of his language and of asking the voters to refrain from voting for Daulta on the ground of the language of Daulta may be examined. The petition filed by Daulta on this part of the case was vague. In paragraph 11 of his petition it was averred that Sidhanti and his agents made a systematic appeal to the audience to vote for Sidhanti and refrain from voting for Daulta "on the ground of religion and language", and in paragraph 12 it was averred that in the public meetings held to further the prospects of Sidhanti in the election, Sidhanti and his agents had made systematic appeals to the elctorate to vote for him and refrain from voting for Daulta "on the ground of his religion and language". A bare perusal of the particulars of the corrupt practice so set out in paragraphs 11 and 12 are to be found in Schs.C and D clearly shows that it was the case of Daulta that Sidhanti had said that if the electorate wanted to protect their language they should vote for the Hariana Lok Samiti candidate. Similar exhortations are said to have been made by the other speakers at the various meetings. It is stated in Sch. D that resolutions were passed at the meetings urging upon the Government to "abolish Punjabi from Hariana", that many speakers said that the Hariana Lok Samiti will fight for Hindi for Hariana and that they were opposed to the teaching of Punjabi in Hariana. These exhortations to the electorate to induce the Government to change their language policy or that a political party will agitate for the protection of the language spoken by the residents of the Hariana area do not fall within the corrupt practices of appealing for votes on the ground of language of the candidate or to refrain from voting on the ground of language of the contesting candidate.28. Speeches made at political meetings held for canvassing votes must be examined in the context of the atmosphere of a political campaign and the passions which are generally aroused in such a campaign. In adjudging whether an appeal is made to the language of the candidate, a meticulous examination of the text of the speech in the serene atmosphere of the Court room picking out a word here and a phrase there to make out an offending appeal to vote for or against a candidate on the ground of language would not be permissible. A general and overall picture of the speeches delivered by Sidhanti and other speakers at the meetings disclosed nothing more than a tale of political promises, exhortations and inducements to vote at the forthcoming election for Sidhanti.29. It is not disputed that in 1957 there was a wide-spread agitation in the State of Punjab against the enforcement of the education policy of the State, incorporated in the "Sachar formula." Many persons were imprisoned or detained in the cause of the agitation for individual acts done by them. But the movement was not and could not be declared illegal. It is common ground that in the Hariana region Hindi is the predominant language of the people and if a section of the people thought that compelling the students in the Hariana region to learn Punjabi was not in their interest and in the election campaign such a view was advocated and votes were canvassed on the promise that the candidate if elected will take steps to conserve the language of the region, it would be difficult to hold that appeal as amounting to a corrupt practice. It is open to a candidate in the course of his election campaign to criticise the policies of the Government including its language policy and to make promises to the electorate that if elected he will secure a reversal of that policy or will take measures in the Legislature to undo the danger, real, apprehended or even fancied, to the language of the people. The object of the Hariana Lok Samiti was evidently to resist the imposition of Punjabi in the Hariana region and that object appears to have been made the platform in the election campaign. Thereby it could not be said that the voters were asked not to vote for Daulta on the ground of his language, assuming that it was other than Hindi. Nor can it be said that it was an appeal to the voters to vote for Sidhanti on the ground of his language.30. The evidence which has been referred to by the High Court regarding the speeches made by Badlu Ram and Harphul Singh on December 10, 1961, at Beri on the face of it shows that the speeches were an attack against Daulta in respect of his political conduct, behaviour and beliefs. The speeches made at the meetings at Sampla, Ladpur and Majra Dabuldhan read like political harangues addressed to the electorate to vote for the candidate who would project the language of the people of Hariana. At Bahadugarh also Sidhanti is stated to have claimed that he was opposed to the Government and its supporter Daulta in the matter of the language movement. The evidence also showed that Sidhanti had appealed to the voters to vote for him because he was actively associated with the Hindi agitation movement and that he was championing the cause of Hindi and resisting the imposition of a rival language Punjabi and thereby suggesting that Daulta was hostile to the cause of Hindi language and was supporting the Punjabi language the criticism by Sidhanti in his appeal to the electorate related to the political leanings of Daulta, and his support to the policy of the Government and was not personally directed against him. Nor did Sidhanti appeal to the voters to vote in his favour on account of his language. Such political speeches exposing the cause of a particular language and making promises or asking the people to protest against the Government of the day in respect of its language policy is not a corrupt practice within the description of corrupt practice under S. 123(3) of the Act.31. We are therefore unable to agree with the High Court that Sidhanti was guilty of any corrupt practice under S. 123(3) by appealing for votes on the ground of his language or by asking the voters to refrain from voting for Daulta on the ground of his language. | 1 | 5,798 | 1,556 | ### 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:
from voting for Daulta "on the ground of religion and language", and in paragraph 12 it was averred that in the public meetings held to further the prospects of Sidhanti in the election, Sidhanti and his agents had made systematic appeals to the elctorate to vote for him and refrain from voting for Daulta "on the ground of his religion and language". A bare perusal of the particulars of the corrupt practice so set out in paragraphs 11 and 12 are to be found in Schs.C and D clearly shows that it was the case of Daulta that Sidhanti had said that if the electorate wanted to protect their language they should vote for the Hariana Lok Samiti candidate. Similar exhortations are said to have been made by the other speakers at the various meetings. It is stated in Sch. D that resolutions were passed at the meetings urging upon the Government to "abolish Punjabi from Hariana", that many speakers said that the Hariana Lok Samiti will fight for Hindi for Hariana and that they were opposed to the teaching of Punjabi in Hariana. These exhortations to the electorate to induce the Government to change their language policy or that a political party will agitate for the protection of the language spoken by the residents of the Hariana area do not fall within the corrupt practices of appealing for votes on the ground of language of the candidate or to refrain from voting on the ground of language of the contesting candidate.28. Speeches made at political meetings held for canvassing votes must be examined in the context of the atmosphere of a political campaign and the passions which are generally aroused in such a campaign. In adjudging whether an appeal is made to the language of the candidate, a meticulous examination of the text of the speech in the serene atmosphere of the Court room picking out a word here and a phrase there to make out an offending appeal to vote for or against a candidate on the ground of language would not be permissible. A general and overall picture of the speeches delivered by Sidhanti and other speakers at the meetings disclosed nothing more than a tale of political promises, exhortations and inducements to vote at the forthcoming election for Sidhanti.29. It is not disputed that in 1957 there was a wide-spread agitation in the State of Punjab against the enforcement of the education policy of the State, incorporated in the "Sachar formula." Many persons were imprisoned or detained in the cause of the agitation for individual acts done by them. But the movement was not and could not be declared illegal. It is common ground that in the Hariana region Hindi is the predominant language of the people and if a section of the people thought that compelling the students in the Hariana region to learn Punjabi was not in their interest and in the election campaign such a view was advocated and votes were canvassed on the promise that the candidate if elected will take steps to conserve the language of the region, it would be difficult to hold that appeal as amounting to a corrupt practice. It is open to a candidate in the course of his election campaign to criticise the policies of the Government including its language policy and to make promises to the electorate that if elected he will secure a reversal of that policy or will take measures in the Legislature to undo the danger, real, apprehended or even fancied, to the language of the people. The object of the Hariana Lok Samiti was evidently to resist the imposition of Punjabi in the Hariana region and that object appears to have been made the platform in the election campaign. Thereby it could not be said that the voters were asked not to vote for Daulta on the ground of his language, assuming that it was other than Hindi. Nor can it be said that it was an appeal to the voters to vote for Sidhanti on the ground of his language.30. The evidence which has been referred to by the High Court regarding the speeches made by Badlu Ram and Harphul Singh on December 10, 1961, at Beri on the face of it shows that the speeches were an attack against Daulta in respect of his political conduct, behaviour and beliefs. The speeches made at the meetings at Sampla, Ladpur and Majra Dabuldhan read like political harangues addressed to the electorate to vote for the candidate who would project the language of the people of Hariana. At Bahadugarh also Sidhanti is stated to have claimed that he was opposed to the Government and its supporter Daulta in the matter of the language movement. The evidence also showed that Sidhanti had appealed to the voters to vote for him because he was actively associated with the Hindi agitation movement and that he was championing the cause of Hindi and resisting the imposition of a rival language Punjabi and thereby suggesting that Daulta was hostile to the cause of Hindi language and was supporting the Punjabi language the criticism by Sidhanti in his appeal to the electorate related to the political leanings of Daulta, and his support to the policy of the Government and was not personally directed against him. Nor did Sidhanti appeal to the voters to vote in his favour on account of his language. Such political speeches exposing the cause of a particular language and making promises or asking the people to protest against the Government of the day in respect of its language policy is not a corrupt practice within the description of corrupt practice under S. 123(3) of the Act.31. We are therefore unable to agree with the High Court that Sidhanti was guilty of any corrupt practice under S. 123(3) by appealing for votes on the ground of his language or by asking the voters to refrain from voting for Daulta on the ground of his language.
### Response:
1
### Explanation:
from voting for Daulta "on the ground of religion and language", and in paragraph 12 it was averred that in the public meetings held to further the prospects of Sidhanti in the election, Sidhanti and his agents had made systematic appeals to the elctorate to vote for him and refrain from voting for Daulta "on the ground of his religion and language". A bare perusal of the particulars of the corrupt practice so set out in paragraphs 11 and 12 are to be found in Schs.C and D clearly shows that it was the case of Daulta that Sidhanti had said that if the electorate wanted to protect their language they should vote for the Hariana Lok Samiti candidate. Similar exhortations are said to have been made by the other speakers at the various meetings. It is stated in Sch. D that resolutions were passed at the meetings urging upon the Government to "abolish Punjabi from Hariana", that many speakers said that the Hariana Lok Samiti will fight for Hindi for Hariana and that they were opposed to the teaching of Punjabi in Hariana. These exhortations to the electorate to induce the Government to change their language policy or that a political party will agitate for the protection of the language spoken by the residents of the Hariana area do not fall within the corrupt practices of appealing for votes on the ground of language of the candidate or to refrain from voting on the ground of language of the contesting candidate.28. Speeches made at political meetings held for canvassing votes must be examined in the context of the atmosphere of a political campaign and the passions which are generally aroused in such a campaign. In adjudging whether an appeal is made to the language of the candidate, a meticulous examination of the text of the speech in the serene atmosphere of the Court room picking out a word here and a phrase there to make out an offending appeal to vote for or against a candidate on the ground of language would not be permissible. A general and overall picture of the speeches delivered by Sidhanti and other speakers at the meetings disclosed nothing more than a tale of political promises, exhortations and inducements to vote at the forthcoming election for Sidhanti.29. It is not disputed that in 1957 there was a wide-spread agitation in the State of Punjab against the enforcement of the education policy of the State, incorporated in the "Sachar formula." Many persons were imprisoned or detained in the cause of the agitation for individual acts done by them. But the movement was not and could not be declared illegal. It is common ground that in the Hariana region Hindi is the predominant language of the people and if a section of the people thought that compelling the students in the Hariana region to learn Punjabi was not in their interest and in the election campaign such a view was advocated and votes were canvassed on the promise that the candidate if elected will take steps to conserve the language of the region, it would be difficult to hold that appeal as amounting to a corrupt practice. It is open to a candidate in the course of his election campaign to criticise the policies of the Government including its language policy and to make promises to the electorate that if elected he will secure a reversal of that policy or will take measures in the Legislature to undo the danger, real, apprehended or even fancied, to the language of the people. The object of the Hariana Lok Samiti was evidently to resist the imposition of Punjabi in the Hariana region and that object appears to have been made the platform in the election campaign. Thereby it could not be said that the voters were asked not to vote for Daulta on the ground of his language, assuming that it was other than Hindi. Nor can it be said that it was an appeal to the voters to vote for Sidhanti on the ground of his language.30. The evidence which has been referred to by the High Court regarding the speeches made by Badlu Ram and Harphul Singh on December 10, 1961, at Beri on the face of it shows that the speeches were an attack against Daulta in respect of his political conduct, behaviour and beliefs. The speeches made at the meetings at Sampla, Ladpur and Majra Dabuldhan read like political harangues addressed to the electorate to vote for the candidate who would project the language of the people of Hariana. At Bahadugarh also Sidhanti is stated to have claimed that he was opposed to the Government and its supporter Daulta in the matter of the language movement. The evidence also showed that Sidhanti had appealed to the voters to vote for him because he was actively associated with the Hindi agitation movement and that he was championing the cause of Hindi and resisting the imposition of a rival language Punjabi and thereby suggesting that Daulta was hostile to the cause of Hindi language and was supporting the Punjabi language the criticism by Sidhanti in his appeal to the electorate related to the political leanings of Daulta, and his support to the policy of the Government and was not personally directed against him. Nor did Sidhanti appeal to the voters to vote in his favour on account of his language. Such political speeches exposing the cause of a particular language and making promises or asking the people to protest against the Government of the day in respect of its language policy is not a corrupt practice within the description of corrupt practice under S. 123(3) of the Act.31. We are therefore unable to agree with the High Court that Sidhanti was guilty of any corrupt practice under S. 123(3) by appealing for votes on the ground of his language or by asking the voters to refrain from voting for Daulta on the ground of his language.
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Dharua Kanu Vs. State of West Bengal | Mathew, J.1. The petitioner challenges the validity of an order of detention passed under sub-section (1) read with sub-section (2) of S. 3 of the Maintenance of Internal Security Act, 1971 by the District Magistrate, Nadia on 16-3-1973. In pursuance to the Order, the petitioner was detained on 19-3-1973 The grounds of detention were communicated to the detenu. The petitioner sent a representation and that was received by the State Government on 30-3-1973. The State Government placed the case of the detenu before the Advisory Board on 31-3-1973. The representation of the petitioner was considered by the Government and it was rejected on 4-4-1973 but the same was forwarded to the Advisory Board. The Advisory Board submitted its report stating that there was sufficient cause for detention of the petitioner on 10-5-1973. The detention order was confirmed by Government on 15-5-1973.2. The ground of detention stated:"That on 24-1-1973 night between 01.00 hrs. to 02.00 hrs. you along with your associates committed theft of 4 pairs of fish plates from the running track at KM post No. 47/1, 47/3, 47/5 in between Kalyani R. S. and Kanchrapara R. S. and as a result train services were disrupted for a considerable period affecting supplies and services. You have thus acted in a manner prejudicial to the maintenance of supplies and services essential to the community."3. There can be no doubt that removing fish plates from the running track and disrupting service for a considerable period would affect the maintenance of supplies and services essential to the community. It cannot be said that the satisfaction of the detaining authority on the basis of this single occurrence that if the petitioner were to be left at large he would indulge in similar activities in future and thus act in a manner prejudicial to the maintenance of supplies and services essential to the community was not based on adequate materials.4. We also do not think that there is any merit in the contention of counsel for the petitioner that the State Government went wrong in forwarding the representation to the Advisory Board after rejecting it. In law, the State Government was bound to consider the representation before forwarding it to the Advisory Board. It may be recalled that the State Government rejected the representation on 4-4-1973 and the same was forwarded to the Board. And it was after considering the representation that the Board made the report. We see no circumstances vitiating the order of detention. | 0[ds]3. There can be no doubt that removing fish plates from the running track and disrupting service for a considerable period would affect the maintenance of supplies and services essential to the community. It cannot be said that the satisfaction of the detaining authority on the basis of this single occurrence that if the petitioner were to be left at large he would indulge in similar activities in future and thus act in a manner prejudicial to the maintenance of supplies and services essential to the community was not based on adequate materials.4. We also do not think that there is any merit in the contention of counsel for the petitioner that the State Government went wrong in forwarding the representation to the Advisory Board after rejecting it. In law, the State Government was bound to consider the representation before forwarding it to the Advisory Board. It may be recalled that the State Government rejected the representation onand the same was forwarded to the Board. And it was after considering the representation that the Board made the report. We see no circumstances vitiating the order of detention. | 0 | 448 | 201 | ### Instruction:
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Mathew, J.1. The petitioner challenges the validity of an order of detention passed under sub-section (1) read with sub-section (2) of S. 3 of the Maintenance of Internal Security Act, 1971 by the District Magistrate, Nadia on 16-3-1973. In pursuance to the Order, the petitioner was detained on 19-3-1973 The grounds of detention were communicated to the detenu. The petitioner sent a representation and that was received by the State Government on 30-3-1973. The State Government placed the case of the detenu before the Advisory Board on 31-3-1973. The representation of the petitioner was considered by the Government and it was rejected on 4-4-1973 but the same was forwarded to the Advisory Board. The Advisory Board submitted its report stating that there was sufficient cause for detention of the petitioner on 10-5-1973. The detention order was confirmed by Government on 15-5-1973.2. The ground of detention stated:"That on 24-1-1973 night between 01.00 hrs. to 02.00 hrs. you along with your associates committed theft of 4 pairs of fish plates from the running track at KM post No. 47/1, 47/3, 47/5 in between Kalyani R. S. and Kanchrapara R. S. and as a result train services were disrupted for a considerable period affecting supplies and services. You have thus acted in a manner prejudicial to the maintenance of supplies and services essential to the community."3. There can be no doubt that removing fish plates from the running track and disrupting service for a considerable period would affect the maintenance of supplies and services essential to the community. It cannot be said that the satisfaction of the detaining authority on the basis of this single occurrence that if the petitioner were to be left at large he would indulge in similar activities in future and thus act in a manner prejudicial to the maintenance of supplies and services essential to the community was not based on adequate materials.4. We also do not think that there is any merit in the contention of counsel for the petitioner that the State Government went wrong in forwarding the representation to the Advisory Board after rejecting it. In law, the State Government was bound to consider the representation before forwarding it to the Advisory Board. It may be recalled that the State Government rejected the representation on 4-4-1973 and the same was forwarded to the Board. And it was after considering the representation that the Board made the report. We see no circumstances vitiating the order of detention.
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3. There can be no doubt that removing fish plates from the running track and disrupting service for a considerable period would affect the maintenance of supplies and services essential to the community. It cannot be said that the satisfaction of the detaining authority on the basis of this single occurrence that if the petitioner were to be left at large he would indulge in similar activities in future and thus act in a manner prejudicial to the maintenance of supplies and services essential to the community was not based on adequate materials.4. We also do not think that there is any merit in the contention of counsel for the petitioner that the State Government went wrong in forwarding the representation to the Advisory Board after rejecting it. In law, the State Government was bound to consider the representation before forwarding it to the Advisory Board. It may be recalled that the State Government rejected the representation onand the same was forwarded to the Board. And it was after considering the representation that the Board made the report. We see no circumstances vitiating the order of detention.
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Agricultural Produce Market Committee Vs. Biotor Industries Ltd. | (2) from page 79 to 86, the fact not denied by the Market Committee, which also establishes the case of the Company with sufficient declaration and a certificate that the abovementioned agricultural produce, namely, castor seeds, has been brought from outside the limits of the market area and brought within the limits of market area for industrial purpose, and for production of castor oil and other byproducts. Thus, the Company fully complied with the requirement of Rule 48 of the Rules and is entitled for exemption from payment of market fees. Therefore, exercise undertaken by the learned Single Judge to find out the place of sale, so as to bring the case of the Company under Rule 48, subrule (1) of the Rules, is of no help and the finding, on that basis, arrived at by the learned Single Judge, will have to be quashed and set aside in the backdrop of the above discussion and the fact situation.” 5. Thereafter the amended provisions of Sections 28A and 31D of the Act are referred to by the Division Bench along with Section 28(1) of the Act and Rule 48(2) of the Rules as well as sub-sections 2(a)and (b) of Section 28 of the amended provisions of the Act to come to the conclusion, that in view of the factual legal situation, the Revisional Authority had rightly interfered with the demand notices issued by the APMC and therefore held that Civil Appeal filed by the APMC lacks merit and dismissed the same and the interim relief granted was set aside and consequently Rule was also discharged. The correctness of the same is challenged here by urging various questions of law and grounds in support of the same. The same need not be adverted to in this judgment for the reason that the learned Division Bench of the Gujarat High Court while examining the directions in interim order dated 13.11.2008 given in Special Civil Application No. 9705 of 2008 filed by the APMC has gone into the merits of the case. Considerable reliance was placed upon the Division Bench Judgment in Letters Patent Appeal No. 139 of 2006 by the counsel for the respondent-Company, contending that the amendment Act has not brought any change to Section 28 of the Act and further submitted that the Revisional Authority has rightly held that the APMC has no legal right to levy market fee on the respondent-Company. The appellant-APMC in this appeal has submitted that the Division Bench of the High Court, instead of examining the correctness of the discretionary powers exercised by the learned single Judge in Special Civil Application No. 9705 of 2008 and passing the interim order with certain observations, has passed the orders on merits of the civil application without adverting and examining the grounds urged in the petition, which approach of the Division Bench is not correct and it should not have pronounced decision on the merits of the Special Civil Application while examining the correctness of the interim order passed by the learned single Judge. The APMC has also sought declaratory relief to declare Rule 48(2) as ultra vires to Section 28A of the amended provision of the Act and submitted that the Division Bench of the High Court failed to appreciate the same and also that Section 28 of the Act deals with levy of market fee which is a mandatory provision that does not give any exemption to respondent-Company and as such a Rule cannot override provisions of the Act. The Division Bench of the High Court has simply affirmed the order of the Revisional Authority by setting aside the assessment order passed by the APMC vide notices dated 5.03.2008 and 15.4.2008 without awaiting the decision to be rendered by the learned single Judge on the legality and validity of the Rule 48(2) in the backdrop of Section 28, of the amended provision.6. After hearing learned counsel for the parties, we have pronounced the judgment today in Civil Appeal No. 3130 of 2008 on similar demand notices demanding the market fee from the respondent-Company on the castor seeds bought in the market area for the purpose of manufacturing of oil. We hold that the demand for the market fee made by the APMC for castor seeds is justified as per the reasoning given in our judgment in the connected Civil Appeal No. 3130 of 2008, that the castor seeds were bought in the market area and not brought into the market area. It would suffice to say that the order dated 10.02.2009 of the Division Bench of the High Court in Letters Patent Appeal No. 1383 of 2008 setting aside the order dated 13.11.2008 of the learned single Judge in Special Civil Application No.9705 of 2008 and affirming the order dated 30.06.2008 of the Revisional Authority in Revision Application No.69 of 2008, without examining the correctness of Rule 48(2) of the Rules and applying the Division Bench Judgment rendered in Letters Patent Appeal No 139 of 2006 without considering the factual matrix and therefore, the same is liable to be set aside. Accordingly, we set aside the same and remand the matter to the High Court to place the matter before the roster of learned single Judge to examine the validity of Rule 48(2) of the Rules, as questioned with reference to Section 28A of the amended provision of Act No. 17 of 2007 and the impugned order of the Revisional Authority. The appellant may also approach the State Government to amend the Rules by deleting Rule 48(2) of the Rules. It is open for the appellant to either press the Special Civil Application to be decided on merits with regard to the validity of Rule 48(2) and also examine the impugned order of levying market fees on the goods purchased by the respondent-Company on the basis of facts and material evidence or to make revision application to the State Government seeking for the deletion of Rule 48(2) by amending the Rules with the above said observation. | 1[ds]Answer to Point Nos. 1 to 39. The point Nos. 1 to 3 are answered together as they are inter-related with each other by assigning the following reasons:It would be necessary for this Court to refer to the definition of ‘Agriculturalunder Sections 2(i) and provisions relating to levy of market fee under Section 28 of the Act and under Rule 48(1) of the Rules for the purpose of appreciating the factual matrix with reference to the rival legal contentions urged on behalf of thens all produce, whether processed or not, of agriculture, horticulture and animal husbandry, specified in the Schedule.Section 28: The market committee shall, subject to the provisions of the rules and the maxima and minima from time to time prescribed levy and collect fees on the agricultural produce bought or sold in the market area:Provided that the fees so levied may be collected by the Market Committee through such agents as it may appoint.Rule 48: Market fees:- (1) The market committee shall levy and collect fees on agricultural produce bought or sold in the market area at such rate as may be specified in the by-laws subject to the following minima and maxima vis.,1) rates when levied ad valorem shall not be less than 30 paise and shall not exceed [pic]2 (two) per hundred rupees.2) Rates when levied in respect of cattle, sheep or goat shall not be less than 25 paise per animal and shall not exceed [pic]4 per anmimal.Explanation- For the purposes of this Rule a sale of agricultural produce shall be deemed to have taken place in a market area if it has been weighed or measured or surveyed or delivered in case of cattle in the market area for the purpose of sale, notwithstanding the fact that the property in the agricultural produce has by reason of such sale passed to a person in a place outside the market area.(2) No fee shall be levied on agricultural produce brought from outside the market area into the market area for use therein by the industrial concerns situated in the market area of for export and, in respect of which declaration has been made and a certificate has been made and a certificate has been obtained in Form V:-Provided that if such agricultural produce brought into the market are for export is not exported or removed therefrom before the expiry of twenty days from the date on which it was so brought, the market committee shall levy and collect fees on such agricultural produce from the person bringing the produce into the market area at such rates as may be specified in the by-laws subject to the maximum and minimum specified in sub-rule (i):Provided that no fee shall be payable on a sale or purchase to which sub-section (3) of Section 6 applies.It is an undisputed fact that the respondent-Company is an industrial concern which has been undertaking manufacture of castor oil out of the castor seeds which are declared as agricultural produce in the Schedule to the Act vide notification issued by the Directorate of APMC, Baroda.11.2005.12. The learned single Judge after giving opportunity to the respondent-Company and hearing both the learned counsel appearing on behalf of the parties has held that castor seeds have been bought within the market area of APMC, therefore, sub-rule (1) of Rule 48 is applicable to the fact situation and not sub-rule (2) of Rule 48 upon which reliance was placed by thecounsel. In arriving at the said conclusion the learned single Judge has referred to the factual aspects with reference to certain documents such as invoices, bill receipts etc. exchanged between the respondent-company and its suppliers of castor seeds. The bill issued by one Manish Trading Company of Naroda, Ahmedabad dated 03.05.2004 for supply of 150 bags of castor seeds weighing 75 kilos each was examined. The rate charged was [pic]305/- per 100 kg. The total quantity shown was 112.50 quintals and the total amount claimed was [pic]1,71,562/-. In the said bill dated 03.05.2004, it was indicated that payment was yet to be made. At page 28 to the compilation, there is a purchase voucher/remittance note issued by the respondent-Company. It is not in dispute that the said purchase voucher/remittance note pertains to the same consignment transported by the Manish Trading Company under the bill dated 03.05.2004. The purchase voucher indicates that the quantity of the castor seeds received was short by 37.50 kilos. Weight of bags of 150 kilos was also deducted from the quantity of castor seeds. The agreed rate of [pic]305/- for 100 kilos remained constant and the respondent-Company therefore agreed to remit a total amount of [pic]1,70,991/- to the Manish Trading Company referred to supra. To the query from the court, the learned counsel appearing on behalf of the company, on instructions, made submissions that consignments were received from the sellers within the market area for the purpose of finding out shortfall or pilferage and the payment is made to the extent of actual quantity received. The learned single Judge has also referred to the total quantity of castor seeds weighing 112.50 quintals which was transported to the respondent-Company by Manish Trading Company and it had made payment after weighing consignment and after finding out the correct weight of the castor seeds received by it.13. On the basis of the said material facts the learned single Judge arrived at the conclusion that the respondent-Company placed order for purchase of castor seeds from its suppliers from outside the market area but no payment was immediately made for the same. On the demand of the respondent-Company, the quantity of castor seeds so requisitioned by it was transported by the supplier which was received by it within the market area. It is an undisputed fact that the consignment so received was weighed by the Company within the market area. Thereafter, on finding out the exact weight of castor seeds received by it, the payment at the agreed rate was made by the Company to the supplier. Therefore, the learned single Judge came to the conclusion on the basis of appreciation of the aforesaid facts and held that the sale was not effected till the consignment was received by the respondent-Company and the same was weighed within the market area. The learned single Judge has rightly rejected the assertion made by the learned counsel on behalf of the Company holding that in case of shortfall or loss or damage during transport, the seller could claim damage from the transporter and that would further demonstrate that the respondent-Company did not become owner of the goods till it took the physical delivery thereof, weighing the same and satisfying itself about the quantity received by it. It was held that it was not a mere formality to find out the quantity by it but it has the essential element of making payment depending on the extent of quantity received and in case of any drastic shortfall in the quantity, the issue would be between the supplier and the transporter. Further finding was recorded that if against the quantity of 100 quintals of castor seeds supplied by the trader, the respondent-Company received only half of it on account of loss, damage or pilferage, the company would make payment only for such quantity leaving it for the trader to recover the damages from the transporter. There would also be a case where on account of some untoward and unforeseen circumstances, such as natural calamity or theft, the respondent-Company did not receive the full quantity of castor seeds, the payment shall be made only for the quantity received by it and not for the entire quantity to be supplied by the trader. The learned single Judge has further rightly recorded the finding of fact that when the castor seeds reach the market area, it was weighed by the Company and payment thereof was agreed to be made to the tune of quantity received and till then the castor seeds continue to be in the ownership of the seller. The Company becomes the owner of the property only once the exact weight of the castor seeds was ascertained and purchase voucher was obtained. The learned single Judge rightly held that APMC is justified in contending that the sale of castor seeds did take place within the market area and the appellant was authorized to charge fees from the respondent-Company for such purchase. Therefore, the learned single Judge held that the castor seed was bought by the respondent-Company within the market area of APMC, Baroda and therefore Rule 48(1) of the Rules is applicable to the fact situation and not Rule 48(2) as contended by the counsel. The said conclusion was arrived at after referring to the provisions of Sections 19, 20 and 21 of the Sale of Goods Act, 1930 and the Privy Council judgment in Hoe Kim Seing v. Maung Ba Chit [AIR 1935 PC 182 ]. Sections 19, 20 and 21 of Sale of Goods Act are extracted hereunderProperty passes when intended to pass.-(1) Where there is a contract for the sale of specific or ascertained goods the property in them is transferred to the buyer at such time as the parties to the contract intend it to be transferred.(2) For the purpose of ascertaining the intention of the parties regard shall be had to the terms of the contract, the conduct of the parties and the circumstances of the case.(3) Unless a different intention appears, the rules contained in Section 20 to 24 are rules for ascertaining the intention of the parties as to the time at which the property in the goods is to pass to the buyer.20. Specific goods in a deliverable state.- Where there is an unconditional contract for the sale of specific goods in a deliverable state, the property in the goods passes to the buyer when the contract is made, and it is immaterial whether the time of payment of the price or the time of delivery of the goods, or both, is postponed.21. Specific goods to be put into a deliverable state.- Where there is a contract for the sale of specific goods and the seller is bound to do something to the goods for the purpose of putting them into a deliverable state, the property does not pass until such thing is done and the buyer has noticeabove judgment of the Privy Council is referred to by this Court in the decision of Agricultural Market Committee v. Shalimar Chemical Works Limited [AIR 1997 SC page 2502] wherein the learned single Judge rightly extracted the following paragraph from the said judgment and it is worthwhile to extract the same hereunderIn order that Section 20 is attracted, two conditions have to be fulfilled :i) the contract of sale is for specific goods which are in a deliverable state; andii) the contract is an unconditional contract. If these two conditions are satisfied, Section 20 becomes applicable immediately and it is at this stage that it has to be seen whether there is anything either in the terms of the contract or in the conduct of the parties or in the circumstances of the case which indicates a contrary intention. This exercise has to be done to give effect to the opening words, namely,a different intentionoccurring in Section 19(3). In Hoe Kim Seing v. Maung Ba Chit, it was held that intention of the parties was the decisive factor as to when the property in goods passes to the purchaser. If the contract is silent, intention has to be gathered from the conduct and circumstances of the case.Therefore, the learned single Judge on the basis of documents which are all admitted documents came to the right conclusion and held that the castor seeds were bought by the respondent-Company within the market area. Therefore, APMC has rightly made assessment of market fee and levied the same as per Section 28 of the Act, which assessment order has been erroneously set aside by the Revisional Authority without proper appreciation of facts and applying the relevant provisions namely, Section 28 and Rule 48(1) and came to the erroneous conclusion and held that the goods bought were brought from outside the market area for the purpose of manufacturing oil by the Company in its factory. Therefore, the contention that these are not exigible, was rightly set aside by the learned single Judge and it was held that the respondent-Company is liable to pay market fee which is cess on the purchase of castor seeds, justifying the claim of the APMC. The order dated 22.12.2005 was questioned by the Company filing Letters Patent Appeal No.139 of 2006 and that order was erroneously set aside by the Division Bench by answering the point No.1 in favour of the Company after referring to Rule 48(2) and erroneously applying the aforesaid judgments. The learned single Judge rightly placed strong reliance on the said judgment referred to supra and came to the right conclusion and held that the sale of goods of castor seeds is within the market area of APMC. The learned Division Bench on the other hand, further placed strong reliance upon Rule 48(2) by placing reliance upon Form No. V of the Rules, which is the Form of declaration and certificate produced by the Company which were found from pages 79 to 86 which are totally irrelevant for the purpose of finding out whether the goods i.e. the castor seeds were bought by the Company within the market area of APMC or not.15. The factual matrix is supported by the documents produced at Annexureto the Special Civil Application No. 13606 of 2005 which are the documents of the respondent-Company which have been extensively referred to by the learned single Judge in his judgment at para 11 to come to the conclusion holding that the castor oil seeds were bought by the respondent-Company within the market area of APMC and, therefore, he has rightly held that Rule 48(2) is not applicable to the fact situation as claimed by the respondent-Company and the reliance placed upon Form No. V which is the Form of declaration and certificate obtained from the APMC seeking exemption from payment of market fee on the castor seeds brought by it from outside APMC area, is contrary to the material evidence on record and therefore, the Division Bench has gravely erred in reversing the finding of fact recorded by the learned single Judge on proper appreciation of undisputed material evidence on record and recorded the finding of fact with reference to Sections 19, 20 and 21 of the Sale of Goods Act and the judgment of Privy Council referred to supra which has been referred to by this Court in the Shalimar Works Ltd. case (supra) wherein the learned single Judge rightly came to the conclusion that the castor seeds were purchased by the Company in the market area for the relevant period in question in respect of which the assessment order was passed levying the market fee and directing the Company to pay the same was legal and valid. The same came to be erroneously set aside by the Revisional Authority without proper application of mind and law to the fact situation and the same was then set aside by the learned single Judge of the High Court. The said findings of the learned single Judge have been erroneously set aside by the learned Division Bench at the instance of the respondent-Company in LPA No.139 of 2006. Therefore, we have to hold that the said finding of the Division Bench in reversing the legal and valid finding of fact recorded by the learned single Judge on proper appreciation of facts and undisputed evidence on record and rightly applying the provisions of the Sale of Goods Act referred to supra and Rule 48(1) is erroneous. Therefore, we have to set aside the said order passed in LPA No. 139 of 2006 and restore the order of the learned single Judge passed in special civil application No. 13606 of 2005 and allow the C.A. No. 3130 of 2008.Answer to Point No. 416. The point No. 4 is answered against the APMC upholding the order of the learned single Judge affirmed by the Division Bench of the High Court in dismissing the Letters Patent Appeal No. 195 of 2006 of the appellant by assigning the following reasons :-It is an undisputed fact that oil cake is included in the Schedule as an agricultural produce which is exigible agricultural produce in terms of section 2(1)(i)of the Act. Sub-rule (iv) therein contains oil seeds. Item No. 8 therein is castor seed and Item No. 11 therein is oil cakes.The oil cake is the exigible agricultural produce for the purpose of levying market fee upon such produce. On the basis of the factual and rival contentions and on the basis of material evidence produced by the parties the learned single Judge has arrived at the finding held at paragraph 23 with regard to the process undertaken by the respondent-Company for extraction of castor oil from the castor seeds purchased by it. The by-product which is produced by the respondent-Company is de-oiled cake which contains less than 1% of castor oil and castor seeds have to undergo a complex process so as to extract maximum possible oil out of it. At the first stage, after cleaning and separating raw seeds from husk etc. the castor seeds are crushed through mechanical devices to extract oil from the same. After the mechanical process which is involved in extracting substantial amount of oil in the oil cake, the residual product is the de-oiled cake which is sold in the market. The same does not fall under the head of oil cake. The process which is adopted for the purpose of getting the said by-product of de-oiled cake has been extensively referred to in the paragraph 23 of the order of the learned single Judge and it is worthwhile to extract the sameprocess undertaken by respondent no.2 for extraction of castor oil from the castor seeds purchased by it is not seriously in dispute. The fact that ultimately by-product which respondent no.2 claims to be de-oiled cake which the respondent no.2 sells in the market and on which the petitioner is seeking to levy market fee contains less than 1% castor oil is also not seriously in dispute. The respondent no.2 has explained the complex process through which the castor seeds are made to undergo so as to extract maximum possible oil out of it. At the first stage after cleaning and separating raw seeds from husk etc., the castor seeds are crushed through mechanical devices to extract oil from the same. This mechanical process would obviously leave substantial amount of oil in the oil cake which may come into existence after extraction of oil. If this residual product was sold by respondent no.2 in the market, same would squarely fall under the head of oil cake. To that extent there is no serious dispute raised by the respondent no.2 also. However, respondent no.2 does not sale the oil cake which comes into existence by extracting oil from castor seeds through the above mentioned mechanical process. The oil cake so produced is made to undergo further extensive sophisticated and complex process by which instead of leaving 10% oil contents in the oil cake, the percentage of residue of the oil is brought down to less than 1%. By sophisticated means of operation, the wastage of oil is minimised and the oil extraction percentage is improved. Ultimately therefore, final by-product which comes into existence and which is sold by the respondent no.2 in the market is de-oiled cake having less than 1% oil contents. It can thus be seen that oil cake and de-oiled cake are two separate products. By very nature of terminology used for both products it would indicate that oil cake would contain the residue of oil seeds which would also include some percentage of oil. It is only when almost entirely the oil cake is devoid of oil contents that it is labeled as de-oiled cake. Gujarat Sales Tax Act also takes cognizance of two different products namely oil cake and de-oiled cake. I am only drawing further support from these entries contained in Gujarat Sales Tax Act and not for the purpose of interpretation of the term so defined in the said Act. As noted said Act does not define the term oil cake. From the available material on record, such as difference in the contents of oil in oil cake and de-oiled cake, cognizance of different terms namely oil cake and de-oiled cake in the Gujarat Sales Tax Act, the difference in the process of oil extraction which would lead to by-product of the oil cake and de-oiled cake, the certificate produced on record by the respondent no.2 indicating the difference of percentage of oil contents in oil cake and de-oiled cake, it can be seen that two are independent, separate and distinct products and so understood in common parlance as well. The termed in the Schedule therefore, in my opinion would not include deoiled cake. The attempt on the part of the petitioner- Agriculture Produce Market Committee to levy market fees on sale and purchase of such de-oiled cake in my opinion is not permissible. Schedule to the Act specifies oil cake as one of the agricultural produces on which market fee can be charged. In view of my conclusion, that term oil cake does not include deoiled cake, I find that petitioner is not authorised to charge market fees on the de-oiled cake sold by the respondent no.2. The difference in process which would lead to obtaining oil cake and de-oiled cake was also noticed by Honble Supreme Court in the case of State of A.P. and others v. M/s. Modern Proteins ltd. [1994 Supp (2) SCC 496] on which reliance was placed by the learned advocate for the respondent no.2. It was noted that groundnut seeds obtained after the process of decortication are of high grade quality, rich in proteins but free from harmful materials processed in the expeller and the outcome is groundnut oil and groundnut oil cake. The groundnut oil cake again is pressed through the solvent in whichis sprayed resultantly groundnut oil and groundnut de-oiled cakes are obtained.Further reference was made to the Gujarat Sales Tax Act wherein the oil cake and de-oiled cake are considered to be two different products from the entries contained in the said Act and the Schedule. The said entries are referred to for the purpose of interpretation of the terms so defined in the said Act. The term oil cake is not defined in the APMC Act and further on the basis of the available material on record which elaborates the difference in the contents of oil in oil cake and de-oiled cake, cognizance of different terms namely, oil cake and de-oiled cake in the Gujarat Sales Tax Act, difference in the process of oil extraction which would lead to by-product of the oil cake and de-oiled cake, we have to hold that de-oiled cake is a completely different product than oil cake. Also we have to refer to the judgment of this Court in the case of State of A.P. and Ors. v. Modern Proteins Ltd. [(1994) Supp (2) SCC 496] on which strong reliance was placed by the respondent-Company wherein in the said case, it was noted that the groundnut seeds obtained after the process of decortication are of high grade quality, rich in proteins but free from harmful materials processed in the expeller and the outcome is groundnut oil and groundnut oil cake. The groundnut oil cake again is pressed through the solvent in whichis sprayed resultantly groundnut oil and groundnut de-oiled cakes are obtained.On the basis of the said decision and applying it to the fact situation on hand with regard to the process adopted for obtaining by-product of de-oiled cake, it is clear that it is different from the oil cake as it contains oil less than 1% and it is not included in the Schedule for the purpose of charging market fee, therefore, the learned single Judge accepting the case against levying the market fee on the de-oiled cake, rejected the prayer in this regard in Special Civil Application No. 13606 of 2005. The same was questioned in the Letters Patent Appeal filed by the APMC that has been examined by the Division Bench with reference to rival legal contentions and it has answered the said point against the APMC by extracting paragraph No. 23 from the judgment of the learned single Judge.18. The by-product obtained out of the manufacturing process is not oil cake but is de-oiled cake after undergoing the process which would lead to obtaining de-oiled cake. After noticing the judgment of the Supreme Court in the case of Modern Proteins Ltd. (supra), the learned single Judge came to the conclusion that de-oiled cake containing less than 1% oil is not mentioned in the Schedule as per Section 2(1)(i) of the APMC Act as ‘agriculturalby the authority and further held that the above produce is totally different from the oil cake. Therefore, no market fee can be levied by the APMC to be paid by the respondent-Company. The said finding of fact of the learned single Judge has been rightly concurred with by the Division Bench of the High Court. The same was sought to be set aside by the APMC. We have carefully examined the correctness of the concurrent finding of fact arrived at by the Division Bench on this aspect of the matter. We are in agreement with the view taken by the High Court of Gujarat in holding that the by-product of the manufacture in producing the oil from the castor seeds is only de-oiled cake and is not one of the Schedule items in the Notification for the purpose of levying market fee. Therefore, we do not find any good reason whatsoever to interfere with the concrete finding of fact on this aspect of the matter. Hence, we have to affirm the concrete finding of fact recorded by the learned single Judge and of the Division Bench of the High Court. We do not find any valid and cogent reasons to arrive at a different conclusion other than the view taken by them as the said view is based on a proper appreciation of the factual matrix and the statutory provisions as de-oiled cake is not mentioned in the Schedule to the Act and the Notification. The item which is mentioned is oil cake which is different and distinct from the de-oiled cake as distinguished by this Court in the Modern Proteins Ltd. case referred to supra. The High Court has rightly applied the said decision to the fact situation. Therefore, we are of the view that the said finding of fact recorded by the High Court is legal and valid. The same does not call for interference. Accordingly, the appeal of the APMC on this aspect of the matter must fail as we are affirming the order of the Division Bench of the High Court on the levy of the market fee on de-oiled cake by directing that the amount in relation to the market fee levied on de-oiled cake is to be reduced.19. For the reasons recorded by us on the point Nos. 1 to 3 in C.A. No. 3130 of 2008 the APMC must succeed. Accordingly, we allow the appeal and set aside the order of the Division Bench of the High Court in Letters Patent Appeal No. 139 of 2006 and uphold the levy of market fee on the castor seeds purchased by the respondent-Company for the period in question, and it is liable to pay the said market fee.20. For the reasons recorded in answer to the point No. 4, we dismiss the C.A. No. 3131 of 2008 filed by APMC, Baroda against order passed in Letters Patent Appeal No. 195 of 2006, upholding the order of the learned single Judge which was affirmed by the Division Bench of the High Court.21. In view of the aforesaid reasons, Civil Appeal No.3130 of 2008 is allowed and Civil Appeal No.3131 of 2008 is dismissed. There will be no order as to costs.his matter is connected to the Civil Appeal Nos. 3130-3131 of 2008 upon which we have pronounced the judgment today.2. The appellant-APMC herein challenged the correctness of the judgment dated 10.2.2009 passed by the Division Bench of Gujarat High Court in Letters Patent Appeal No. 1383 of 2008 in Special Civil Application No. 9705 of 2008 with Civil Application No. 13651 of 2008 whereby it has dismissed the Special Civil Application holding that the same lacks merit and also vacated interim relief granted by the learned single Judge of High Court. Being aggrieved, the APMC filed this Civil Appeal framing certain questions of law and urging grounds in support of the same, praying to set aside the impugned judgment and order and to pass such other order as may be deemed fit and proper in the circumstances of the case.3. The brief necessary facts for the purpose of examining the legality and validity of the impugned order are stated herein:-Theappellant-APMC had filed Special Civil Application No. 9705 of 2008 under Articles 14, 19, 21 and 226 of the Constitution of India before the learned single Judge of the High Court impleading the respondent-Company and the State of Gujarat as parties, seeking relief for the issue of writ of certiorari or any other appropriate writ, order or direction, to set aside order dated 30.6.2008 passed in Revision Application No. 69 of 2008 by respondent No.2–the State (Revisional Authority) and further sought for declaratory relief to declare that the APMC is entitled to levy market fee on the respondent-Company for purchase of castor seeds as per the demand notices dated 5.3.2008 and 15.4.2008 given to the respondent- Company. Further, by way of amendment to the prayer column, it has sought for declaratory relief to declare Rule 48(2) of the Gujarat Agricultural Produce Markets Rules, 1965 (for shortas ultra vires of Sections 28A and 59 of the Gujarat Agricultural Produce Markets Act, 1963 (hereinafter referred to as) urging various facts and legal grounds. The amended Sections were added to the Act vide the Gujarat Agricultural Produce Markets (Amendment) Act, 2007.4. The learned single Judge of the High Court after hearing the learned counsel for the parties passed an interim order on 13.11.2008 in Special Civil Application No. 9705 of 2008 referring to Section 28(1) of the Act and amended Section 28(2)(a),(b),(c),(d) & (e) of the Act and issued Rule to examine the correctness of Rule 48(2) in view of the amendment to the Act incorporating Section 2(a) to Section 28 of the Act and directed the respondent-Company by giving directions, particularly direction Nos. 2 and 3 which are extracted hereunderRespondent No.2 deposits 50% of the outstanding market fees with this Court and furnishes an undertaking before this Court for the remaining 50% of the amount to the effect that they shall pay up the remaining market fees with interest as and when it is so ordered by this Court. Such amount shall be invested, if deposited, by the Registrar in the FDR initially for a period of two years, renewable further with the State Bank of India, Gujarat High Court Branch, Ahmedabad.(3) Respondent No.2 shall be at liberty to comply with either of the conditions within two months from the date of intimation and calculation of the Market Fees recoverable by the Market Committee from respondentat paras 14 and 15 of the order dated 13.11.2008 of learned Single Judge, certain observations were made, which readIt is also observed and directed that it would be open to the petitioner to make representation to the State Government, which is Rule Making Authority, for amendment of the Rule 48 in light of the amended provisions of Section 28 of the Agriculture Produce Market Committee. If such representation is made, the pendency of this petition, shall not operate as a bar to the Rule Making Authority for bringing about amendment, as may be permissible in law.15. It would be open to either side to move this Court for final hearing if the rules are amended or the matter before the Apex Court is finally decided, whichever iscorrectness of this interim order dated 13.11.2008 was challenged by the respondent-Company by filing Letters Patent Appeal No. 1383 of 2008 urging various legal contentions. The Division Bench examined whether sub-section (2)(a) added to Section 28 of the Act by amendment Act No. 17 of 2007 has the effect of taking away the substratum of the Division Bench judgment dated 24.4.2007 passed in Letters Patent Appeal No. 139 of 2006 in connected matters. The Division Bench after referring to certain relevant facts and Rule 48(2) of the Rules, came to its conclusion on the basis of the judgment rendered by the Division Bench of High Court in the Letters Patent Appeal No. 139 of 2006 and connected matters for the interpretation of Section 28 of the Act read with Rule 48(2) of the Rules. The relevant paragraph 8 from the Division Bench judgment rendered in the aforesaid Letters Patent Appeal filed by the respondent-Company is extractedSection 28 of the Act empowers the Market Committee to levy and collect fees on notified agricultural produce bought or sold in the market area, subject to the provisions of the Rules and at the rate maxima and minima, from time to time prescribed. Thus, the power of the Market Committee to levy prescribed fees is envisaged in the above section. In juxtaposition to the above section, it is necessary to refer to Rule 48 of the Rules, and more particularly Rules 48 and 49, placed in Part VI with heading Fees, Levy and Collections, pertaining to market fees. Rule 48, sub-rule (1) and the explanation is highlighted by the learned Single Judge and discussion has taken place on the basis of certain material available on record with regard to sale of castor seeds by one Manish Trader of Ahmedabad to the Company and after relying upon Sections 19 to 22 of the Sale of Goods Act, the learned Single Judge found that sale does take place within the market area and, therefore, the Company is liable to pay market fees. However, sub-rule (2) of Rule 48 of Part VI of the Rules clearly prescribes that no fee shall be levied on agricultural produce brought from outside the market area into the market area for use therein by the industrial concerns situated in the market area or for export and, in respect of which declaration has been made and a certificate has been obtained in Form V. Thus, the above sub-rule (2) of Rule 48 nowhere prescribes that agricultural produce brought from outside the area of market committee has to be by the industrial concern itself. The preceding word is brought and not bought. Even the facts of the present case are examined, nowhere it is mentioned that purchase took place within the area of the market committee. In the affidavit in reply filed by the Company, it is clearly mentioned that purchase of castor seeds did take place outside the market area and no sale takes place within the market area. Even, weighment, etc. is also done outside the market area and bills are prepared accordingly and, that too, after selection by the representative of the Company. Not only that, but, the Company has produced bills of one Manish Traders at page 109 of Letters Patent Appeal No.195 of 2006, having numbered as Bill No.93, dated 3rd May 2004, is clearly indicative of the fact that sale does not take place within the area of Market Committee, Baroda. Besides, the octroi paid to the Baroda Municipal Corporation on the goods, namely, castor seeds imported and produced at page 107 is also suggestive of the fact that sale does not take place within the area of market committee. Even, the Company has produced number of forms prescribed under Rule 48, sub rule (2) from page 79 to 86, the fact not denied by the Market Committee, which also establishes the case of the Company with sufficient declaration and a certificate that the abovementioned agricultural produce, namely, castor seeds, has been brought from outside the limits of the market area and brought within the limits of market area for industrial purpose, and for production of castor oil and other byproducts. Thus, the Company fully complied with the requirement of Rule 48 of the Rules and is entitled for exemption from payment of market fees. Therefore, exercise undertaken by the learned Single Judge to find out the place of sale, so as to bring the case of the Company under Rule 48, subrule (1) of the Rules, is of no help and the finding, on that basis, arrived at by the learned Single Judge, will have to be quashed and set aside in the backdrop of the above discussion and the fact situation.Thereafter the amended provisions of Sections 28A and 31D of the Act are referred to by the Division Bench along with Section 28(1) of the Act and Rule 48(2) of the Rules as well as sub-sections 2(a)and (b) of Section 28 of the amended provisions of the Act to come to the conclusion, that in view of the factual legal situation, the Revisional Authority had rightly interfered with the demand notices issued by the APMC and therefore held that Civil Appeal filed by the APMC lacks merit and dismissed the same and the interim relief granted was set aside and consequently Rule was also discharged. The correctness of the same is challenged here by urging various questions of law and grounds in support of the same. The same need not be adverted to in this judgment for the reason that the learned Division Bench of the Gujarat High Court while examining the directions in interim order dated 13.11.2008 given in Special Civil Application No. 9705 of 2008 filed by the APMC has gone into the merits of the case. Considerable reliance was placed upon the Division Bench Judgment in Letters Patent Appeal No. 139 of 2006 by the counsel for the respondent-Company, contending that the amendment Act has not brought any change to Section 28 of the Act and further submitted that the Revisional Authority has rightly held that the APMC has no legal right to levy market fee on the respondent-Company. The appellant-APMC in this appeal has submitted that the Division Bench of the High Court, instead of examining the correctness of the discretionary powers exercised by the learned single Judge in Special Civil Application No. 9705 of 2008 and passing the interim order with certain observations, has passed the orders on merits of the civil application without adverting and examining the grounds urged in the petition, which approach of the Division Bench is not correct and it should not have pronounced decision on the merits of the Special Civil Application while examining the correctness of the interim order passed by the learned single Judge. The APMC has also sought declaratory relief to declare Rule 48(2) as ultra vires to Section 28A of the amended provision of the Act and submitted that the Division Bench of the High Court failed to appreciate the same and also that Section 28 of the Act deals with levy of market fee which is a mandatory provision that does not give any exemption to respondent-Company and as such a Rule cannot override provisions of the Act. The Division Bench of the High Court has simply affirmed the order of the Revisional Authority by setting aside the assessment order passed by the APMC vide notices dated 5.03.2008 and 15.4.2008 without awaiting the decision to be rendered by the learned single Judge on the legality and validity of the Rule 48(2) in the backdrop of Section 28, of the amended provision.6. Afterhearing learned counsel for the parties, we have pronounced the judgment today in Civil Appeal No. 3130 of 2008 on similar demand notices demanding the market fee from the respondent-Company on the castor seeds bought in the market area for the purpose of manufacturing of oil. We hold that the demand for the market fee made by the APMC for castor seeds is justified as per the reasoning given in our judgment in the connected Civil Appeal No. 3130 of 2008, that the castor seeds were bought in the market area and not brought into the market area. It would suffice to say that the order dated 10.02.2009 of the Division Bench of the High Court in Letters Patent Appeal No. 1383 of 2008 setting aside the order dated 13.11.2008 of the learned single Judge in Special Civil Application No.9705 of 2008 and affirming the order dated 30.06.2008 of the Revisional Authority in Revision Application No.69 of 2008, without examining the correctness of Rule 48(2) of the Rules and applying the Division Bench Judgment rendered in Letters Patent Appeal No 139 of 2006 without considering the factual matrix and therefore, the same is liable to be set aside. Accordingly, we set aside the same and remand the matter to the High Court to place the matter before the roster of learned single Judge to examine the validity of Rule 48(2) of the Rules, as questioned with reference to Section 28A of the amended provision of Act No. 17 of 2007 and the impugned order of the Revisional Authority. The appellant may also approach the State Government to amend the Rules by deleting Rule 48(2) of the Rules. It is open for the appellant to either press the Special Civil Application to be decided on merits with regard to the validity of Rule 48(2) and also examine the impugned order of levying market fees on the goods purchased by the respondent-Company on the basis of facts and material evidence or to make revision application to the State Government seeking for the deletion of Rule 48(2) by amending the Rules with the above said | 1 | 10,447 | 7,640 | ### 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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(2) from page 79 to 86, the fact not denied by the Market Committee, which also establishes the case of the Company with sufficient declaration and a certificate that the abovementioned agricultural produce, namely, castor seeds, has been brought from outside the limits of the market area and brought within the limits of market area for industrial purpose, and for production of castor oil and other byproducts. Thus, the Company fully complied with the requirement of Rule 48 of the Rules and is entitled for exemption from payment of market fees. Therefore, exercise undertaken by the learned Single Judge to find out the place of sale, so as to bring the case of the Company under Rule 48, subrule (1) of the Rules, is of no help and the finding, on that basis, arrived at by the learned Single Judge, will have to be quashed and set aside in the backdrop of the above discussion and the fact situation.” 5. Thereafter the amended provisions of Sections 28A and 31D of the Act are referred to by the Division Bench along with Section 28(1) of the Act and Rule 48(2) of the Rules as well as sub-sections 2(a)and (b) of Section 28 of the amended provisions of the Act to come to the conclusion, that in view of the factual legal situation, the Revisional Authority had rightly interfered with the demand notices issued by the APMC and therefore held that Civil Appeal filed by the APMC lacks merit and dismissed the same and the interim relief granted was set aside and consequently Rule was also discharged. The correctness of the same is challenged here by urging various questions of law and grounds in support of the same. The same need not be adverted to in this judgment for the reason that the learned Division Bench of the Gujarat High Court while examining the directions in interim order dated 13.11.2008 given in Special Civil Application No. 9705 of 2008 filed by the APMC has gone into the merits of the case. Considerable reliance was placed upon the Division Bench Judgment in Letters Patent Appeal No. 139 of 2006 by the counsel for the respondent-Company, contending that the amendment Act has not brought any change to Section 28 of the Act and further submitted that the Revisional Authority has rightly held that the APMC has no legal right to levy market fee on the respondent-Company. The appellant-APMC in this appeal has submitted that the Division Bench of the High Court, instead of examining the correctness of the discretionary powers exercised by the learned single Judge in Special Civil Application No. 9705 of 2008 and passing the interim order with certain observations, has passed the orders on merits of the civil application without adverting and examining the grounds urged in the petition, which approach of the Division Bench is not correct and it should not have pronounced decision on the merits of the Special Civil Application while examining the correctness of the interim order passed by the learned single Judge. The APMC has also sought declaratory relief to declare Rule 48(2) as ultra vires to Section 28A of the amended provision of the Act and submitted that the Division Bench of the High Court failed to appreciate the same and also that Section 28 of the Act deals with levy of market fee which is a mandatory provision that does not give any exemption to respondent-Company and as such a Rule cannot override provisions of the Act. The Division Bench of the High Court has simply affirmed the order of the Revisional Authority by setting aside the assessment order passed by the APMC vide notices dated 5.03.2008 and 15.4.2008 without awaiting the decision to be rendered by the learned single Judge on the legality and validity of the Rule 48(2) in the backdrop of Section 28, of the amended provision.6. After hearing learned counsel for the parties, we have pronounced the judgment today in Civil Appeal No. 3130 of 2008 on similar demand notices demanding the market fee from the respondent-Company on the castor seeds bought in the market area for the purpose of manufacturing of oil. We hold that the demand for the market fee made by the APMC for castor seeds is justified as per the reasoning given in our judgment in the connected Civil Appeal No. 3130 of 2008, that the castor seeds were bought in the market area and not brought into the market area. It would suffice to say that the order dated 10.02.2009 of the Division Bench of the High Court in Letters Patent Appeal No. 1383 of 2008 setting aside the order dated 13.11.2008 of the learned single Judge in Special Civil Application No.9705 of 2008 and affirming the order dated 30.06.2008 of the Revisional Authority in Revision Application No.69 of 2008, without examining the correctness of Rule 48(2) of the Rules and applying the Division Bench Judgment rendered in Letters Patent Appeal No 139 of 2006 without considering the factual matrix and therefore, the same is liable to be set aside. Accordingly, we set aside the same and remand the matter to the High Court to place the matter before the roster of learned single Judge to examine the validity of Rule 48(2) of the Rules, as questioned with reference to Section 28A of the amended provision of Act No. 17 of 2007 and the impugned order of the Revisional Authority. The appellant may also approach the State Government to amend the Rules by deleting Rule 48(2) of the Rules. It is open for the appellant to either press the Special Civil Application to be decided on merits with regard to the validity of Rule 48(2) and also examine the impugned order of levying market fees on the goods purchased by the respondent-Company on the basis of facts and material evidence or to make revision application to the State Government seeking for the deletion of Rule 48(2) by amending the Rules with the above said observation.
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Rule 48, sub rule (2) from page 79 to 86, the fact not denied by the Market Committee, which also establishes the case of the Company with sufficient declaration and a certificate that the abovementioned agricultural produce, namely, castor seeds, has been brought from outside the limits of the market area and brought within the limits of market area for industrial purpose, and for production of castor oil and other byproducts. Thus, the Company fully complied with the requirement of Rule 48 of the Rules and is entitled for exemption from payment of market fees. Therefore, exercise undertaken by the learned Single Judge to find out the place of sale, so as to bring the case of the Company under Rule 48, subrule (1) of the Rules, is of no help and the finding, on that basis, arrived at by the learned Single Judge, will have to be quashed and set aside in the backdrop of the above discussion and the fact situation.Thereafter the amended provisions of Sections 28A and 31D of the Act are referred to by the Division Bench along with Section 28(1) of the Act and Rule 48(2) of the Rules as well as sub-sections 2(a)and (b) of Section 28 of the amended provisions of the Act to come to the conclusion, that in view of the factual legal situation, the Revisional Authority had rightly interfered with the demand notices issued by the APMC and therefore held that Civil Appeal filed by the APMC lacks merit and dismissed the same and the interim relief granted was set aside and consequently Rule was also discharged. The correctness of the same is challenged here by urging various questions of law and grounds in support of the same. The same need not be adverted to in this judgment for the reason that the learned Division Bench of the Gujarat High Court while examining the directions in interim order dated 13.11.2008 given in Special Civil Application No. 9705 of 2008 filed by the APMC has gone into the merits of the case. Considerable reliance was placed upon the Division Bench Judgment in Letters Patent Appeal No. 139 of 2006 by the counsel for the respondent-Company, contending that the amendment Act has not brought any change to Section 28 of the Act and further submitted that the Revisional Authority has rightly held that the APMC has no legal right to levy market fee on the respondent-Company. The appellant-APMC in this appeal has submitted that the Division Bench of the High Court, instead of examining the correctness of the discretionary powers exercised by the learned single Judge in Special Civil Application No. 9705 of 2008 and passing the interim order with certain observations, has passed the orders on merits of the civil application without adverting and examining the grounds urged in the petition, which approach of the Division Bench is not correct and it should not have pronounced decision on the merits of the Special Civil Application while examining the correctness of the interim order passed by the learned single Judge. The APMC has also sought declaratory relief to declare Rule 48(2) as ultra vires to Section 28A of the amended provision of the Act and submitted that the Division Bench of the High Court failed to appreciate the same and also that Section 28 of the Act deals with levy of market fee which is a mandatory provision that does not give any exemption to respondent-Company and as such a Rule cannot override provisions of the Act. The Division Bench of the High Court has simply affirmed the order of the Revisional Authority by setting aside the assessment order passed by the APMC vide notices dated 5.03.2008 and 15.4.2008 without awaiting the decision to be rendered by the learned single Judge on the legality and validity of the Rule 48(2) in the backdrop of Section 28, of the amended provision.6. Afterhearing learned counsel for the parties, we have pronounced the judgment today in Civil Appeal No. 3130 of 2008 on similar demand notices demanding the market fee from the respondent-Company on the castor seeds bought in the market area for the purpose of manufacturing of oil. We hold that the demand for the market fee made by the APMC for castor seeds is justified as per the reasoning given in our judgment in the connected Civil Appeal No. 3130 of 2008, that the castor seeds were bought in the market area and not brought into the market area. It would suffice to say that the order dated 10.02.2009 of the Division Bench of the High Court in Letters Patent Appeal No. 1383 of 2008 setting aside the order dated 13.11.2008 of the learned single Judge in Special Civil Application No.9705 of 2008 and affirming the order dated 30.06.2008 of the Revisional Authority in Revision Application No.69 of 2008, without examining the correctness of Rule 48(2) of the Rules and applying the Division Bench Judgment rendered in Letters Patent Appeal No 139 of 2006 without considering the factual matrix and therefore, the same is liable to be set aside. Accordingly, we set aside the same and remand the matter to the High Court to place the matter before the roster of learned single Judge to examine the validity of Rule 48(2) of the Rules, as questioned with reference to Section 28A of the amended provision of Act No. 17 of 2007 and the impugned order of the Revisional Authority. The appellant may also approach the State Government to amend the Rules by deleting Rule 48(2) of the Rules. It is open for the appellant to either press the Special Civil Application to be decided on merits with regard to the validity of Rule 48(2) and also examine the impugned order of levying market fees on the goods purchased by the respondent-Company on the basis of facts and material evidence or to make revision application to the State Government seeking for the deletion of Rule 48(2) by amending the Rules with the above said
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Thakur Singh Vs. Ram Baran Singh & Ors | said Mustajir or his heirs and representatives, except to get a sum of Rs. 12/- (rupees twelve) in kings coins, as annual reserve rent till this deed remain intact. Expenses over dispute regarding the milkiyat property and boundary limit and payment of Government revenue and road cess and Public works cess etc. are entirely the concern of me, the executant. The said Mustajir neither has nor shall have any connection and concern therewith". The terms of the other two ijara deeds were identical. The only difference was that in the case of the ijara bond in favour of Inder Singh the annual reserve rent (haq-ajri) was Rs. 6/12/- and in the case of Raj Kumar Mahto the annual reserve rent (haq-ajri) was Rs. 6/-." 9. Broadly stated, these terms indicate three features. First, the mortgagee shall have possession and occupation of the mortgaged property and appropriate the produce thereof in lieu of interest on the mortgage money and the mortgagor had no claim to any excess produce or mesne profits against the mortgage. Secondly, the mortgagee was to pay to the mortgagor the amounts mentioned in each ijara bond the annual reserve rent or haq-ajri. Thirdly, the mortgagor was liable for payment of the Government revenue or cess. 10. The High Court found that the mortgagees paid the revenue and cess out of haq-ajri. In Title Suit No. 54 of 1950 the High Court held that the total amount of revenue and cess came to Rs. 15-9-3. The haq-ajri in that suit was Rs. 12/-. It therefore followed that every year the mortgage paid Rs. 3-9-0 in excess of the amount of haq-ajri. The mortgagor was liable to the mortgagee for the excess payment. Similarly, in Title Suit No. 55 of 1950 the mortgagee paid revenue and cess amounting to Rs. 9-13-3. The haq-ajri under the ijara bond in that suit was Rs. 6-12-0. The result was that every year the mortgagee paid Rs. 3-1-3 in excess. The mortgagor was liable to the mortgagee to pay that excess amount. Again, in Title Suit No. 56 of 1950 the High Court found that the mortgagee paid every year revenue and cess amounting to Rupees 7-12-0. The haq-ajri there was Rupees 6/-. The mortgagee therefore paid annually Rs. 1-12-0 in excess of haq-ajri. The mortgagor was liable to pay the excess amount to the mortgagee. 11. In the present appeals, the mortgagor had undertaken the liability to pay the revenue and cess. The mortgagor failed to pay the same. The mortgagees paid the revenue and cess on behalf of the mortgagor. The mortgagees were entitled to the excess payment of the amount of revenue and cess, because the mortgagor was liable to pay the same. 12. The mortgage bonds in the present case provided that as long as the mortgagee was in possession of the property the receipts from the mortgaged property shall be taken in lieu of interest on the principal money. That amount to a stipulation that the receipts from the mortgaged property will be taken in lieu of the interest on the principal money. That is S. 77 of the Transfer of Property Act. The provisions as to accounts contained in Section 76 (g) of the Transfer of Property Act are excluded in cases where Section 77 of the Transfer of Property Act applies. Section 77 of the Transfer of Property Act applies to the present appeals. Further, the mortgagees had to pay to the mortgagor a fixed amount, namely, the haq-ajri. There was nothing to account on the part of the mortgagees in relation to payment of haq-ajri. On the contrary, the mortgagor was liable for the payment of Government revenue and cess. 13. Under Section 76 (c) of the Transfer of Property Act the mortgagee in possession, in the absence of a contract to the contrary, must pay the Government revenue and other charges of a public nature and arrears of rent in default of payment of which the property may be summarily sold. In the present case, the mortgagor was liable for payment of both revenue and cess. Therefore, the mortgagees were entitled to add to the mortgage money the amount for which the mortgagor under the terms of the mortgage was liable. Section 4 of the Cess Act, 1880 defines annual value of land to mean the total rent which is payable or, if no rent is actually payable, would, on a reasonable assessment, be payable, during the year by all the cultivating raiyats of such land in the actual use and occupation thereof. Section 5 of the Cess Act, 1880 states that all immovable property to which the Act applies shall be liable to the payment of a local cess. Section 6 of the Cess Act, 1880 provides as to how the cess is to be assessed. Section 38 of the Cess Act, 1880 provides as to how rate of local cess on the annual value of land is to be fixed. Section 98 of the Cess Act, 1880 enacts that the amount which may become due under the provisions of the Cess Act in respect of arrears of cess shall be deemed to be a public demand. Section 99 provides that the Collector may recover dues out of rent and the Collectors claim to have priority. These provisions show that cess is linked with rent. Cess is payable on annual value of land. Annual value is linked with rent. Cess is deemed to be a public demand. The mortgagees were entitled to add the amounts paid by them towards revenue and cess on the mortgage money. 14. The High Court was correct in refusing the mesne profits. 15. On behalf of the respondents it was mentioned in their statement of case that the appellant after having deposited the further amount after the decree of the High Court had taken possession of the land. This statement was not challenged and denied by the appellant. This indicates that the appeals have now become academic. 16. | 0[ds]12. The mortgage bonds in the present case provided that as long as the mortgagee was in possession of the property the receipts from the mortgaged property shall be taken in lieu of interest on the principal money. That amount to a stipulation that the receipts from the mortgaged property will be taken in lieu of the interest on the principal money. That is S. 77 of the Transfer of Property Act. The provisions as to accounts contained in Section 76 (g) of the Transfer of Property Act are excluded in cases where Section 77 of the Transfer of Property Act applies. Section 77 of the Transfer of Property Act applies to the present appeals. Further, the mortgagees had to pay to the mortgagor a fixed amount, namely, the haq-ajri. There was nothing to account on the part of the mortgagees in relation to payment of haq-ajri. On the contrary, the mortgagor was liable for the payment of Government revenue and cess13. Under Section 76 (c) of the Transfer of Property Act the mortgagee in possession, in the absence of a contract to the contrary, must pay the Government revenue and other charges of a public nature and arrears of rent in default of payment of which the property may be summarily sold. In the present case, the mortgagor was liable for payment of both revenue and cess. Therefore, the mortgagees were entitled to add to the mortgage money the amount for which the mortgagor under the terms of the mortgage was liableSection 4 ofthe Cess Act, 1880 defines annual value of land to mean the total rent which is payable or, if no rent is actually payable, would, on a reasonable assessment, be payable, during the year by all the cultivating raiyats of such land in the actual use and occupation thereof. Section 5 ofthe Cess Act, 1880 states that all immovable property to which the Act applies shall be liable to the payment of a local cess. Section 6 ofthe Cess Act, 1880 provides as to how the cess is to be assessed. Section 38 ofthe Cess Act, 1880 provides as to how rate of local cess on the annual value of land is to be fixed. Section 98 ofthe Cess Act, 1880 enacts that the amount which may become due under the provisions of the Cess Act in respect of arrears of cess shall be deemed to be a public demand. Section 99 provides that the Collector may recover dues out of rent and the Collectors claim to have priority. These provisions show that cess is linked with rent. Cess is payable on annual value of land. Annual value is linked with rent. Cess is deemed to be a public demand. The mortgagees were entitled to add the amounts paid by them towards revenue and cess on the mortgage money14. The High Court was correct in refusing the mesne profits. | 0 | 2,032 | 532 | ### Instruction:
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said Mustajir or his heirs and representatives, except to get a sum of Rs. 12/- (rupees twelve) in kings coins, as annual reserve rent till this deed remain intact. Expenses over dispute regarding the milkiyat property and boundary limit and payment of Government revenue and road cess and Public works cess etc. are entirely the concern of me, the executant. The said Mustajir neither has nor shall have any connection and concern therewith". The terms of the other two ijara deeds were identical. The only difference was that in the case of the ijara bond in favour of Inder Singh the annual reserve rent (haq-ajri) was Rs. 6/12/- and in the case of Raj Kumar Mahto the annual reserve rent (haq-ajri) was Rs. 6/-." 9. Broadly stated, these terms indicate three features. First, the mortgagee shall have possession and occupation of the mortgaged property and appropriate the produce thereof in lieu of interest on the mortgage money and the mortgagor had no claim to any excess produce or mesne profits against the mortgage. Secondly, the mortgagee was to pay to the mortgagor the amounts mentioned in each ijara bond the annual reserve rent or haq-ajri. Thirdly, the mortgagor was liable for payment of the Government revenue or cess. 10. The High Court found that the mortgagees paid the revenue and cess out of haq-ajri. In Title Suit No. 54 of 1950 the High Court held that the total amount of revenue and cess came to Rs. 15-9-3. The haq-ajri in that suit was Rs. 12/-. It therefore followed that every year the mortgage paid Rs. 3-9-0 in excess of the amount of haq-ajri. The mortgagor was liable to the mortgagee for the excess payment. Similarly, in Title Suit No. 55 of 1950 the mortgagee paid revenue and cess amounting to Rs. 9-13-3. The haq-ajri under the ijara bond in that suit was Rs. 6-12-0. The result was that every year the mortgagee paid Rs. 3-1-3 in excess. The mortgagor was liable to the mortgagee to pay that excess amount. Again, in Title Suit No. 56 of 1950 the High Court found that the mortgagee paid every year revenue and cess amounting to Rupees 7-12-0. The haq-ajri there was Rupees 6/-. The mortgagee therefore paid annually Rs. 1-12-0 in excess of haq-ajri. The mortgagor was liable to pay the excess amount to the mortgagee. 11. In the present appeals, the mortgagor had undertaken the liability to pay the revenue and cess. The mortgagor failed to pay the same. The mortgagees paid the revenue and cess on behalf of the mortgagor. The mortgagees were entitled to the excess payment of the amount of revenue and cess, because the mortgagor was liable to pay the same. 12. The mortgage bonds in the present case provided that as long as the mortgagee was in possession of the property the receipts from the mortgaged property shall be taken in lieu of interest on the principal money. That amount to a stipulation that the receipts from the mortgaged property will be taken in lieu of the interest on the principal money. That is S. 77 of the Transfer of Property Act. The provisions as to accounts contained in Section 76 (g) of the Transfer of Property Act are excluded in cases where Section 77 of the Transfer of Property Act applies. Section 77 of the Transfer of Property Act applies to the present appeals. Further, the mortgagees had to pay to the mortgagor a fixed amount, namely, the haq-ajri. There was nothing to account on the part of the mortgagees in relation to payment of haq-ajri. On the contrary, the mortgagor was liable for the payment of Government revenue and cess. 13. Under Section 76 (c) of the Transfer of Property Act the mortgagee in possession, in the absence of a contract to the contrary, must pay the Government revenue and other charges of a public nature and arrears of rent in default of payment of which the property may be summarily sold. In the present case, the mortgagor was liable for payment of both revenue and cess. Therefore, the mortgagees were entitled to add to the mortgage money the amount for which the mortgagor under the terms of the mortgage was liable. Section 4 of the Cess Act, 1880 defines annual value of land to mean the total rent which is payable or, if no rent is actually payable, would, on a reasonable assessment, be payable, during the year by all the cultivating raiyats of such land in the actual use and occupation thereof. Section 5 of the Cess Act, 1880 states that all immovable property to which the Act applies shall be liable to the payment of a local cess. Section 6 of the Cess Act, 1880 provides as to how the cess is to be assessed. Section 38 of the Cess Act, 1880 provides as to how rate of local cess on the annual value of land is to be fixed. Section 98 of the Cess Act, 1880 enacts that the amount which may become due under the provisions of the Cess Act in respect of arrears of cess shall be deemed to be a public demand. Section 99 provides that the Collector may recover dues out of rent and the Collectors claim to have priority. These provisions show that cess is linked with rent. Cess is payable on annual value of land. Annual value is linked with rent. Cess is deemed to be a public demand. The mortgagees were entitled to add the amounts paid by them towards revenue and cess on the mortgage money. 14. The High Court was correct in refusing the mesne profits. 15. On behalf of the respondents it was mentioned in their statement of case that the appellant after having deposited the further amount after the decree of the High Court had taken possession of the land. This statement was not challenged and denied by the appellant. This indicates that the appeals have now become academic. 16.
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### Explanation:
12. The mortgage bonds in the present case provided that as long as the mortgagee was in possession of the property the receipts from the mortgaged property shall be taken in lieu of interest on the principal money. That amount to a stipulation that the receipts from the mortgaged property will be taken in lieu of the interest on the principal money. That is S. 77 of the Transfer of Property Act. The provisions as to accounts contained in Section 76 (g) of the Transfer of Property Act are excluded in cases where Section 77 of the Transfer of Property Act applies. Section 77 of the Transfer of Property Act applies to the present appeals. Further, the mortgagees had to pay to the mortgagor a fixed amount, namely, the haq-ajri. There was nothing to account on the part of the mortgagees in relation to payment of haq-ajri. On the contrary, the mortgagor was liable for the payment of Government revenue and cess13. Under Section 76 (c) of the Transfer of Property Act the mortgagee in possession, in the absence of a contract to the contrary, must pay the Government revenue and other charges of a public nature and arrears of rent in default of payment of which the property may be summarily sold. In the present case, the mortgagor was liable for payment of both revenue and cess. Therefore, the mortgagees were entitled to add to the mortgage money the amount for which the mortgagor under the terms of the mortgage was liableSection 4 ofthe Cess Act, 1880 defines annual value of land to mean the total rent which is payable or, if no rent is actually payable, would, on a reasonable assessment, be payable, during the year by all the cultivating raiyats of such land in the actual use and occupation thereof. Section 5 ofthe Cess Act, 1880 states that all immovable property to which the Act applies shall be liable to the payment of a local cess. Section 6 ofthe Cess Act, 1880 provides as to how the cess is to be assessed. Section 38 ofthe Cess Act, 1880 provides as to how rate of local cess on the annual value of land is to be fixed. Section 98 ofthe Cess Act, 1880 enacts that the amount which may become due under the provisions of the Cess Act in respect of arrears of cess shall be deemed to be a public demand. Section 99 provides that the Collector may recover dues out of rent and the Collectors claim to have priority. These provisions show that cess is linked with rent. Cess is payable on annual value of land. Annual value is linked with rent. Cess is deemed to be a public demand. The mortgagees were entitled to add the amounts paid by them towards revenue and cess on the mortgage money14. The High Court was correct in refusing the mesne profits.
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Jaila Singh & Anr Vs. State Of Rajasthan And Ors | Rajasthan Canal Rules had been framed under the Rajasthan Colonisation Act. 1954 but they treated the unit of family differently and cannot therefore be justified. By the same reasoning no distinction can be made between pre-1955 and post-1955 tenants by rules made under the same Act.17. One of the arguments attempted before us, though it was not pleaded before the Rajasthan High Court was that in the case of the post-1955 tenants a smaller area had to be allotted because of the pressure for land. We have already pointed out that the difference in the period of occupation between the pre-1955 and post-1955 tenants could not be of such an extent as to justify allotment of , larger extent, of land to the pre-1955 tenants than to the post-1955 tenants nor for the discrimination even among the pre-1955 tenants between those holding more than 25 bighas and those holding less than 25 bighas. If the Rajasthan Government wanted to act fairly by all classes of residents of Rajasthan they could very well have omitted portions in the 1967 Rules found objectionable by the Rajasthan High Court and therefore struck down and there would have been nothing more to say. The striking down of Rules 16 and 19 of the 1967 Rules did not necessitate the promulgation of two wholly new sets of rules. In that case only 15 bighas of land would have been available to each allottee and there would have been no discrimination between one class of persons and another. There would also have been greater extent of land available for allotment to a larger number of persons at the rate of 15 bighas each. One of the justifications pleaded on behalf of the State of Rajasthan for the definition of the landless tenants in the post-1955 Rules as persons holding less than 15 bighas of land was that 15 bighas was a viable unit. In that case it is all the more reason why all allottees whether pre-1955 or post1955 should get 15 bighas.We are unable to see any justification for treating the Pre-1955 and post-1955 tenants differently. What prompted the Rajasthan State to do so in 1971 when they did not do so in 1967 and the decision of the Raiasthan High Court in regard to the 1967 Rules did not compel them to do so is beyond our comprehension. We are not able to accept the contention that they belonged to two different classes. By that standard any arbitrary difference could be fixed and it could be said that persons who got temporary leases before that date belonged to one, class and the persons who had been allotted land after that date formed another class. We have already shown that the Rajasthan Tenancy Act has no relevance at all to the decision of this question and therefore 15-10-1955, the date on which it came into force, has no relevance to the classification attempted by pre-1955 and post-1955 tenants. The classification must have a nexus with the object sought to be achieved. We can see no such nexus in this case. We thus find that the definition of the landless tenants as well as the rules for allotment in the post 1955 Rules as compared to the pre1955 conditions are discriminatory and unjustifiable.18. As regards the discrimination in the matter of payment of price between the pre-1955 and post1955 tenants, it was urged on behalf of the State of Rajasthan that this was not urged in the writ petitions of the two appellants and so cannot be gone into by this Court. The question of price has been raised in the two writ petitions but it was on a different aspect and not on the question that the pre-1955 tenants did not have to pay any price while post-1955 tenants had to do so. But it has been argued before the learned Single Judge, and he has dealt with it apparently without any objection being taken to it on the part of the State of Rajasthan. This question of price is not mentioned as one of the matters which were raised before the Division Bench which heard the appeal. We find it difficult to conceive of the appellants having given up that plea before the Appellate Bench having argued it before the learned. Single Judge. It is urged on behalf of the State of Rajasthan that there may be reasons why pre-1955 tenants are treated differently in the matter of payment of price. If there were any, they were not put forward before the learned Single Judge. But as materials regarding it are not available before us, we propose to say nothing about it. But we may point out that, as the rules stand there seems to be some discrimination in the matter of price between pre-1955 and post-1955 tenants, in that pre-1955 tenants, who hold land exceeding 25 bighas, have to pay nothing for land up to 25 bighas, while post-1955 tenants, who hold land less than 15 bighas, have to pay price for land which may be allotted to them so as to make up 25 bighas. We are mentioning this only so that the State may look into the matter of price and set it right to avoid any discrimination. There seems to be no difficulty at all in all this because none of the tenants, whether they are pre-1955 or post-1955 tenants, have any vested rights. It is the duty of the State to treat fairly all classes of tenants in the Rajasthan Canal Area whether pre-1955 or post1955 tenants.19. No arguments were advanced regarding the validity of the Act and we think rightly so. The arguments were confined to Condition 3 and proviso to Condition 9 of pre-1955 Conditions and Rules 2 (1) (xiii) and 3 (2) of the post-1955 Rules. In effect appellants had no objection to paying for extra land to be allotted to them. They object only to the discrimination against them as compared to the pre-1955 tenants. | 1[ds]Thus a person holding lands in excess of 25 bighas was at a distinct advantage in that he could keep the land in excess of 25 bighas, and upto 50 bighas by paying the value only for the excess, compared to the man who had less than 25 bighas who could be given land upto 25 bighas. The discrimination between the two classes is obvious and no justification has been put forward nor can be put forward for thiscontentions are so substantial and the discrimination so striking and the justification attempted so feeble that we have no hesitation in accepting them. We have already referred to some of them.14. We are unable to see the nexus between the pre-1955 Conditions and post-1955 Rules and the Rajasthan Tenancy Act which came into force on 15-10-1955.In these cases we are concerned with the validity of the rules relating to the allotment of Government land which had been given on temporary leases to various persons whether before 1955 or after 1955. Both sets of leases had been cancelled by the relevant pre-1955 Condition and post-1955 Rule and there is no dispute that the Pre-1955 leases cannot be cancelled while post l955 leases could be cancelled. The Rajasthan Tenancy Act is not concerned with that question. Proviso to Section 15 of that Act specifically provides that no Khatedari rights shall accrue under that section to any tenant, to whom land is or has been let out temporarily in Gang Canal Bhakra, Chambal or Jawai Project area, or any other area notified in that behalf by the State Government. Admittedly the Rajasthan Canal area has been included within the scope of this proviso by a notification. To make matters more clear Section 15A also provides that the land in the Rajasthan Canal area leased out on any terms whatsoever shall be deemed to have been let out temporarily within the meaning of the proviso earlier mentioned and no Khatedari rights shall accrue or shall be deemed ever to have accrued in any such land leased out as aforesaid. This provision thus applies to both pre-1955 as well as post-1955 leases. Both these leases stand on the same footing and therefore do not form different classes.15. The reference to Ss. 15 and 15A of the Rajasthan Tenancy Act in deciding the questions that arise in these cases is therefore wholly irrelevant. Nor are we satisfied that the length of occupation of the lands provides any proper criterion for the distinction between pre-1955 and post-1955 tenants. There is nothing to show how long before 15th October 1955 pre-1955 tenants were given temporary leases and in the absence of such material, it is impossible to see how any differentiation can be made between pre-1955 and Post-1955 tenants in the matter of permanent allotment of land. Even in 1967 when the 1967 Rules were made no distinction was sought to be made between pre-1955 and post-1955 tenants. By that time many of post - l955 tenants would have been in possession for about 12 years and in 1971 they would have been in possession for about 16 years. It is difficult to appreciate how it should make any difference from the point of view of allotment of land, whether a tenant has been in occupation for 16 years or 18 or 20 years and why differentiation should be made with reference to the date when the Rajasthan Tenancy Act came into force. The 1967 Rules no doubt provide for cancellation of all post-1955 temporary cultivation leases but in actual effect it made no difference. Under these Rules persons eligible for allotment were landless tenants. Landless tenant was defined as a bona fide agriculturist who is a resident of Rajasthan since before 1st April 1955 and who cultivates or can reasonably be expected to cultivate land personally but who does not hold any land in his own name or in the name of any member of his joint family and who is not a sub-tenant of any land, owner or land holder holding tenure khatas under proprietary, mauroosee or khatedari rights and is not liable to ejectment under the provisions of the Rajasthan Tenancy Act, 1955 or under any other law for the time being in force in the area in which the land is situated or who holds only a fragment of land measuring 15 bighas. No distinction was made between pre-1955 and Post-1955 tenants in the matter of allotment. Provided an agriculturist had less than 15 bighas he was entitled to allotment of land. The allotment was also to an extent sufficient to make up 25 bighas of command land. Here again no distinction was made between post-1955 and pre-l955 tenants, Nor was there any difference in the sale price to be paid by the different classes ofhave already pointed out that the difference in the period of occupation between the pre-1955 and post-1955 tenants could not be of such an extent as to justify allotment of , larger extent, of land to the pre-1955 tenants than to the post-1955 tenants nor for the discrimination even among the pre-1955 tenants between those holding more than 25 bighas and those holding less than 25 bighas. If the Rajasthan Government wanted to act fairly by all classes of residents of Rajasthan they could very well have omitted portions in the 1967 Rules found objectionable by the Rajasthan High Court and therefore struck down and there would have been nothing more to say. The striking down of Rules 16 and 19 of the 1967 Rules did not necessitate the promulgation of two wholly new sets of rules. In that case only 15 bighas of land would have been available to each allottee and there would have been no discrimination between one class of persons and another. There would also have been greater extent of land available for allotment to a larger number of persons at the rate of 15 bighasare unable to see any justification for treating the Pre-1955 and post-1955 tenants differently. What prompted the Rajasthan State to do so in 1971 when they did not do so in 1967 and the decision of the Raiasthan High Court in regard to the 1967 Rules did not compel them to do so is beyond our comprehension. We are not able to accept the contention that they belonged to two different classes. By that standard any arbitrary difference could be fixed and it could be said that persons who got temporary leases before that date belonged to one, class and the persons who had been allotted land after that date formed another class. We have already shown that the Rajasthan Tenancy Act has no relevance at all to the decision of this question and therefore 15-10-1955, the date on which it came into force, has no relevance to the classification attempted by pre-1955 and post-1955 tenants. The classification must have a nexus with the object sought to be achieved. We can see no such nexus in this case. We thus find that the definition of the landless tenants as well as the rules for allotment in the post 1955 Rules as compared to the pre1955 conditions are discriminatory andquestion of price has been raised in the two writ petitions but it was on a different aspect and not on the question that the pre-1955 tenants did not have to pay any price while post-1955 tenants had to do so. But it has been argued before the learned Single Judge, and he has dealt with it apparently without any objection being taken to it on the part of the State of Rajasthan. This question of price is not mentioned as one of the matters which were raised before the Division Bench which heard the appeal. We find it difficult to conceive of the appellants having given up that plea before the Appellate Bench having argued it before the learned. SingleIf there were any, they were not put forward before the learned Single Judge. But as materials regarding it are not available before us, we propose to say nothing about it. But we may point out that, as the rules stand there seems to be some discrimination in the matter of price between pre-1955 and post-1955 tenants, in that pre-1955 tenants, who hold land exceeding 25 bighas, have to pay nothing for land up to 25 bighas, while post-1955 tenants, who hold land less than 15 bighas, have to pay price for land which may be allotted to them so as to make up 25 bighas. We are mentioning this only so that the State may look into the matter of price and set it right to avoid any discrimination. There seems to be no difficulty at all in all this because none of the tenants, whether they are pre-1955 or post-1955 tenants, have any vested rights. It is the duty of the State to treat fairly all classes of tenants in the Rajasthan Canal Area whether pre-1955 or post1955 tenants.19. No arguments were advanced regarding the validity of the Act and we think rightly so. The arguments were confined to Condition 3 and proviso to Condition 9 of pre-1955 Conditions and Rules 2 (1) (xiii) and 3 (2) of the post-1955 Rules. In effect appellants had no objection to paying for extra land to be allotted to them. They object only to the discrimination against them as compared to the pre-1955 tenants. | 1 | 4,556 | 1,656 | ### Instruction:
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Rajasthan Canal Rules had been framed under the Rajasthan Colonisation Act. 1954 but they treated the unit of family differently and cannot therefore be justified. By the same reasoning no distinction can be made between pre-1955 and post-1955 tenants by rules made under the same Act.17. One of the arguments attempted before us, though it was not pleaded before the Rajasthan High Court was that in the case of the post-1955 tenants a smaller area had to be allotted because of the pressure for land. We have already pointed out that the difference in the period of occupation between the pre-1955 and post-1955 tenants could not be of such an extent as to justify allotment of , larger extent, of land to the pre-1955 tenants than to the post-1955 tenants nor for the discrimination even among the pre-1955 tenants between those holding more than 25 bighas and those holding less than 25 bighas. If the Rajasthan Government wanted to act fairly by all classes of residents of Rajasthan they could very well have omitted portions in the 1967 Rules found objectionable by the Rajasthan High Court and therefore struck down and there would have been nothing more to say. The striking down of Rules 16 and 19 of the 1967 Rules did not necessitate the promulgation of two wholly new sets of rules. In that case only 15 bighas of land would have been available to each allottee and there would have been no discrimination between one class of persons and another. There would also have been greater extent of land available for allotment to a larger number of persons at the rate of 15 bighas each. One of the justifications pleaded on behalf of the State of Rajasthan for the definition of the landless tenants in the post-1955 Rules as persons holding less than 15 bighas of land was that 15 bighas was a viable unit. In that case it is all the more reason why all allottees whether pre-1955 or post1955 should get 15 bighas.We are unable to see any justification for treating the Pre-1955 and post-1955 tenants differently. What prompted the Rajasthan State to do so in 1971 when they did not do so in 1967 and the decision of the Raiasthan High Court in regard to the 1967 Rules did not compel them to do so is beyond our comprehension. We are not able to accept the contention that they belonged to two different classes. By that standard any arbitrary difference could be fixed and it could be said that persons who got temporary leases before that date belonged to one, class and the persons who had been allotted land after that date formed another class. We have already shown that the Rajasthan Tenancy Act has no relevance at all to the decision of this question and therefore 15-10-1955, the date on which it came into force, has no relevance to the classification attempted by pre-1955 and post-1955 tenants. The classification must have a nexus with the object sought to be achieved. We can see no such nexus in this case. We thus find that the definition of the landless tenants as well as the rules for allotment in the post 1955 Rules as compared to the pre1955 conditions are discriminatory and unjustifiable.18. As regards the discrimination in the matter of payment of price between the pre-1955 and post1955 tenants, it was urged on behalf of the State of Rajasthan that this was not urged in the writ petitions of the two appellants and so cannot be gone into by this Court. The question of price has been raised in the two writ petitions but it was on a different aspect and not on the question that the pre-1955 tenants did not have to pay any price while post-1955 tenants had to do so. But it has been argued before the learned Single Judge, and he has dealt with it apparently without any objection being taken to it on the part of the State of Rajasthan. This question of price is not mentioned as one of the matters which were raised before the Division Bench which heard the appeal. We find it difficult to conceive of the appellants having given up that plea before the Appellate Bench having argued it before the learned. Single Judge. It is urged on behalf of the State of Rajasthan that there may be reasons why pre-1955 tenants are treated differently in the matter of payment of price. If there were any, they were not put forward before the learned Single Judge. But as materials regarding it are not available before us, we propose to say nothing about it. But we may point out that, as the rules stand there seems to be some discrimination in the matter of price between pre-1955 and post-1955 tenants, in that pre-1955 tenants, who hold land exceeding 25 bighas, have to pay nothing for land up to 25 bighas, while post-1955 tenants, who hold land less than 15 bighas, have to pay price for land which may be allotted to them so as to make up 25 bighas. We are mentioning this only so that the State may look into the matter of price and set it right to avoid any discrimination. There seems to be no difficulty at all in all this because none of the tenants, whether they are pre-1955 or post-1955 tenants, have any vested rights. It is the duty of the State to treat fairly all classes of tenants in the Rajasthan Canal Area whether pre-1955 or post1955 tenants.19. No arguments were advanced regarding the validity of the Act and we think rightly so. The arguments were confined to Condition 3 and proviso to Condition 9 of pre-1955 Conditions and Rules 2 (1) (xiii) and 3 (2) of the post-1955 Rules. In effect appellants had no objection to paying for extra land to be allotted to them. They object only to the discrimination against them as compared to the pre-1955 tenants.
### Response:
1
### Explanation:
Act came into force. The 1967 Rules no doubt provide for cancellation of all post-1955 temporary cultivation leases but in actual effect it made no difference. Under these Rules persons eligible for allotment were landless tenants. Landless tenant was defined as a bona fide agriculturist who is a resident of Rajasthan since before 1st April 1955 and who cultivates or can reasonably be expected to cultivate land personally but who does not hold any land in his own name or in the name of any member of his joint family and who is not a sub-tenant of any land, owner or land holder holding tenure khatas under proprietary, mauroosee or khatedari rights and is not liable to ejectment under the provisions of the Rajasthan Tenancy Act, 1955 or under any other law for the time being in force in the area in which the land is situated or who holds only a fragment of land measuring 15 bighas. No distinction was made between pre-1955 and Post-1955 tenants in the matter of allotment. Provided an agriculturist had less than 15 bighas he was entitled to allotment of land. The allotment was also to an extent sufficient to make up 25 bighas of command land. Here again no distinction was made between post-1955 and pre-l955 tenants, Nor was there any difference in the sale price to be paid by the different classes ofhave already pointed out that the difference in the period of occupation between the pre-1955 and post-1955 tenants could not be of such an extent as to justify allotment of , larger extent, of land to the pre-1955 tenants than to the post-1955 tenants nor for the discrimination even among the pre-1955 tenants between those holding more than 25 bighas and those holding less than 25 bighas. If the Rajasthan Government wanted to act fairly by all classes of residents of Rajasthan they could very well have omitted portions in the 1967 Rules found objectionable by the Rajasthan High Court and therefore struck down and there would have been nothing more to say. The striking down of Rules 16 and 19 of the 1967 Rules did not necessitate the promulgation of two wholly new sets of rules. In that case only 15 bighas of land would have been available to each allottee and there would have been no discrimination between one class of persons and another. There would also have been greater extent of land available for allotment to a larger number of persons at the rate of 15 bighasare unable to see any justification for treating the Pre-1955 and post-1955 tenants differently. What prompted the Rajasthan State to do so in 1971 when they did not do so in 1967 and the decision of the Raiasthan High Court in regard to the 1967 Rules did not compel them to do so is beyond our comprehension. We are not able to accept the contention that they belonged to two different classes. By that standard any arbitrary difference could be fixed and it could be said that persons who got temporary leases before that date belonged to one, class and the persons who had been allotted land after that date formed another class. We have already shown that the Rajasthan Tenancy Act has no relevance at all to the decision of this question and therefore 15-10-1955, the date on which it came into force, has no relevance to the classification attempted by pre-1955 and post-1955 tenants. The classification must have a nexus with the object sought to be achieved. We can see no such nexus in this case. We thus find that the definition of the landless tenants as well as the rules for allotment in the post 1955 Rules as compared to the pre1955 conditions are discriminatory andquestion of price has been raised in the two writ petitions but it was on a different aspect and not on the question that the pre-1955 tenants did not have to pay any price while post-1955 tenants had to do so. But it has been argued before the learned Single Judge, and he has dealt with it apparently without any objection being taken to it on the part of the State of Rajasthan. This question of price is not mentioned as one of the matters which were raised before the Division Bench which heard the appeal. We find it difficult to conceive of the appellants having given up that plea before the Appellate Bench having argued it before the learned. SingleIf there were any, they were not put forward before the learned Single Judge. But as materials regarding it are not available before us, we propose to say nothing about it. But we may point out that, as the rules stand there seems to be some discrimination in the matter of price between pre-1955 and post-1955 tenants, in that pre-1955 tenants, who hold land exceeding 25 bighas, have to pay nothing for land up to 25 bighas, while post-1955 tenants, who hold land less than 15 bighas, have to pay price for land which may be allotted to them so as to make up 25 bighas. We are mentioning this only so that the State may look into the matter of price and set it right to avoid any discrimination. There seems to be no difficulty at all in all this because none of the tenants, whether they are pre-1955 or post-1955 tenants, have any vested rights. It is the duty of the State to treat fairly all classes of tenants in the Rajasthan Canal Area whether pre-1955 or post1955 tenants.19. No arguments were advanced regarding the validity of the Act and we think rightly so. The arguments were confined to Condition 3 and proviso to Condition 9 of pre-1955 Conditions and Rules 2 (1) (xiii) and 3 (2) of the post-1955 Rules. In effect appellants had no objection to paying for extra land to be allotted to them. They object only to the discrimination against them as compared to the pre-1955 tenants.
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UNION OF INDIA Vs. K. RAJASHEKHARA REDDY AND ANOTHER | of this Court, the re-medical examination of the respondent-applicant has been conducted by the medical Board of Dr. Baba Saheb Ambedkar Hospital, Delhi on 12th May, 2022 and the medical report along with the enclosure dated 12th May, 2022 has been furnished to this Court where he has been found to be medically fit for all services. 17. The provision manifests that in case of a candidate who is declared temporarily unfit, the re-medical fitness certificate in terms of the provision has to be furnished within six months from the date on which the candidate was declared to be temporarily unfit. 18. In this regard, it is relevant to refer Rule 7(a)(vii) of Appendix-III of the CSE Rules 2014, which states as under:- In case of candidate who is to be declared Temporary Unfit, the period specified for re-examination should not ordinarily exceed six months at the maximum. On re-examination after the specified period these candidates should not be declared temporarily unfit for a further period but a final decision in regard to their fitness for appointment or otherwise should be given. 19. Rule 7(a)(vii) of Appendix-III of the CSE Rules 2014 clearly indicates that such of the candidates who are declared temporarily unfit, the period specified for re-medical examination is ordinarily six months at the maximum from the date of uploading of the medical examination report on the website of the Department. No communication by the Department regarding findings of the Department is communicated individually and uploading takes place only by the Medical Board. 20. Indisputedly, in the present case, the medical examination report was published on 17th June, 2015 indicating the respondent-applicant to be temporarily unfit and this is an admitted fact that the respondent-applicant approached for re-medical examination for the first time on 10th March, 2016, i.e., after six months of the medical examination report uploaded on 17th June 2015. The details regarding the number of such candidates for CSE-2014 to CSE-2020 who are declared medically unfit has also been provided to this Court. It may be noticed that in CSE-2014, there were 10 candidates including the respondent-applicant, declared temporarily unfit and in overall table for CSE-2014 to CSE-2020 indicates that there are 25 candidates who are declared temporarily unfit failed to submit an application within a stipulated time of six months after being declared as temporarily unfit and have not been allocated to any services in terms of the scheme of Rules of which a reference is made. The details regarding number of such candidates for CSE-2014 to CSE-2020 are as under:- Sl. No. CSE Year Number of candidates who were not allocated to any Service as they failed to submit medical fitness against temporarily unfit status within the prescribed limit 1. CSE-2014 10 2. CSE-2015 01 3. CSE-2016 07 4. CSE-2017 00 5. CSE-2018 01 6. CSE-2019 02 7. CSE-2020 04 21. We are also of the view that the period of six months which has been stipulated under Rule 7(a)(vii) of Appendix III of CSE Rules, 2014 of which reference has been made, the word ordinarily has to be conjointly read with the word maximum during which the candidate has to approach for re-medical examination from the date of uploading of the medical examination report on the website of the Department which indicates an outer limit of six months during which it is open to the candidate to approach for re-medical examination after being declared temporarily unfit from the date of the uploading of the medical examination report on the website of the Department and the fate of medical fitness is not dependent upon the result of the selection process held by the Commission. 22. At the same time, there may be a situation as being projected by the appellant to this Court that in special cases where a pregnant lady may not be in a position and is unable to complete her medical examination within a period of six months, in the peculiar circumstances, the word ordinarily may be considered for relaxation to a limited extent but the kind of excuse which has been projected by the respondent-applicant that though he was found to be temporarily unfit but the consolidated reserve list was published on 19th January, 2016 where his name was placed at Sl. No. 16 and allotment to Group A services was published on 9th March, 2016, he immediately filed an application on 10th March, 2016, without loss of time, which was within the prescribed period of six months from the date of publication of the reserve list, in our considered view, is neither a valid justification nor is in conformity with the scheme of Rules of which a reference has been made. 23. In our considered view, the word ordinarily in isolation as interpreted by the High Court without taking recourse to the word maximum as referred, is not sustainable in law. 24. It is true that the case of the respondent-applicant on legal foundation is not sustainable but we are constrained to observe that it was the fifth and last attempt of the respondent-applicant during which he appeared in CSE, 2014 and it is not disputed that before the year 2014, examinations which were conducted by the appellant, medical report was always made available to the individual candidate and it is only for the first time in the year 2014, this clause was inserted where the medical reports are being uploaded on the website of the Department which was considered to be the notice to all the candidates who had participated in the selection process which might have created some confusion with the respondent-applicant and once his name found place in the consolidated reserve list in January 2016, he made a representation on 10th March, 2016 along with his medical fitness certificate, and after the orders of this Court, the respondent- applicant has again been sent for re-medical examination and has been found medically fit for all services as it reveals from the medical report dated 12th May, 2022. | 1[ds]17. The provision manifests that in case of a candidate who is declared temporarily unfit, the re-medical fitness certificate in terms of the provision has to be furnished within six months from the date on which the candidate was declared to be temporarily unfit.20. Indisputedly, in the present case, the medical examination report was published on 17th June, 2015 indicating the respondent-applicant to be temporarily unfit and this is an admitted fact that the respondent-applicant approached for re-medical examination for the first time on 10th March, 2016, i.e., after six months of the medical examination report uploaded on 17th June 2015. The details regarding the number of such candidates for CSE-2014 to CSE-2020 who are declared medically unfit has also been provided to this Court. It may be noticed that in CSE-2014, there were 10 candidates including the respondent-applicant, declared temporarily unfit and in overall table for CSE-2014 to CSE-2020 indicates that there are 25 candidates who are declared temporarily unfit failed to submit an application within a stipulated time of six months after being declared as temporarily unfit and have not been allocated to any services in terms of the scheme of Rules of which a reference is made.21. We are also of the view that the period of six months which has been stipulated under Rule 7(a)(vii) of Appendix III of CSE Rules, 2014 of which reference has been made, the word ordinarily has to be conjointly read with the word maximum during which the candidate has to approach for re-medical examination from the date of uploading of the medical examination report on the website of the Department which indicates an outer limit of six months during which it is open to the candidate to approach for re-medical examination after being declared temporarily unfit from the date of the uploading of the medical examination report on the website of the Department and the fate of medical fitness is not dependent upon the result of the selection process held by the Commission.22. At the same time, there may be a situation as being projected by the appellant to this Court that in special cases where a pregnant lady may not be in a position and is unable to complete her medical examination within a period of six months, in the peculiar circumstances, the word ordinarily may be considered for relaxation to a limited extent but the kind of excuse which has been projected by the respondent-applicant that though he was found to be temporarily unfit but the consolidated reserve list was published on 19th January, 2016 where his name was placed at Sl. No. 16 and allotment to Group A services was published on 9th March, 2016, he immediately filed an application on 10th March, 2016, without loss of time, which was within the prescribed period of six months from the date of publication of the reserve list, in our considered view, is neither a valid justification nor is in conformity with the scheme of Rules of which a reference has been made.23. In our considered view, the word ordinarily in isolation as interpreted by the High Court without taking recourse to the word maximum as referred, is not sustainable in law.24. It is true that the case of the respondent-applicant on legal foundation is not sustainable but we are constrained to observe that it was the fifth and last attempt of the respondent-applicant during which he appeared in CSE, 2014 and it is not disputed that before the year 2014, examinations which were conducted by the appellant, medical report was always made available to the individual candidate and it is only for the first time in the year 2014, this clause was inserted where the medical reports are being uploaded on the website of the Department which was considered to be the notice to all the candidates who had participated in the selection process which might have created some confusion with the respondent-applicant and once his name found place in the consolidated reserve list in January 2016, he made a representation on 10th March, 2016 along with his medical fitness certificate, and after the orders of this Court, the respondent- applicant has again been sent for re-medical examination and has been found medically fit for all services as it reveals from the medical report dated 12th May, 2022. | 1 | 3,228 | 774 | ### Instruction:
Determine the likely decision of the case (acceptance (1) or rejection (0)) and follow up with an explanation highlighting key sentences that support this prediction.
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of this Court, the re-medical examination of the respondent-applicant has been conducted by the medical Board of Dr. Baba Saheb Ambedkar Hospital, Delhi on 12th May, 2022 and the medical report along with the enclosure dated 12th May, 2022 has been furnished to this Court where he has been found to be medically fit for all services. 17. The provision manifests that in case of a candidate who is declared temporarily unfit, the re-medical fitness certificate in terms of the provision has to be furnished within six months from the date on which the candidate was declared to be temporarily unfit. 18. In this regard, it is relevant to refer Rule 7(a)(vii) of Appendix-III of the CSE Rules 2014, which states as under:- In case of candidate who is to be declared Temporary Unfit, the period specified for re-examination should not ordinarily exceed six months at the maximum. On re-examination after the specified period these candidates should not be declared temporarily unfit for a further period but a final decision in regard to their fitness for appointment or otherwise should be given. 19. Rule 7(a)(vii) of Appendix-III of the CSE Rules 2014 clearly indicates that such of the candidates who are declared temporarily unfit, the period specified for re-medical examination is ordinarily six months at the maximum from the date of uploading of the medical examination report on the website of the Department. No communication by the Department regarding findings of the Department is communicated individually and uploading takes place only by the Medical Board. 20. Indisputedly, in the present case, the medical examination report was published on 17th June, 2015 indicating the respondent-applicant to be temporarily unfit and this is an admitted fact that the respondent-applicant approached for re-medical examination for the first time on 10th March, 2016, i.e., after six months of the medical examination report uploaded on 17th June 2015. The details regarding the number of such candidates for CSE-2014 to CSE-2020 who are declared medically unfit has also been provided to this Court. It may be noticed that in CSE-2014, there were 10 candidates including the respondent-applicant, declared temporarily unfit and in overall table for CSE-2014 to CSE-2020 indicates that there are 25 candidates who are declared temporarily unfit failed to submit an application within a stipulated time of six months after being declared as temporarily unfit and have not been allocated to any services in terms of the scheme of Rules of which a reference is made. The details regarding number of such candidates for CSE-2014 to CSE-2020 are as under:- Sl. No. CSE Year Number of candidates who were not allocated to any Service as they failed to submit medical fitness against temporarily unfit status within the prescribed limit 1. CSE-2014 10 2. CSE-2015 01 3. CSE-2016 07 4. CSE-2017 00 5. CSE-2018 01 6. CSE-2019 02 7. CSE-2020 04 21. We are also of the view that the period of six months which has been stipulated under Rule 7(a)(vii) of Appendix III of CSE Rules, 2014 of which reference has been made, the word ordinarily has to be conjointly read with the word maximum during which the candidate has to approach for re-medical examination from the date of uploading of the medical examination report on the website of the Department which indicates an outer limit of six months during which it is open to the candidate to approach for re-medical examination after being declared temporarily unfit from the date of the uploading of the medical examination report on the website of the Department and the fate of medical fitness is not dependent upon the result of the selection process held by the Commission. 22. At the same time, there may be a situation as being projected by the appellant to this Court that in special cases where a pregnant lady may not be in a position and is unable to complete her medical examination within a period of six months, in the peculiar circumstances, the word ordinarily may be considered for relaxation to a limited extent but the kind of excuse which has been projected by the respondent-applicant that though he was found to be temporarily unfit but the consolidated reserve list was published on 19th January, 2016 where his name was placed at Sl. No. 16 and allotment to Group A services was published on 9th March, 2016, he immediately filed an application on 10th March, 2016, without loss of time, which was within the prescribed period of six months from the date of publication of the reserve list, in our considered view, is neither a valid justification nor is in conformity with the scheme of Rules of which a reference has been made. 23. In our considered view, the word ordinarily in isolation as interpreted by the High Court without taking recourse to the word maximum as referred, is not sustainable in law. 24. It is true that the case of the respondent-applicant on legal foundation is not sustainable but we are constrained to observe that it was the fifth and last attempt of the respondent-applicant during which he appeared in CSE, 2014 and it is not disputed that before the year 2014, examinations which were conducted by the appellant, medical report was always made available to the individual candidate and it is only for the first time in the year 2014, this clause was inserted where the medical reports are being uploaded on the website of the Department which was considered to be the notice to all the candidates who had participated in the selection process which might have created some confusion with the respondent-applicant and once his name found place in the consolidated reserve list in January 2016, he made a representation on 10th March, 2016 along with his medical fitness certificate, and after the orders of this Court, the respondent- applicant has again been sent for re-medical examination and has been found medically fit for all services as it reveals from the medical report dated 12th May, 2022.
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17. The provision manifests that in case of a candidate who is declared temporarily unfit, the re-medical fitness certificate in terms of the provision has to be furnished within six months from the date on which the candidate was declared to be temporarily unfit.20. Indisputedly, in the present case, the medical examination report was published on 17th June, 2015 indicating the respondent-applicant to be temporarily unfit and this is an admitted fact that the respondent-applicant approached for re-medical examination for the first time on 10th March, 2016, i.e., after six months of the medical examination report uploaded on 17th June 2015. The details regarding the number of such candidates for CSE-2014 to CSE-2020 who are declared medically unfit has also been provided to this Court. It may be noticed that in CSE-2014, there were 10 candidates including the respondent-applicant, declared temporarily unfit and in overall table for CSE-2014 to CSE-2020 indicates that there are 25 candidates who are declared temporarily unfit failed to submit an application within a stipulated time of six months after being declared as temporarily unfit and have not been allocated to any services in terms of the scheme of Rules of which a reference is made.21. We are also of the view that the period of six months which has been stipulated under Rule 7(a)(vii) of Appendix III of CSE Rules, 2014 of which reference has been made, the word ordinarily has to be conjointly read with the word maximum during which the candidate has to approach for re-medical examination from the date of uploading of the medical examination report on the website of the Department which indicates an outer limit of six months during which it is open to the candidate to approach for re-medical examination after being declared temporarily unfit from the date of the uploading of the medical examination report on the website of the Department and the fate of medical fitness is not dependent upon the result of the selection process held by the Commission.22. At the same time, there may be a situation as being projected by the appellant to this Court that in special cases where a pregnant lady may not be in a position and is unable to complete her medical examination within a period of six months, in the peculiar circumstances, the word ordinarily may be considered for relaxation to a limited extent but the kind of excuse which has been projected by the respondent-applicant that though he was found to be temporarily unfit but the consolidated reserve list was published on 19th January, 2016 where his name was placed at Sl. No. 16 and allotment to Group A services was published on 9th March, 2016, he immediately filed an application on 10th March, 2016, without loss of time, which was within the prescribed period of six months from the date of publication of the reserve list, in our considered view, is neither a valid justification nor is in conformity with the scheme of Rules of which a reference has been made.23. In our considered view, the word ordinarily in isolation as interpreted by the High Court without taking recourse to the word maximum as referred, is not sustainable in law.24. It is true that the case of the respondent-applicant on legal foundation is not sustainable but we are constrained to observe that it was the fifth and last attempt of the respondent-applicant during which he appeared in CSE, 2014 and it is not disputed that before the year 2014, examinations which were conducted by the appellant, medical report was always made available to the individual candidate and it is only for the first time in the year 2014, this clause was inserted where the medical reports are being uploaded on the website of the Department which was considered to be the notice to all the candidates who had participated in the selection process which might have created some confusion with the respondent-applicant and once his name found place in the consolidated reserve list in January 2016, he made a representation on 10th March, 2016 along with his medical fitness certificate, and after the orders of this Court, the respondent- applicant has again been sent for re-medical examination and has been found medically fit for all services as it reveals from the medical report dated 12th May, 2022.
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Om Prakash Vs. Lalchand And Another | the said Press. It was suggested in cross-examination that the poster was printed after 14 May, 1968. P. W. 36 Jai Gopal Verma identified Exhibit P. W. 34/2 as a manuscript of the poster and further said that the witnesses identified Lalchand. Jai Gopal Verma proved his signature on Exhibit P. W. 34/2. Jai Gopal Verma said that Lalchand accompanied him to the Kwality Art Printers. Jai Gopal Verma further identified the signature of Muni Lal Azad. It was also suggested to Jai Gopal Verma that the poster was printed after 14 May, 1968. Muni Lal Azad, P. W. 37 said that he accompanied Jai Gopal Verma to Kwality Art Printers along with respondent Lalchand. He admitted his signature on Exhibit P. W. 34/2.13. Counsel on behalf of the respondent Lalchand contended that Lachhman Das was neither the Printer nor the Publisher and that Lachhman Das joined the Press in the month of April, 1968. Lachhman Das was a disinterested person. He sent a copy of the poster to the Chief Electoral Officer. The letter to the Chief Electoral Officer Exhibit P. W. 34/1 was in a sealed cover. It was opened in this Court. It was proved by Muni Lal Jain, Accountant in the office of the Chief electoral Officer. He proved that Exhibit P. W. 34/1 was the letter received from Kwality Art Printers on 2 May, 1968. The witness Muni Lal Jain further proved the receipt of said letter in the office of the Chief Electoral Officer, on 2 May, 1968. Muni Lal Jain identified the signatures of the clerks Jagmohan Saran Verma and D. N. Arora on Exhibit P. W. 34/1. Muni Lal Jain proved Exhibit P. W. 34/2 and Exhibit P. W. 34/3 which were the enclosures received along with exhibit P. W. 34/1.14. Counsel on behalf of the respondent Lalchand contended that the rubber stamp of the Chief Electoral Office bore the date 22 May, 1963 and there was intrinsic evidence to show that the first digit 2 was smudged with carbon ink. This argument cannot be accepted because of the dominant reason that no such suggestion was made to the witness from the Electoral Office or any other witness on behalf of the appellant. If such a case had been made, the appellant would have had an opportunity of dealing with it.15. Counsel on behalf of the respondent Lalchand contended that the receipt book and the bill register book of the Press were not produced. Lachhman Das, the Accountant of Kwality Art Printers was not asked to produce either the receipt book or the bill book. There was some dispute as to whether the signature of Lalchand on the manuscript poster Exhibit P. W. 34./2 was genuine or not. Ratan Lal Aggarwal, P. W. 58 said that the signature of the respondent Lalchand on Exhibit P. W. 34/2 was a genuine signature. The respondents witness No. 2, A. S. Kapoor said that the signature of Lalchand on Exhibit P. W. 34/2 was not the same as the admitted signature of Lalchand and in the opinion of the witness the signature on Exhibit P. W. 34/2 was "the work of a person who was well skilled in the art of traced forgery". It is rare for two experts to agree in cases of disputed signature. The Court has to arrive at the conclusion in the light of the entire evidence. Jai Gopal Verma said that Lalchand appended his signature in his presence. That portion of the evidence of Jai Gopal Verma was not impeached in cross-examination. Lachhman Das, the Accountant of the Kwality Art Printers said that the pamphlet was printed at the request of Lalchand who was identified by Muni Lal Azad and Jai Gopal Verma, This portion of the evidence of Lachhman Das was also not challenged in cross-examination.16. The poster on which the appellant relied is Exhibit P. W. 1/1. Exhibit P. W. 1/1 is as follows:"Appeal to the Voters of the Ellenabad Vidhan Sabha Constituency.Election (Rising Sun) Symbol Brothers:Just after one year election is being held. I hope I will get more support from public than before. Because you have seen the Adlu Badlu policy of Ch. Partap Singh son of Ch. Devi Dayal; Devi Lal has put up the second son as a candidate because of this fear. The deeds of Om Prakash are well known to the public. Under the auspices of his father Ch. Devi Lal, he had been indulging in smuggling and today he is asking for votes in the name of his father. I hope the people will show the face of defeat to such an obnoxious person. My election symbol is rising Sun, put stamp only on that.YoursLal Chand Khod,Ellenabad Constituency".17. Ganga Dhar Sharma, P. W. 31, said that a memorandum of appeal in favour of respondent Lalchand was printed. He spoke of Exhibit P. W. 34/1. The appeal which was published and distributed is Exhibit P. W. 34/2 which is the same as Exhibit P. W. 1/1. This appeal leaves no room for doubt that there were allegations against the personal character and conduct of the appellant Om Prakash who was described as "having been indulging in smuggling". In the said appeal, it was further said that the appellant was an obnoxious person.18. Various witnesses P. Ws. 14, 16, 18, 19, 21, 23, 29, 30 and 31 gave evidence of the distribution and publication of the appeal. They identified Exhibit P. W. 24/1 which is the same as Exhibit P. W. 34/2 and the evidence of distribution and publication is overwhelming.19. The evidence in the present case established beyond any measure of doubt first that Exhibit P.W. 1/1 which is the same as Exhibit P. W. 34/2 was published, secondly, that Lalchand got the same printed and published, thirdly, that the statement was in relation to the personal character and conduct of the appellant fourthly, the statement is false and fifthly, the same was calculated to prejudice the prospects of the appellants election. | 1[ds]Ram Dayal was formerly a member of the Congress Committee. He resigned from the Congress and contested the seat as an independent candidate against Choudhury Devi Lal and won the election in the year 1957. An election petition was filed by Choudhury Devi Lal against the witness Ram Dayal. Ram Dayal was eventually unseated as a result of the decision of this Court. The witness Ram Dayal helped the respondent Lalchand in the election of 1967 and also in the midterm election in the month of May, 1968. The witness Ram Dayal spoke of the Sat Guru Maharaj having exhorted the Namdharis to vote for Lalchand and warned them about the consequences if they failed to do so. The witness also spoke of the meeting at Rania village on 28th April, 1968. It is indeed strange and significant that Ram Dayal who supported respondent Lalchand and also attended meetings on his behalf came and gave evidence in favour of the appellant about the utterances of Sat Guru Jagjit Singh of the Namdhari sect. It is extremely unsafe and hazardous to rely on the uncorroborated and isolated oral testimony of such a person.7. P. W. 30 Parma Nand Sharma spoke of the meeting at Sant Nagar on 21st April, 1968 and said that Guru Jagjit Singh spoke at the meeting and proclaimed that it was the duty of every Namdhari to vote for respondent Lalchand and any one who violated the said Gurus direction would be excommunicated from the Panth. In cross-examination the witness Parma Nand Sharma said that he came to give evidence in favour of the Congress because he was summoned to appear as a witness and therefore he spoke the truth. It is obvious that when one speaks truth one does not proclaim it. It is obvious that the witness in view of his antecedents wanted to sound truthful because he came forward to give evidence in favour of thediary entry is to the effect that the Sat Guru Jagjit Singh appeared before the Sant Nagar Assembly. The diary entry does not mention about any alleged utterance by Sat Guru Jagjit Singh at the saidare unable to accept the oral evidence that there was any meeting on 21 April, 1968 as alleged by the appellant and that Sat Guru Jagjit Singh spoke at the meeting, to cast votes in favour of respondent Lalchand under threat of divine displeasure and spiritualis no documentary evidence in support of the allegation. The oral evidence is that of P. W. 11, P. W. 12 and P. W. 13. Kanshi Ram, P. W. 11 said that he was Kumhar and there was meeting of the Kumhars on 30 March, 1968. It was decided that a Kumhar should be made a member of the Legislative Assembly. He also said that the Kumhars decided at the said meeting to put up respondent Prithvi Raj as candidate. Kanshi Rams further evidence was that Bawa Bir Singh paid Rs. 20,000 to Prithvi Raj for election expenses. Kanshi Ram said that the payment was in the presence of respondent Lalchand. Jot Ram, P. W. 12 said that he was a Kumhar and his evidence was also that Bawa Bir Singh paid Rs. 20,000 to Prithvi Raj in the presence of Lalchand. Rawat, P. W. 13 who was also a Kumhar said that Bawa Bir Singh paid Rs. 20,000 to Prithvi Raj in the presence of Lalchand. The gist of the offence under sub-section (1) of section 123 of the Act is that there has to be a gift by a candidate or his agent or by any other person with the consent of a candidate or his election agent of any gratification, to any person with the object of inducing a person to stand or not to stand as a candidate at the election.The elements require to constitute an offence are first, that the gift has to be by a candidate or his agent or by any other person. Secondly, the gift is to be with the consent of the candidate or his election agent and the third important element is that the gratification is to be made with the object, directly or indirectly, of inducing a person to stand or not to stand in the election.In the present case, there is no evidence to hold that any gift was made by the candidate or his agent or by any other person with the consent of the candidate, namely, the respondent Lalchand. Secondly, there is no evidence that gratification was made with the object of inducing the respondent Prithvi Raj to stand or not to stand as aargument cannot be accepted because of the dominant reason that no such suggestion was made to the witness from the Electoral Office or any other witness on behalf of the appellant. If such a case had been made, the appellant would have had an opportunity of dealing withwas some dispute as to whether the signature of Lalchand on the manuscript poster Exhibit P. W. 34./2 was genuine or not. Ratan Lal Aggarwal, P. W. 58 said that the signature of the respondent Lalchand on Exhibit P. W. 34/2 was a genuine signature. The respondents witness No. 2, A. S. Kapoor said that the signature of Lalchand on Exhibit P. W. 34/2 was not the same as the admitted signature of Lalchand and in the opinion of the witness the signature on Exhibit P. W. 34/2 was "the work of a person who was well skilled in the art of traced forgery". It is rare for two experts to agree in cases of disputed signature. The Court has to arrive at the conclusion in the light of the entire evidence. Jai Gopal Verma said that Lalchand appended his signature in his presence. That portion of the evidence of Jai Gopal Verma was not impeached in cross-examination. Lachhman Das, the Accountant of the Kwality Art Printers said that the pamphlet was printed at the request of Lalchand who was identified by Muni Lal Azad and Jai Gopal Verma, This portion of the evidence of Lachhman Das was also not challenged ins some dispute as to whether the signature of Lalchand on the manuscript poster Exhibit P. W. 34./2 was genuine or not. Ratan Lal Aggarwal, P. W. 58 said that the signature of the respondent Lalchand on Exhibit P. W. 34/2 was a genuine signature. The respondents witness No. 2, A. S. Kapoor said that the signature of Lalchand on Exhibit P. W. 34/2 was not the same as the admitted signature of Lalchand and in the opinion of the witness the signature on Exhibit P. W. 34/2 was "the work of a person who was well skilled in the art of traced forgery". It is rare for two experts to agree in cases of disputed signature. The Court has to arrive at the conclusion in the light of the entire evidence. Jai Gopal Verma said that Lalchand appended his signature in his presence. That portion of the evidence of Jai Gopal Verma was not impeached in cross-examination. Lachhman Das, the Accountant of the Kwality Art Printers said that the pamphlet was printed at the request of Lalchand who was identified by Muni Lal Azad and Jai Gopal Verma, This portion of the evidence of Lachhman Das was also not challenged in | 1 | 3,061 | 1,302 | ### Instruction:
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the said Press. It was suggested in cross-examination that the poster was printed after 14 May, 1968. P. W. 36 Jai Gopal Verma identified Exhibit P. W. 34/2 as a manuscript of the poster and further said that the witnesses identified Lalchand. Jai Gopal Verma proved his signature on Exhibit P. W. 34/2. Jai Gopal Verma said that Lalchand accompanied him to the Kwality Art Printers. Jai Gopal Verma further identified the signature of Muni Lal Azad. It was also suggested to Jai Gopal Verma that the poster was printed after 14 May, 1968. Muni Lal Azad, P. W. 37 said that he accompanied Jai Gopal Verma to Kwality Art Printers along with respondent Lalchand. He admitted his signature on Exhibit P. W. 34/2.13. Counsel on behalf of the respondent Lalchand contended that Lachhman Das was neither the Printer nor the Publisher and that Lachhman Das joined the Press in the month of April, 1968. Lachhman Das was a disinterested person. He sent a copy of the poster to the Chief Electoral Officer. The letter to the Chief Electoral Officer Exhibit P. W. 34/1 was in a sealed cover. It was opened in this Court. It was proved by Muni Lal Jain, Accountant in the office of the Chief electoral Officer. He proved that Exhibit P. W. 34/1 was the letter received from Kwality Art Printers on 2 May, 1968. The witness Muni Lal Jain further proved the receipt of said letter in the office of the Chief Electoral Officer, on 2 May, 1968. Muni Lal Jain identified the signatures of the clerks Jagmohan Saran Verma and D. N. Arora on Exhibit P. W. 34/1. Muni Lal Jain proved Exhibit P. W. 34/2 and Exhibit P. W. 34/3 which were the enclosures received along with exhibit P. W. 34/1.14. Counsel on behalf of the respondent Lalchand contended that the rubber stamp of the Chief Electoral Office bore the date 22 May, 1963 and there was intrinsic evidence to show that the first digit 2 was smudged with carbon ink. This argument cannot be accepted because of the dominant reason that no such suggestion was made to the witness from the Electoral Office or any other witness on behalf of the appellant. If such a case had been made, the appellant would have had an opportunity of dealing with it.15. Counsel on behalf of the respondent Lalchand contended that the receipt book and the bill register book of the Press were not produced. Lachhman Das, the Accountant of Kwality Art Printers was not asked to produce either the receipt book or the bill book. There was some dispute as to whether the signature of Lalchand on the manuscript poster Exhibit P. W. 34./2 was genuine or not. Ratan Lal Aggarwal, P. W. 58 said that the signature of the respondent Lalchand on Exhibit P. W. 34/2 was a genuine signature. The respondents witness No. 2, A. S. Kapoor said that the signature of Lalchand on Exhibit P. W. 34/2 was not the same as the admitted signature of Lalchand and in the opinion of the witness the signature on Exhibit P. W. 34/2 was "the work of a person who was well skilled in the art of traced forgery". It is rare for two experts to agree in cases of disputed signature. The Court has to arrive at the conclusion in the light of the entire evidence. Jai Gopal Verma said that Lalchand appended his signature in his presence. That portion of the evidence of Jai Gopal Verma was not impeached in cross-examination. Lachhman Das, the Accountant of the Kwality Art Printers said that the pamphlet was printed at the request of Lalchand who was identified by Muni Lal Azad and Jai Gopal Verma, This portion of the evidence of Lachhman Das was also not challenged in cross-examination.16. The poster on which the appellant relied is Exhibit P. W. 1/1. Exhibit P. W. 1/1 is as follows:"Appeal to the Voters of the Ellenabad Vidhan Sabha Constituency.Election (Rising Sun) Symbol Brothers:Just after one year election is being held. I hope I will get more support from public than before. Because you have seen the Adlu Badlu policy of Ch. Partap Singh son of Ch. Devi Dayal; Devi Lal has put up the second son as a candidate because of this fear. The deeds of Om Prakash are well known to the public. Under the auspices of his father Ch. Devi Lal, he had been indulging in smuggling and today he is asking for votes in the name of his father. I hope the people will show the face of defeat to such an obnoxious person. My election symbol is rising Sun, put stamp only on that.YoursLal Chand Khod,Ellenabad Constituency".17. Ganga Dhar Sharma, P. W. 31, said that a memorandum of appeal in favour of respondent Lalchand was printed. He spoke of Exhibit P. W. 34/1. The appeal which was published and distributed is Exhibit P. W. 34/2 which is the same as Exhibit P. W. 1/1. This appeal leaves no room for doubt that there were allegations against the personal character and conduct of the appellant Om Prakash who was described as "having been indulging in smuggling". In the said appeal, it was further said that the appellant was an obnoxious person.18. Various witnesses P. Ws. 14, 16, 18, 19, 21, 23, 29, 30 and 31 gave evidence of the distribution and publication of the appeal. They identified Exhibit P. W. 24/1 which is the same as Exhibit P. W. 34/2 and the evidence of distribution and publication is overwhelming.19. The evidence in the present case established beyond any measure of doubt first that Exhibit P.W. 1/1 which is the same as Exhibit P. W. 34/2 was published, secondly, that Lalchand got the same printed and published, thirdly, that the statement was in relation to the personal character and conduct of the appellant fourthly, the statement is false and fifthly, the same was calculated to prejudice the prospects of the appellants election.
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and proclaimed that it was the duty of every Namdhari to vote for respondent Lalchand and any one who violated the said Gurus direction would be excommunicated from the Panth. In cross-examination the witness Parma Nand Sharma said that he came to give evidence in favour of the Congress because he was summoned to appear as a witness and therefore he spoke the truth. It is obvious that when one speaks truth one does not proclaim it. It is obvious that the witness in view of his antecedents wanted to sound truthful because he came forward to give evidence in favour of thediary entry is to the effect that the Sat Guru Jagjit Singh appeared before the Sant Nagar Assembly. The diary entry does not mention about any alleged utterance by Sat Guru Jagjit Singh at the saidare unable to accept the oral evidence that there was any meeting on 21 April, 1968 as alleged by the appellant and that Sat Guru Jagjit Singh spoke at the meeting, to cast votes in favour of respondent Lalchand under threat of divine displeasure and spiritualis no documentary evidence in support of the allegation. The oral evidence is that of P. W. 11, P. W. 12 and P. W. 13. Kanshi Ram, P. W. 11 said that he was Kumhar and there was meeting of the Kumhars on 30 March, 1968. It was decided that a Kumhar should be made a member of the Legislative Assembly. He also said that the Kumhars decided at the said meeting to put up respondent Prithvi Raj as candidate. Kanshi Rams further evidence was that Bawa Bir Singh paid Rs. 20,000 to Prithvi Raj for election expenses. Kanshi Ram said that the payment was in the presence of respondent Lalchand. Jot Ram, P. W. 12 said that he was a Kumhar and his evidence was also that Bawa Bir Singh paid Rs. 20,000 to Prithvi Raj in the presence of Lalchand. Rawat, P. W. 13 who was also a Kumhar said that Bawa Bir Singh paid Rs. 20,000 to Prithvi Raj in the presence of Lalchand. The gist of the offence under sub-section (1) of section 123 of the Act is that there has to be a gift by a candidate or his agent or by any other person with the consent of a candidate or his election agent of any gratification, to any person with the object of inducing a person to stand or not to stand as a candidate at the election.The elements require to constitute an offence are first, that the gift has to be by a candidate or his agent or by any other person. Secondly, the gift is to be with the consent of the candidate or his election agent and the third important element is that the gratification is to be made with the object, directly or indirectly, of inducing a person to stand or not to stand in the election.In the present case, there is no evidence to hold that any gift was made by the candidate or his agent or by any other person with the consent of the candidate, namely, the respondent Lalchand. Secondly, there is no evidence that gratification was made with the object of inducing the respondent Prithvi Raj to stand or not to stand as aargument cannot be accepted because of the dominant reason that no such suggestion was made to the witness from the Electoral Office or any other witness on behalf of the appellant. If such a case had been made, the appellant would have had an opportunity of dealing withwas some dispute as to whether the signature of Lalchand on the manuscript poster Exhibit P. W. 34./2 was genuine or not. Ratan Lal Aggarwal, P. W. 58 said that the signature of the respondent Lalchand on Exhibit P. W. 34/2 was a genuine signature. The respondents witness No. 2, A. S. Kapoor said that the signature of Lalchand on Exhibit P. W. 34/2 was not the same as the admitted signature of Lalchand and in the opinion of the witness the signature on Exhibit P. W. 34/2 was "the work of a person who was well skilled in the art of traced forgery". It is rare for two experts to agree in cases of disputed signature. The Court has to arrive at the conclusion in the light of the entire evidence. Jai Gopal Verma said that Lalchand appended his signature in his presence. That portion of the evidence of Jai Gopal Verma was not impeached in cross-examination. Lachhman Das, the Accountant of the Kwality Art Printers said that the pamphlet was printed at the request of Lalchand who was identified by Muni Lal Azad and Jai Gopal Verma, This portion of the evidence of Lachhman Das was also not challenged ins some dispute as to whether the signature of Lalchand on the manuscript poster Exhibit P. W. 34./2 was genuine or not. Ratan Lal Aggarwal, P. W. 58 said that the signature of the respondent Lalchand on Exhibit P. W. 34/2 was a genuine signature. The respondents witness No. 2, A. S. Kapoor said that the signature of Lalchand on Exhibit P. W. 34/2 was not the same as the admitted signature of Lalchand and in the opinion of the witness the signature on Exhibit P. W. 34/2 was "the work of a person who was well skilled in the art of traced forgery". It is rare for two experts to agree in cases of disputed signature. The Court has to arrive at the conclusion in the light of the entire evidence. Jai Gopal Verma said that Lalchand appended his signature in his presence. That portion of the evidence of Jai Gopal Verma was not impeached in cross-examination. Lachhman Das, the Accountant of the Kwality Art Printers said that the pamphlet was printed at the request of Lalchand who was identified by Muni Lal Azad and Jai Gopal Verma, This portion of the evidence of Lachhman Das was also not challenged in
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Assistant General Manager Vs. Radhey Shyam Pandey | had opted for voluntary retirement under VRS 2000 are entitled to addition of five years of notional service in calculating the length of service for the purpose of the said Scheme as per Regulation 29(5) of the Pension Regulations, 1995?" 42. To examine the question posed, the Court thought it appropriate to examine the contract and the circumstances in which it was made in order to see whether or not from the nature of it, the parties must have made their bargain on the footing that a particular thing or state of things would continue to exist. 43. I have already referred to Clause 6 of the Scheme, which deals with other benefits. Sub-clause (3) of Clause 6 stipulates that an employee would be entitled to get pension in terms of the State Bank of India Employees Pension Fund Rules on the relevant date. The High Courts have placed reliance on the second part of Rule 22(i)(a). Similar contention has been advanced before us. Per contra, Mr. Rohtagi would submit that it is Rule 22(i)(c) which would be applicable. I find force in the said submission, for Rule 22(i)(a) deals with the concept of retirement and 22(i)(c) deals with the concept of retirement on request. In K. Mohandas (supra), the Rule was read into the Scheme in the absence of any other postulate. Same is the case here and, therefore, I read the Rule to the Scheme. Interpreting the 1995 Regulations, this Court had said that it will apply in entirety and, therefore, benefit was extended in Rule 29(5). Be it noted, in the said Regulation, it was categorically provided that pensionary benefits should be available to a person seeking voluntary retirement if he has put in 20 years of service. Same is the provision here, that is, 20 years of service irrespective of the age. As some doubts had arose, a clarificatory circular was issued on 10.1.2001. Relevant part has already been reproduced earlier. It has been clearly clarified that as per existing Rules, employees who have not completed 20 years of Pensionable Service are not eligible for pension. This clarification is in consonance with the Rules. The amendment facet which has come into existence afterwards is absolutely inconsequential as it deals with different facets of Rule 22(i)(a). In this context, reference to circular dated 11.1.2001 is absolutely necessitous. The relevant part reads as follows: "In this connection, queries have been raised whether an employee who submits his application for retirement under SBIVRS can withdraw such an application subsequently. Corporate Centre have examined the issue and have advised that the scheme is purely voluntary. The role of the employee is active. It is his conscious decision and there will be no reason for his withdrawal of application at a later date. However, there could be few, yet genuine cases where the employees would like to withdraw the application submitted under the scheme for various reasons. It has, therefore, been decided that the employee who has submitted an application for retirement under SBIVRS may be permitted to withdraw the application on or before 15th February, 2001. For this purpose, the employee will have to make a written request which must reach the Branch Manager/head of the Department/Head of the Unit i.e. authority to whom the application for retirement under SBIVRS has been submitted, on or before 15.02.2001. The authority receiving the applications for withdrawal must forward it to the competent authority immediately but not later than the following day and obtain a confirmation to that effect from the competent authority." 44. Both the circulars were almost simultaneous and both were within the knowledge of the employees and if an employee desired to withdraw, he could have done so as time was there till 15.2.2001. None of the Respondents chose to withdraw. In the absence of withdrawal, there cannot be any trace of doubt that the employees would be governed by the rules existing at the time of floating of the Scheme which has to be read into the Scheme, for the Scheme clearly stipulates that the employees availing the benefit of the Scheme would be entitled to pension as per the Pension Rules. I have already scanned the anatomy of the Rules and I notice that there is a categorical distinction between retirement and voluntary retirement. In all the impugned judgments, as I find, the High Courts have not appreciated the said distinction and applied the Rule pertaining to normal retirement. If the decisions in K. Mohandas (supra) and Ganpat Singh Deora (supra) are read carefully, it will go a long way to show that a voluntary retirement and retirement are distinguishable, if the Rule/Regulations/Scheme distinguishes. In the case at hand, it is clear as day that the Rule carves out two categories of retirement, one, normal retirement on superannuation and second, retirement on request i.e. voluntary retirement, ordinarily called the golden handshake and, therefore, the scheme was floated. In the instant case, as I perceive, the Scheme which is more beneficial was provided. It had the pension and the ex-gratia. However, it had a condition as enumerated in the Rule that if an employee had not completed 20 years of service, as per Rule 22(i)(c), he would not get pension. In K. Mohandas (supra), if an employee has completed 20 years of service, apart from pensionary benefits, he would also get the benefit under Regulation 29(5) as stipulated therein. To elaborate, unless one is not entitled to pension, the other additional benefits pertaining to pension do not arise. I may hasten to add that I am only concerned with the concept of voluntary retirement under the Rules and the Scheme and as I find, the Rule cannot be interpreted as employees would be entitled to pension. That is neither the intention nor the spirit of the Rule, which has to be read into the Scheme as a part of it. 45. I have been apprised with regard to the relevant details of the Respondents herein. It is as follows: | 1[ds]Analysing the said Rule, the High Court opined that the employees would be covered under second part of(a) of Rule 22(i) which was in existence on the date when thesubmitted his request for voluntary retirement. That apart, the High Court has also held even after amendment on 09.03.2001, by which another clause has been added, that is, third part of(a), would not affect the claim of the employees for pension as he is entitled to pension in the second part of Rule 22(i) (a). Here, as I find, the High Court has opined as thewas in service of Bank on 1.11.1993 and had completed 10 years of pensionable service and attained the age of 58 years, he would be entitled to pension. There is no doubt that the Government of India, on 22.5.98, advised all the banks that the age of retirement would be 60 years. Accordingly, the Board of SBI, on 22.5.1998 itself, passed a resolution whereby it fixed the age of retirement 60 years w.e.f. that date. As a consequence ofof age of retirement, the rules were amended and third part of Rule 22(i)(a) was added for all employees who were in service of the bank on or before 22.5.98 and had put in 10 years of pensionable service to be eligible for pension benefit provided that they have attained the age of 60 years. As has been stated earlier, thehad not retired on attaining the age of superannuation but sought voluntary retirement under the SBI VRS. The Bank has placed reliance on the clarificatory circular issued by the Deputy Managing Director on 10/15.1.2001, which lays a postulate that employees who have not completed 20 years of pensionable service are not eligible for pension.Keeping in view the aforesaid pronouncements, I shall advert to the Regulations and the Scheme in question. From the aforesaid two decisions, it is graphically clear that the Court has read into the scheme, Regulations governing the pension. In the case at hand, as I find, the Regulation 22(i)(a) refers to three categories; twenty years of pensionable service and attaining age of fifty years, or as on 1.11.1993 an employee in service has completed ten years of pensionable service provided he has attained the age ofyears, or an employee to be in service of the Bank on or after 22.05.1998 and has completed ten years of pensionable service provided that he has attained the age of sixty years. The High Court has held that the employees would be covered under second part of Clause (a). I have already dealt with(b). Mr. Rohtagi has heavily relied on Clause 22(i)(c). It really requires close scrutiny. It stipulates that a member shall be entitled to pension on completion of 20 years of pensionable service irrespective of the age he has attained if the retirement is at his own request in writing. Thus, there is a distinction between a normal retirement and a voluntary retirement. A voluntary retirement stands in a distinction to retirement and also retirement which comes under Clause 22(i)(b) which dwells on sanction of competent authority and member being incapacitated. A scheme has come into existence because of certain objectives. The objectives of the scheme were to have a balancedproviding for mobility, training, development of skills and succession plans forpositions, to provide for an exit for employees who have an honest feeling that they should now retire and take rest or that there are better opportunities elsewhere, to have overall reduction in the existing strength of the employees and to increase productivity and profitability. Clause 3 of the Scheme provides eligibility criterion. It reads asScheme will be open to all permanent employees of the Bank except those specifically mentioned aswho have put in 15 years of service or have completed 40 years of age as on 31st December 2000. Age will be reckoned on the basis of the date of birth as entered in the service4 deals with ineligibility which need not be referred to. Clause 5 deals with amount ofClause 6 deals with other benefits which I have already referred to. Clause 6(c) clearly stipulates that an employee seeking voluntary retirement would have the benefit of pension in terms of State Bank of IndiaPension Fund Rules on the relevant date.In this context, what I have noticed in the case of K. Mohandas (supra) that the Court has referred to the Scheme to understand the true meaning of several clauses; formulation of the contractual scheme where reference has been made to Pension Regulations 1995 of the Banks which were in appeal before this Court and the special salient features of the scheme which stipulated that an employee whose application for voluntary retirement is accepted and relieved from the Bank shall be eligible for contributory provident fund or own contribution of provident fund and pension in terms of the employees Pension Regulations 1995, in case of those who have opted for pension and have put in 20 completed years of service in the Bank. The Court also referred to Regulations 28 and 29, which deals with superannuation pension and the pension on voluntary retirement respectively. The Court also took note of the fact that all employees who have completed 20 years of service and the amendment in Regulation 28, which was carried out in 2002 with retrospective effect from 1.9.2000 and the amendment inserted a proviso which provided that pension shall also be granted to an employee who opts to retire before attaining the age of superannuation but after having served for a minimum period of 13 years in terms of any scheme that may be framed for the purpose by theBoard with the concurrence of the Government. The Court took note of the fact that the benefits provided under Regulation 29 were not found to be attractive by the employees and, therefore, the necessity arose for floating a special scheme i.e.The grievance of the optees in the case was that they were given the retiral benefits by the00 save and except the benefit of pension under Regulation 29(5). Regulation 29(5) in the case of those banks is asqualifying service of an employee retiring voluntarily under this Regulation shall be increased by a period not exceeding five years, subject to the condition that the total qualifying service rendered by such employee shall not in any case exceedOne of the contentions canvassed by the Bank was that the Regulation 29 does not cover the persons retired underwhich is dehors the statutory scheme for voluntary retirement. The counter submission on behalf of the employees was that by making provisions in the scheme that the optees would be eligible for the benefits in addition to theamount, inter alia, pension as per the Pension Regulations, 1995, the employees understood that what was contemplated was pension under Regulation 29 and, therefore, any ambiguity in VRS 2000 ought to have been construed and harmonized with the intention of the parties; Regulation 29 was the onlyunder the Pension Regulations, 1995, applicable to the voluntary retirement and, therefore, Regulation 29, ipso facto, became the terms of the contract; and that each and every paragraph of Regulation 29 can be made applicable to an opteeof more than 20 years of service without coming into conflict with any provision of the scheme; the notice period of three months in Regulation 29(3) can be waived at the discretion of the banks.To examine the question posed, the Court thought it appropriate to examine the contract and the circumstances in which it was made in order to see whether or not from the nature of it, the parties must have made their bargain on the footing that a particular thing or state of things would continue to exist.I have already referred to Clause 6 of the Scheme, which deals withse (3) of Clause 6 stipulates that an employee would be entitled to get pension in terms of the State Bank of India EmployeesPension Fund Rules on the relevant date.The High Courts have placed reliance on the second part of Rule 22(i)(a). Similar contention has been advanced before us. Per contra, Mr. Rohtagi would submit that it is Rule 22(i)(c) which would be applicable. I find force in the said submission, for Rule 22(i)(a) deals with the concept of retirement and 22(i)(c) deals with the concept of retirement on request. In K. Mohandas (supra), the Rule was read into the Scheme in the absence of any other postulate. Same is the case here and, therefore, I read the Rule to the Scheme. Interpreting the 1995 Regulations, this Court had said that it will apply in entirety and, therefore, benefit was extended in Rule 29(5). Be it noted, in the said Regulation, it was categorically provided that pensionary benefits should be available to a person seeking voluntary retirement if he has put in 20 years of service. Same is the provision here, that is, 20 years of service irrespective of the age. As some doubts had arose, a clarificatory circular was issued on 10.1.2001. Relevant part has already been reproduced earlier. It has been clearly clarified that as per existing Rules, employees who have not completed 20 years of Pensionable Service are not eligible for pension. This clarification is in consonance with the Rules. The amendment facet which has come into existence afterwards is absolutely inconsequential as it deals with different facets of Rule 22(i)(a). In this context, reference to circular dated 11.1.2001 is absolutely necessitous.Both the circulars were almost simultaneous and both were within the knowledge of the employees and if an employee desired to withdraw, he could have done so as time was there till 15.2.2001. None of thechose to withdraw. In the absence of withdrawal, there cannot be any trace of doubt that the employees would be governed by the rules existing at the time of floating of the Scheme which has to be read into the Scheme, for the Scheme clearly stipulates that the employees availing the benefit of the Scheme would be entitled to pension as per the Pension Rules. I have already scanned the anatomy of the Rules and I notice that there is a categorical distinction between. In all the impugned judgments, as I find, the High Courts have not appreciated the said distinction and applied the Rule pertaining to normal retirement. If the decisions in K. Mohandas (supra) and Ganpat Singh Deora (supra) are read carefully, it will go a long way to show that a voluntary retirement and retirement are distinguishable, if the Rule/Regulations/Schemethe case at hand, it is clear as day that the Rule carves out two categories of retirement, one, normal retirement on superannuation and second, retirement on request i.e. voluntary retirement, ordinarily called the golden handshake and, therefore, the scheme was floated. In the instant case, as I perceive, the Scheme which is more beneficial was provided. It had the pension and theHowever, it had a condition as enumerated in the Rule that if an employee had not completed 20 years of service, as per Rule 22(i)(c), he would not get pension. In K. Mohandas (supra), if an employee has completed 20 years of service, apart from pensionary benefits, he would also get the benefit under Regulation 29(5) as stipulated therein. To elaborate, unless one is not entitled to pension, the other additional benefits pertaining to pension do not arise. I may hasten to add that I am only concerned with the concept of voluntary retirement under the Rules and the Scheme and as I find, the Rule cannot be interpreted as employees would be entitled to pension. That is neither the intention nor the spirit of the Rule, which has to be read into the Scheme as a part of it. | 1 | 14,946 | 2,210 | ### Instruction:
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had opted for voluntary retirement under VRS 2000 are entitled to addition of five years of notional service in calculating the length of service for the purpose of the said Scheme as per Regulation 29(5) of the Pension Regulations, 1995?" 42. To examine the question posed, the Court thought it appropriate to examine the contract and the circumstances in which it was made in order to see whether or not from the nature of it, the parties must have made their bargain on the footing that a particular thing or state of things would continue to exist. 43. I have already referred to Clause 6 of the Scheme, which deals with other benefits. Sub-clause (3) of Clause 6 stipulates that an employee would be entitled to get pension in terms of the State Bank of India Employees Pension Fund Rules on the relevant date. The High Courts have placed reliance on the second part of Rule 22(i)(a). Similar contention has been advanced before us. Per contra, Mr. Rohtagi would submit that it is Rule 22(i)(c) which would be applicable. I find force in the said submission, for Rule 22(i)(a) deals with the concept of retirement and 22(i)(c) deals with the concept of retirement on request. In K. Mohandas (supra), the Rule was read into the Scheme in the absence of any other postulate. Same is the case here and, therefore, I read the Rule to the Scheme. Interpreting the 1995 Regulations, this Court had said that it will apply in entirety and, therefore, benefit was extended in Rule 29(5). Be it noted, in the said Regulation, it was categorically provided that pensionary benefits should be available to a person seeking voluntary retirement if he has put in 20 years of service. Same is the provision here, that is, 20 years of service irrespective of the age. As some doubts had arose, a clarificatory circular was issued on 10.1.2001. Relevant part has already been reproduced earlier. It has been clearly clarified that as per existing Rules, employees who have not completed 20 years of Pensionable Service are not eligible for pension. This clarification is in consonance with the Rules. The amendment facet which has come into existence afterwards is absolutely inconsequential as it deals with different facets of Rule 22(i)(a). In this context, reference to circular dated 11.1.2001 is absolutely necessitous. The relevant part reads as follows: "In this connection, queries have been raised whether an employee who submits his application for retirement under SBIVRS can withdraw such an application subsequently. Corporate Centre have examined the issue and have advised that the scheme is purely voluntary. The role of the employee is active. It is his conscious decision and there will be no reason for his withdrawal of application at a later date. However, there could be few, yet genuine cases where the employees would like to withdraw the application submitted under the scheme for various reasons. It has, therefore, been decided that the employee who has submitted an application for retirement under SBIVRS may be permitted to withdraw the application on or before 15th February, 2001. For this purpose, the employee will have to make a written request which must reach the Branch Manager/head of the Department/Head of the Unit i.e. authority to whom the application for retirement under SBIVRS has been submitted, on or before 15.02.2001. The authority receiving the applications for withdrawal must forward it to the competent authority immediately but not later than the following day and obtain a confirmation to that effect from the competent authority." 44. Both the circulars were almost simultaneous and both were within the knowledge of the employees and if an employee desired to withdraw, he could have done so as time was there till 15.2.2001. None of the Respondents chose to withdraw. In the absence of withdrawal, there cannot be any trace of doubt that the employees would be governed by the rules existing at the time of floating of the Scheme which has to be read into the Scheme, for the Scheme clearly stipulates that the employees availing the benefit of the Scheme would be entitled to pension as per the Pension Rules. I have already scanned the anatomy of the Rules and I notice that there is a categorical distinction between retirement and voluntary retirement. In all the impugned judgments, as I find, the High Courts have not appreciated the said distinction and applied the Rule pertaining to normal retirement. If the decisions in K. Mohandas (supra) and Ganpat Singh Deora (supra) are read carefully, it will go a long way to show that a voluntary retirement and retirement are distinguishable, if the Rule/Regulations/Scheme distinguishes. In the case at hand, it is clear as day that the Rule carves out two categories of retirement, one, normal retirement on superannuation and second, retirement on request i.e. voluntary retirement, ordinarily called the golden handshake and, therefore, the scheme was floated. In the instant case, as I perceive, the Scheme which is more beneficial was provided. It had the pension and the ex-gratia. However, it had a condition as enumerated in the Rule that if an employee had not completed 20 years of service, as per Rule 22(i)(c), he would not get pension. In K. Mohandas (supra), if an employee has completed 20 years of service, apart from pensionary benefits, he would also get the benefit under Regulation 29(5) as stipulated therein. To elaborate, unless one is not entitled to pension, the other additional benefits pertaining to pension do not arise. I may hasten to add that I am only concerned with the concept of voluntary retirement under the Rules and the Scheme and as I find, the Rule cannot be interpreted as employees would be entitled to pension. That is neither the intention nor the spirit of the Rule, which has to be read into the Scheme as a part of it. 45. I have been apprised with regard to the relevant details of the Respondents herein. It is as follows:
### Response:
1
### Explanation:
Court took note of the fact that the benefits provided under Regulation 29 were not found to be attractive by the employees and, therefore, the necessity arose for floating a special scheme i.e.The grievance of the optees in the case was that they were given the retiral benefits by the00 save and except the benefit of pension under Regulation 29(5). Regulation 29(5) in the case of those banks is asqualifying service of an employee retiring voluntarily under this Regulation shall be increased by a period not exceeding five years, subject to the condition that the total qualifying service rendered by such employee shall not in any case exceedOne of the contentions canvassed by the Bank was that the Regulation 29 does not cover the persons retired underwhich is dehors the statutory scheme for voluntary retirement. The counter submission on behalf of the employees was that by making provisions in the scheme that the optees would be eligible for the benefits in addition to theamount, inter alia, pension as per the Pension Regulations, 1995, the employees understood that what was contemplated was pension under Regulation 29 and, therefore, any ambiguity in VRS 2000 ought to have been construed and harmonized with the intention of the parties; Regulation 29 was the onlyunder the Pension Regulations, 1995, applicable to the voluntary retirement and, therefore, Regulation 29, ipso facto, became the terms of the contract; and that each and every paragraph of Regulation 29 can be made applicable to an opteeof more than 20 years of service without coming into conflict with any provision of the scheme; the notice period of three months in Regulation 29(3) can be waived at the discretion of the banks.To examine the question posed, the Court thought it appropriate to examine the contract and the circumstances in which it was made in order to see whether or not from the nature of it, the parties must have made their bargain on the footing that a particular thing or state of things would continue to exist.I have already referred to Clause 6 of the Scheme, which deals withse (3) of Clause 6 stipulates that an employee would be entitled to get pension in terms of the State Bank of India EmployeesPension Fund Rules on the relevant date.The High Courts have placed reliance on the second part of Rule 22(i)(a). Similar contention has been advanced before us. Per contra, Mr. Rohtagi would submit that it is Rule 22(i)(c) which would be applicable. I find force in the said submission, for Rule 22(i)(a) deals with the concept of retirement and 22(i)(c) deals with the concept of retirement on request. In K. Mohandas (supra), the Rule was read into the Scheme in the absence of any other postulate. Same is the case here and, therefore, I read the Rule to the Scheme. Interpreting the 1995 Regulations, this Court had said that it will apply in entirety and, therefore, benefit was extended in Rule 29(5). Be it noted, in the said Regulation, it was categorically provided that pensionary benefits should be available to a person seeking voluntary retirement if he has put in 20 years of service. Same is the provision here, that is, 20 years of service irrespective of the age. As some doubts had arose, a clarificatory circular was issued on 10.1.2001. Relevant part has already been reproduced earlier. It has been clearly clarified that as per existing Rules, employees who have not completed 20 years of Pensionable Service are not eligible for pension. This clarification is in consonance with the Rules. The amendment facet which has come into existence afterwards is absolutely inconsequential as it deals with different facets of Rule 22(i)(a). In this context, reference to circular dated 11.1.2001 is absolutely necessitous.Both the circulars were almost simultaneous and both were within the knowledge of the employees and if an employee desired to withdraw, he could have done so as time was there till 15.2.2001. None of thechose to withdraw. In the absence of withdrawal, there cannot be any trace of doubt that the employees would be governed by the rules existing at the time of floating of the Scheme which has to be read into the Scheme, for the Scheme clearly stipulates that the employees availing the benefit of the Scheme would be entitled to pension as per the Pension Rules. I have already scanned the anatomy of the Rules and I notice that there is a categorical distinction between. In all the impugned judgments, as I find, the High Courts have not appreciated the said distinction and applied the Rule pertaining to normal retirement. If the decisions in K. Mohandas (supra) and Ganpat Singh Deora (supra) are read carefully, it will go a long way to show that a voluntary retirement and retirement are distinguishable, if the Rule/Regulations/Schemethe case at hand, it is clear as day that the Rule carves out two categories of retirement, one, normal retirement on superannuation and second, retirement on request i.e. voluntary retirement, ordinarily called the golden handshake and, therefore, the scheme was floated. In the instant case, as I perceive, the Scheme which is more beneficial was provided. It had the pension and theHowever, it had a condition as enumerated in the Rule that if an employee had not completed 20 years of service, as per Rule 22(i)(c), he would not get pension. In K. Mohandas (supra), if an employee has completed 20 years of service, apart from pensionary benefits, he would also get the benefit under Regulation 29(5) as stipulated therein. To elaborate, unless one is not entitled to pension, the other additional benefits pertaining to pension do not arise. I may hasten to add that I am only concerned with the concept of voluntary retirement under the Rules and the Scheme and as I find, the Rule cannot be interpreted as employees would be entitled to pension. That is neither the intention nor the spirit of the Rule, which has to be read into the Scheme as a part of it.
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Centre for Public Interest Litigation Vs. Union of India & Others | were a lot of deliberations in the Department, consultations were held with other Ministries i.e., Department of Economic Affairs, Department of Industrial Promotion and Policy on the various issues relating of auction of 3G and BWA Spectrum. The submission is that all aspects, relevant to the issue were thoroughly examined and deliberated upon. It was noted that since BWA spectrum will be used for rural development, the SUC is kept at 1% of AGR. Further, it was also noted that since spectrum is being auctioned and the price discovery is through a market mechanism, the bidders will factor in the annual charges in their bids. Therefore, keeping BWA annual spectrum charge at 1% will have no adverse revenue implications. The aforesaid is the rationale given for fixation of 1% of AGR as SUC. 48. On going through the records, we find that the decision, namely, SUC be fixed at 1% AGR was based on relevant considerations. Not only TRAI had recommended the aforesaid charge to be fixed, there was an in depth examination of this recommendation of the TRAI by Government before accepting the same. Furthermore, it is also pertinent to note that on the basis of aforesaid decision, specific provisions were incorporated in the NIA for SUC for BWA spectrum. Clause 3.5 of the NIA, in this behalf, is as under: "3.5 Spectrum usage chargesLicensees using BWA Spectrum need to pay 1% of AGR from services using this spectrum as annual spectrum charge irrespective of the licence held by them. Such revenue would be required to be reported separately." 49. The aforesaid discussion, thus, demonstrates that the main consideration that prevailed with the Government in keeping the SUC at 1% of AGR was that BWA spectrum was to be used for rural development. It also needs to be highlighted that in line with the objective of rural development, more rural oriented roll out obligations for BWA spectrum in category A, B and C service areas, were prescribed, as can seen from the following clauses: "3.4.2 Roll-out obligations for BWA SpectrumCategory A, B and C service areasThe licensee to whom the spectrum is assigned shall ensure that at least 50% of the rural SDCAs are covered within five years of the Effective Date using the BWA Spectrum. Coverage of a rural SDCA would mean that at least 90% of the area bounded by the municipal/local body limits should get the required street level coverage.The Effective Date shall be the later of the date when the right to use awarded spectrum commercially commences and the date when the UAS licence or the ISP category A licence, if and as applicable, is granted to the operator ... ..." 50. Mr. Ranjit Kumar Learned Solicitor General further demonstrated that the country has been divided into 3 metro service areas, namely Delhi, Mumbai and Kolkata and 18 Service areas which have been further designated as category A, B and C. SDCA stands for Short Distance Charging Area which comprises typically of one to two tehsils. The country has 2647 SDCAs out of which 2470 SDCAs has been designated as rural SDCAs. All operators including M/s Reliance Jio Infocomm Ltd who were awarded BWA Spectrum in 2010 and whose time period of 5 years for roll-out obligation was completed in 2015, have submitted proof of compliance of roll out obligations by registering with Telecom Enforcement and Resource Monitoring (TERM) Cell of Department of Telecom before the due date in all the 22 service areas. The date of registering the TERM Cell is taken as the date of completion of roll out obligation on successful testing. In this case, testing is in progress and is likely to be completed in next few months. It was, thus, pointed out that less rural coverage is stipulated for 3G spectrum which factor influenced the policy makers to fix SUC at 1% of AGR. 51. Apart from the above, there is one more reason not to interfere with the aforesaid stipulation of SUC. The Government has taken the position that the conditions in the license granted to respondent No. 2 empower the licenser/Government to change the terms of license and, therefore, whenever it is felt necessary and expedient in pubic interest, the percentage of SUC can be increased. However, the matter, for increase of SUC, was even examined after the recommendation of TRAI in the year 2013 that SUC be charged at an average rate instead of slab rate for various spectrum holdings as given in NIA of 2010 and subsequent NIAs of 2012 and January, 2013. The Telecom Commission considered this aspect and debated three options which could be considered for holders of BWA auction in the year 2010, namely: (i)SUC be raised to 3%;(ii)SUC be kept at 1% and reported separately; or(iii)SUC for standalone BWA be kept at 1%, but if combined with spectrum bought in fresh auctions then the charge be the weighted average of acquired spectrum at 3% and BWA at 1%. 52. Before taking a final decision as to which option be resorted to, the Telecom Commission recommended that a legal opinion be sought from the learned Attorney General. Matter was referred to the then Attorney General who opined that SUC charge be retained at 1% for BWA operators and on that basis, final decision in this behalf was taken. It is further pointed out that on the issue of revenue segregation, a committee had been formed which has submitted its report. The report is under consideration and decision on the report is likely in two months. After considering the report of the committee on the revenue segregation, appropriate action will be taken whether separate revenue reporting to continue or not or an increase in SUC is required for the proper conduct of telegraph as provided in the License Agreement. The decision on the report is expected in two months. In view of the aforesaid developments, for the time being, we leave the matter to the Government to take an appropriate decision in this behalf. | 0[ds]28. This submission lacks substance. During the course of arguments, the learned Solicitor General successfully demonstrated that what was auctioned in 2010 was spectrum, namely, 3G spectrum and BWA spectrum. Insofar as 3G spectrum auction is concerned, it was in blocks of 5 MHz i.e. each block of 2 x 5 MHz whereas BWA auction was in blocks of 20 MHz. The spectrum, therefore, was of different forms and thus, issuance of license would be different from spectrum. Moreover, NIA dated 25.02.2010 itself provided the eligibility conditions for an entity who could bid for BWA spectrum and further stipulation in this behalf was specifically stated aswe have already dealt with this aspect of the argument, we are addressing the issue now in the context of frontal attack made on the fixation of fee of Rs.1,658 crores which is charged from respondent no. 2 while allowing the migration from UAS to UL.In the first instances, we may observe that once the policy decision of the Government allowing migration from BWA spectrum to UL is found to be justified in the circumstances already noted above, the argument of the petitioner predicated on the judgment of this Court in 2G2 case does not hold good. Even otherwise the decision in the said case is based on altogether different backdrop. Judgment in the said case would reveal that in 2001, in order to increase competition from then existing two private players plus one PSU player per telecom circle, the Government introduced the 4th telecom operator in each circle. At this time, there was an auction conducted for grant of licenses and this license carried with it 4.4 + 4.4 MHz to start up spectrum and an assurance that further spectrum availability would be given to the licenses subject to availability (by 2010 the TRAI had suggested the grant of a minimum spectrum of 6.2 MHZ to each licensee as contracted spectrum). The Government had decided in 2001 when bids were invited for the 4th license that all future grants should be on market price. However, in a departure from this even in year 2007-08 the then Telecom Minister (following certain processes which was found to be flawed) invited applications for license based on a pre-determined license fee. This license fees was the same as the fee that was paid in 2001 by those who applied for the 4th telecom license. This Court found that the manner in which this decision had been arrived at was flawed and smacked of arbitrariness. It was also held that this spectrum is an extremely valuable natural resource and must only be made available at market price. The Court found that the license itself had no value, in that the real value was that of the spectrum.On the other hand, insofar as present case is concerned, auction of 3G spectrum as well as BWL spectrum held in 2010 was not challenged by anybody and no fault has even been found in the same. It is the spectrum which a vital resource and that was duly auctioned. The decision now taken, which is the subject matter of controversy in the present case, pertains to license, namely, switching over from UASL to UL, validity whereof has already beenBidders in the BWA Auction that currently hold an ISP-category B licence shall be required to migrate to an ISP-category A licence, by paying the applicable fees/charges for migration, before they are awarded the BWA Spectrum. The DoT guidelines stipulate that a UAS license or an ISP licence can only be awarded to an Indian Company. Hence, any foreign applicants will need to form, or acquire, an Indian company, to obtain a UAS licence or an ISP-category A licence. However, they are allowed to participate in the Auctions directly and apply for or acquire a licence subsequently through an Indian company, where they hold at least 26% equitycan only be offered subject to the terms and conditions of the licence obtained by the operator. Award of spectrum does not confer a right to provide any telecom services, and these are governed by the terms and conditions of the licence obtained by the operator.It becomes apparent from the above that the spectrum was different from license inasmuch as award of spectrum did not confer a right to provide any telecom services. Insofar as providing of telecom services are concerned, these were to be governed by the terms and conditions of the license obtained by the operator. The learned Solicitor General also handed over a comparative chart of varying points of view of the different Departments when the matter regarding migration from UASL to UL regime was being discussed and contemplated. A perusal thereof would show that there was a threadbare discussion on the issue wherein pros and cons of migration of telecom licenses to UL regime were discussed; various apprehensions expressed were considered; and ultimately consensus emerged for switching over to this regime. The discussion reveals that the Committee of the DoT in its comments proceeded on the premise that the BWA spectrum could not be used for any other purpose other than providing internet services. The other departments did not share this view. It was ultimately found that the view of the Committee was contrary to the plain language of the Notice Inviting Applications and specifically Q&R which was published by the DoT itself for the purpose of the auction. Difference of point of view of different departments shows the process of institutional decision making.The aforesaid discussion leads us to irresistible conclusion that decision of the Government permitting migration of telecom licenses to UL regime is valid, legal and without any blemish.Much is said on the veracity of CAG draft report by respondent no. 1 as well as respondent no. 2 in their attempt to show that the very basis of making calculation of alleged undue advantage of Rs.22,842 crores (in the draft report) or Rs.3,367.29 crores (in the final report). However, having regard to the aforesaid discussion, it may not be necessary to delve into this aspect in much greater details. It would be suffice to point out that the basic error committed by CAG was to compare 3G and BWA (4G) spectrum which mistake was realised in preparing the final report. It appears that these calculations are made by taking migration fee of Rs.1,658 crores which were prevalent in the year 2001 and on that basis it arrived at a figure of Rs.5025.29 crores which, according to CAG, should have been fixed. As respondent no. 2 paid a fee of Rs.1,658.57 crores, according to the CAG it has resulted in the loss of Rs.3,367.29 crores. However, the aforesaid assumption loses sight of the fundamental aspect, namely, in 2001 spectrum and license were unified which was not the position in the year 2010 when the two were segregated. It is stated at the cost of repetition that insofar as auction of BWA spectrum is concerned the same was auctioned at a price of Rs.12847.77 crores which is the most material aspect and has been totally glossed over. We, thus, do not find any error in the action of the Government in allowing the migration from UASL to UL by making respondent no. 2 to pay a sum of Rs.1,658 crores in this behalf.On going through the records, we find that the decision, namely, SUC be fixed at 1% AGR was based on relevant considerations. Not only TRAI had recommended the aforesaid charge to be fixed, there was an in depth examination of this recommendation of the TRAI by Government before accepting the same. Furthermore, it is also pertinent to note that on the basis of aforesaid decision, specific provisions were incorporated in the NIA for SUC for BWA spectrum.Apart from the above, there is one more reason not to interfere with the aforesaid stipulation of SUC. The Government has taken the position that the conditions in the license granted to respondent No. 2 empower the licenser/Government to change the terms of license and, therefore, whenever it is felt necessary and expedient in pubic interest, the percentage of SUC can be increased. However, the matter, for increase of SUC, was even examined after the recommendation of TRAI in the year 2013 that SUC be charged at an average rate instead of slab rate for various spectrum holdings as given in NIA of 2010 and subsequent NIAs of 2012 and January, 2013. The Telecom Commission considered this aspect and debated three options which could be considered for holders of BWA auction in the year 2010,be raised tobe kept at 1% and reported separately;for standalone BWA be kept at 1%, but if combined with spectrum bought in fresh auctions then the charge be the weighted average of acquired spectrum at 3% and BWA at 1%.Before taking a final decision as to which option be resorted to, the Telecom Commission recommended that a legal opinion be sought from the learned Attorney General. Matter was referred to the then Attorney General who opined that SUC charge be retained at 1% for BWA operators and on that basis, final decision in this behalf was taken. It is further pointed out that on the issue of revenue segregation, a committee had been formed which has submitted its report. The report is under consideration and decision on the report is likely in two months. After considering the report of the committee on the revenue segregation, appropriate action will be taken whether separate revenue reporting to continue or not or an increase in SUC is required for the proper conduct of telegraph as provided in the License Agreement. The decision on the report is expected in two months. In view of the aforesaid developments, for the time being, we leave the matter to the Government to take an appropriate decision in this | 0 | 13,014 | 1,777 | ### 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:
were a lot of deliberations in the Department, consultations were held with other Ministries i.e., Department of Economic Affairs, Department of Industrial Promotion and Policy on the various issues relating of auction of 3G and BWA Spectrum. The submission is that all aspects, relevant to the issue were thoroughly examined and deliberated upon. It was noted that since BWA spectrum will be used for rural development, the SUC is kept at 1% of AGR. Further, it was also noted that since spectrum is being auctioned and the price discovery is through a market mechanism, the bidders will factor in the annual charges in their bids. Therefore, keeping BWA annual spectrum charge at 1% will have no adverse revenue implications. The aforesaid is the rationale given for fixation of 1% of AGR as SUC. 48. On going through the records, we find that the decision, namely, SUC be fixed at 1% AGR was based on relevant considerations. Not only TRAI had recommended the aforesaid charge to be fixed, there was an in depth examination of this recommendation of the TRAI by Government before accepting the same. Furthermore, it is also pertinent to note that on the basis of aforesaid decision, specific provisions were incorporated in the NIA for SUC for BWA spectrum. Clause 3.5 of the NIA, in this behalf, is as under: "3.5 Spectrum usage chargesLicensees using BWA Spectrum need to pay 1% of AGR from services using this spectrum as annual spectrum charge irrespective of the licence held by them. Such revenue would be required to be reported separately." 49. The aforesaid discussion, thus, demonstrates that the main consideration that prevailed with the Government in keeping the SUC at 1% of AGR was that BWA spectrum was to be used for rural development. It also needs to be highlighted that in line with the objective of rural development, more rural oriented roll out obligations for BWA spectrum in category A, B and C service areas, were prescribed, as can seen from the following clauses: "3.4.2 Roll-out obligations for BWA SpectrumCategory A, B and C service areasThe licensee to whom the spectrum is assigned shall ensure that at least 50% of the rural SDCAs are covered within five years of the Effective Date using the BWA Spectrum. Coverage of a rural SDCA would mean that at least 90% of the area bounded by the municipal/local body limits should get the required street level coverage.The Effective Date shall be the later of the date when the right to use awarded spectrum commercially commences and the date when the UAS licence or the ISP category A licence, if and as applicable, is granted to the operator ... ..." 50. Mr. Ranjit Kumar Learned Solicitor General further demonstrated that the country has been divided into 3 metro service areas, namely Delhi, Mumbai and Kolkata and 18 Service areas which have been further designated as category A, B and C. SDCA stands for Short Distance Charging Area which comprises typically of one to two tehsils. The country has 2647 SDCAs out of which 2470 SDCAs has been designated as rural SDCAs. All operators including M/s Reliance Jio Infocomm Ltd who were awarded BWA Spectrum in 2010 and whose time period of 5 years for roll-out obligation was completed in 2015, have submitted proof of compliance of roll out obligations by registering with Telecom Enforcement and Resource Monitoring (TERM) Cell of Department of Telecom before the due date in all the 22 service areas. The date of registering the TERM Cell is taken as the date of completion of roll out obligation on successful testing. In this case, testing is in progress and is likely to be completed in next few months. It was, thus, pointed out that less rural coverage is stipulated for 3G spectrum which factor influenced the policy makers to fix SUC at 1% of AGR. 51. Apart from the above, there is one more reason not to interfere with the aforesaid stipulation of SUC. The Government has taken the position that the conditions in the license granted to respondent No. 2 empower the licenser/Government to change the terms of license and, therefore, whenever it is felt necessary and expedient in pubic interest, the percentage of SUC can be increased. However, the matter, for increase of SUC, was even examined after the recommendation of TRAI in the year 2013 that SUC be charged at an average rate instead of slab rate for various spectrum holdings as given in NIA of 2010 and subsequent NIAs of 2012 and January, 2013. The Telecom Commission considered this aspect and debated three options which could be considered for holders of BWA auction in the year 2010, namely: (i)SUC be raised to 3%;(ii)SUC be kept at 1% and reported separately; or(iii)SUC for standalone BWA be kept at 1%, but if combined with spectrum bought in fresh auctions then the charge be the weighted average of acquired spectrum at 3% and BWA at 1%. 52. Before taking a final decision as to which option be resorted to, the Telecom Commission recommended that a legal opinion be sought from the learned Attorney General. Matter was referred to the then Attorney General who opined that SUC charge be retained at 1% for BWA operators and on that basis, final decision in this behalf was taken. It is further pointed out that on the issue of revenue segregation, a committee had been formed which has submitted its report. The report is under consideration and decision on the report is likely in two months. After considering the report of the committee on the revenue segregation, appropriate action will be taken whether separate revenue reporting to continue or not or an increase in SUC is required for the proper conduct of telegraph as provided in the License Agreement. The decision on the report is expected in two months. In view of the aforesaid developments, for the time being, we leave the matter to the Government to take an appropriate decision in this behalf.
### Response:
0
### Explanation:
a licence subsequently through an Indian company, where they hold at least 26% equitycan only be offered subject to the terms and conditions of the licence obtained by the operator. Award of spectrum does not confer a right to provide any telecom services, and these are governed by the terms and conditions of the licence obtained by the operator.It becomes apparent from the above that the spectrum was different from license inasmuch as award of spectrum did not confer a right to provide any telecom services. Insofar as providing of telecom services are concerned, these were to be governed by the terms and conditions of the license obtained by the operator. The learned Solicitor General also handed over a comparative chart of varying points of view of the different Departments when the matter regarding migration from UASL to UL regime was being discussed and contemplated. A perusal thereof would show that there was a threadbare discussion on the issue wherein pros and cons of migration of telecom licenses to UL regime were discussed; various apprehensions expressed were considered; and ultimately consensus emerged for switching over to this regime. The discussion reveals that the Committee of the DoT in its comments proceeded on the premise that the BWA spectrum could not be used for any other purpose other than providing internet services. The other departments did not share this view. It was ultimately found that the view of the Committee was contrary to the plain language of the Notice Inviting Applications and specifically Q&R which was published by the DoT itself for the purpose of the auction. Difference of point of view of different departments shows the process of institutional decision making.The aforesaid discussion leads us to irresistible conclusion that decision of the Government permitting migration of telecom licenses to UL regime is valid, legal and without any blemish.Much is said on the veracity of CAG draft report by respondent no. 1 as well as respondent no. 2 in their attempt to show that the very basis of making calculation of alleged undue advantage of Rs.22,842 crores (in the draft report) or Rs.3,367.29 crores (in the final report). However, having regard to the aforesaid discussion, it may not be necessary to delve into this aspect in much greater details. It would be suffice to point out that the basic error committed by CAG was to compare 3G and BWA (4G) spectrum which mistake was realised in preparing the final report. It appears that these calculations are made by taking migration fee of Rs.1,658 crores which were prevalent in the year 2001 and on that basis it arrived at a figure of Rs.5025.29 crores which, according to CAG, should have been fixed. As respondent no. 2 paid a fee of Rs.1,658.57 crores, according to the CAG it has resulted in the loss of Rs.3,367.29 crores. However, the aforesaid assumption loses sight of the fundamental aspect, namely, in 2001 spectrum and license were unified which was not the position in the year 2010 when the two were segregated. It is stated at the cost of repetition that insofar as auction of BWA spectrum is concerned the same was auctioned at a price of Rs.12847.77 crores which is the most material aspect and has been totally glossed over. We, thus, do not find any error in the action of the Government in allowing the migration from UASL to UL by making respondent no. 2 to pay a sum of Rs.1,658 crores in this behalf.On going through the records, we find that the decision, namely, SUC be fixed at 1% AGR was based on relevant considerations. Not only TRAI had recommended the aforesaid charge to be fixed, there was an in depth examination of this recommendation of the TRAI by Government before accepting the same. Furthermore, it is also pertinent to note that on the basis of aforesaid decision, specific provisions were incorporated in the NIA for SUC for BWA spectrum.Apart from the above, there is one more reason not to interfere with the aforesaid stipulation of SUC. The Government has taken the position that the conditions in the license granted to respondent No. 2 empower the licenser/Government to change the terms of license and, therefore, whenever it is felt necessary and expedient in pubic interest, the percentage of SUC can be increased. However, the matter, for increase of SUC, was even examined after the recommendation of TRAI in the year 2013 that SUC be charged at an average rate instead of slab rate for various spectrum holdings as given in NIA of 2010 and subsequent NIAs of 2012 and January, 2013. The Telecom Commission considered this aspect and debated three options which could be considered for holders of BWA auction in the year 2010,be raised tobe kept at 1% and reported separately;for standalone BWA be kept at 1%, but if combined with spectrum bought in fresh auctions then the charge be the weighted average of acquired spectrum at 3% and BWA at 1%.Before taking a final decision as to which option be resorted to, the Telecom Commission recommended that a legal opinion be sought from the learned Attorney General. Matter was referred to the then Attorney General who opined that SUC charge be retained at 1% for BWA operators and on that basis, final decision in this behalf was taken. It is further pointed out that on the issue of revenue segregation, a committee had been formed which has submitted its report. The report is under consideration and decision on the report is likely in two months. After considering the report of the committee on the revenue segregation, appropriate action will be taken whether separate revenue reporting to continue or not or an increase in SUC is required for the proper conduct of telegraph as provided in the License Agreement. The decision on the report is expected in two months. In view of the aforesaid developments, for the time being, we leave the matter to the Government to take an appropriate decision in this
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Sumitomo Heavy Industries Ltd Vs. Ongc Ltd. & Ors | proceed before the sole arbitrator appointed by the other party, and whether the authority of an arbitrator can be revoked. The law will also determine what law the arbitrators are to apply, and whether they are expected or allowed to decide ex aequo et bono or as amiables compositeurs, and, if not, whether the parties can gave them this power or impose on them this duty. That law will also determine the procedural powers and duties of the arbitrators, e.g. whether they must hear oral evidence (but not their jurisdiction to decide the dispute, which is governed by the arbitration agreement and the law applicable to it) or whether the arbitrators have been guilty of misconduct. It will also determine what judicial remedies are available to a party who wishes to apply for security for costs or for discovery or who wishes to challenge the award once it has been rendered and before it is sought to enforce it abroad, and the circumstances in which judicial remedies may be excluded." * (Emphasis supplied.) 12. Mr. Sorabjee submitted, relying upon the proposition that the procedural law would determine what judicial remedies were available to a party "who wishes to challenge the award once it has been rendered and before it is sought to enforce it abroad", that the court that administered the curial law of the arbitration had the jurisdiction to entertain a challenge to the award and, therefore, the jurisdiction to receive it. The footnote relative to the above proposition (at pave 583) reads thus: "Whitworth Street Estates (Manchester) Ltd. v. James Miller &Partners Ltd. (English remedies not available in Scots arbitration)." 13. Mr. Banerjee submitted, and it seems to us, correctly, that the case of James Miller &Partners Vs. Whitworth Street Estates, does not bear out the proposition. The facts of the case, shortly put, were these: A contract was entered into between an English company, Whitworth, and a Scottish company, James Miller. The Scottish company was to carry out work at the English companys premises in Scotland. The contract did not provide for the place of arbitration or its procedure. Disputes arose between the parties and were referred to arbitration. The arbitration was held in Scotland, in accordance with Scottish law. The English company asked the arbitrator to state his award in the form of a special case for the decision of the English courts. The arbitrator refused to do so on the ground that the arbitration was a Scottish arbitration, and he issued his final award. The issue was whether the arbitrator should be required to state his award in the form of a special case. The case was, therefore, concerned with the question of which law governed the proceedings before the arbitrator and not with the question of which law governed proceedings to set an award.We think that our conclusion that the curial law does not apply to the filing of an award in court must, accordingly, hold good. We find support for the conclusion in the extracts from Mustill and Boyd which we have quoted earlier. Where the law governing the conduct of the reference is different from the law governing the underlying arbitration agreement, the court looks to the arbitration agreement to see if the dispute is arbitrable, then to the curial law to see how the reference should be conducted, "and then returns to the first law in order to give effect to the resulting award". 14. The law which would apply to the filing of the award, to its enforcement and to its setting aside would be the law governing the agreement to arbitrate and the performance of that agreement. Having regard to the clear terms of Clause 17 of the contract between the appellant and the first respondent, we are in no doubt that the law governing the contract and the law governing the rights and obligations of the parties arising from their agreement to arbitrate, and, in particular, their obligations to submit disputes to arbitration and to honour the award, are governed by the law of India; nor is there any dispute in this behalf. Section 47 of the Indian Arbitration Act, 1940, reads thus: "47. Act to apply to all arbitrations. - Subject to the provisions of Section 46, and save in so far as is otherwise provided by any law for the time being in force, the provisions of this Act shall apply to all arbitrations and to all proceedings thereunder" *"Provided that an arbitration award otherwise obtained may with the consent of all the parties interested be taken into consideration as a compromise or adjustment of a suit by any Court before which the suit is pending." 15. The only other statute which is required to be considered in the context of the provisions of Section 47 of the 1940 Act is the Foreign Awards (Recognition and Enforcement) Act, 1961. For the purposes of determining whether the provision of the 1940 Act are subject to the provisions of the 1961 Act, Section 9 is relevant. It reads thus: "9. Saving - Nothing in this Act shall-(a) prejudice any rights which any person would have had of enforcing in India of any award or of availing himself in India of any award if this Act had not been passed, or(b) apply to any award made on an arbitration agreement governed by the law of India." * 16. By reason of Section 9(b), the 1961 Act does not apply to any award made on an arbitration agreement governed by the law of India. The 1961 Act, therefore, does not apply to the arbitration agreement between the appellant and the first respondent. The 1940 Act, applies to it and, by reason of Section 14(2) thereof, the courts in India are entitled to receive the award made by the second respondent. We must add in the interests of completeness that is not the case of the appellant that the High Court at Bombay lacked the territorial jurisdiction to do so. 17. | 0[ds]The conclusion that we reach is that the curial law operates during the continuance of the proceeding before the arbitrator to govern procedure and conduct thereof. The courts administering the curial law have the authority to entertain applications by parties to arbitrations being conducted within their jurisdiction for the purpose of ensuring that the procedure that is adopted in the proceedings before the arbitrator conforms to the requirements of the curial law and for reliefs incidental thereto. Such authority of the courts administering the curial law ceases when the proceedings before the arbitrator are concluded.The proceedings before the arbitrator commence when he enters upon the reference and conclude with the making of the award. As the work by Mustill and Boyd aforementioned puts, it with the making of a valid award the arbitrators authority, powers and duties in the reference come to an end and he is "functus officio" (page 404). The arbitrator is not obliged by law to file his award in court but he may be asked by the party seeking to enforce the award to do so. The need to file an award in court arises only if it is required to be enforced, and the need to challenge it arises if it being enforced. The enforcement process is subsequent to and independent of the proceedings before the arbitrator. It is not governed by the curial or procedural law that governed the procedure that the arbitrator followed in the conduct of thecase was, therefore, concerned with the question of which law governed the proceedings before the arbitrator and not with the question of which law governed proceedings to set an award.We think that our conclusion that the curial law does not apply to the filing of an award in court must, accordingly, hold good. We find support for the conclusion in the extracts from Mustill and Boyd which we have quoted earlier. Where the law governing the conduct of the reference is different from the law governing the underlying arbitration agreement, the court looks to the arbitration agreement to see if the dispute is arbitrable, then to the curial law to see how the reference should be conducted, "and then returns to the first law in order to give effect to the resultinglaw which would apply to the filing of the award, to its enforcement and to its setting aside would be the law governing the agreement to arbitrate and the performance of that agreement. Having regard to the clear terms of Clause 17 of the contract between the appellant and the first respondent, we are in no doubt that the law governing the contract and the law governing the rights and obligations of the parties arising from their agreement to arbitrate, and, in particular, their obligations to submit disputes to arbitration and to honour the award, are governed by the law of India; nor is there any dispute in thisonly other statute which is required to be considered in the context of the provisions of Section 47 of the 1940 Act isthe Foreign Awards (Recognition and Enforcement) Act, 1961. For the purposes of determining whether the provision of the 1940 Act are subject to the provisions of the 1961 Act, Section 9 is relevant. It readsng in this Actprejudice any rights which any person would have had of enforcing in India of any award or of availing himself in India of any award if this Act had not been passed, or(b) apply to any award made on an arbitration agreement governed by the law of India."reason of Section 9(b), the 1961 Act does not apply to any award made on an arbitration agreement governed by the law of India. The 1961 Act, therefore, does not apply to the arbitration agreement between the appellant and the first respondent. The 1940 Act, applies to it and, by reason of Section 14(2) thereof, the courts in India are entitled to receive the award made by the second respondent. We must add in the interests of completeness that is not the case of the appellant that the High Court at Bombay lacked the territorial jurisdiction to do so. | 0 | 3,874 | 753 | ### 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:
proceed before the sole arbitrator appointed by the other party, and whether the authority of an arbitrator can be revoked. The law will also determine what law the arbitrators are to apply, and whether they are expected or allowed to decide ex aequo et bono or as amiables compositeurs, and, if not, whether the parties can gave them this power or impose on them this duty. That law will also determine the procedural powers and duties of the arbitrators, e.g. whether they must hear oral evidence (but not their jurisdiction to decide the dispute, which is governed by the arbitration agreement and the law applicable to it) or whether the arbitrators have been guilty of misconduct. It will also determine what judicial remedies are available to a party who wishes to apply for security for costs or for discovery or who wishes to challenge the award once it has been rendered and before it is sought to enforce it abroad, and the circumstances in which judicial remedies may be excluded." * (Emphasis supplied.) 12. Mr. Sorabjee submitted, relying upon the proposition that the procedural law would determine what judicial remedies were available to a party "who wishes to challenge the award once it has been rendered and before it is sought to enforce it abroad", that the court that administered the curial law of the arbitration had the jurisdiction to entertain a challenge to the award and, therefore, the jurisdiction to receive it. The footnote relative to the above proposition (at pave 583) reads thus: "Whitworth Street Estates (Manchester) Ltd. v. James Miller &Partners Ltd. (English remedies not available in Scots arbitration)." 13. Mr. Banerjee submitted, and it seems to us, correctly, that the case of James Miller &Partners Vs. Whitworth Street Estates, does not bear out the proposition. The facts of the case, shortly put, were these: A contract was entered into between an English company, Whitworth, and a Scottish company, James Miller. The Scottish company was to carry out work at the English companys premises in Scotland. The contract did not provide for the place of arbitration or its procedure. Disputes arose between the parties and were referred to arbitration. The arbitration was held in Scotland, in accordance with Scottish law. The English company asked the arbitrator to state his award in the form of a special case for the decision of the English courts. The arbitrator refused to do so on the ground that the arbitration was a Scottish arbitration, and he issued his final award. The issue was whether the arbitrator should be required to state his award in the form of a special case. The case was, therefore, concerned with the question of which law governed the proceedings before the arbitrator and not with the question of which law governed proceedings to set an award.We think that our conclusion that the curial law does not apply to the filing of an award in court must, accordingly, hold good. We find support for the conclusion in the extracts from Mustill and Boyd which we have quoted earlier. Where the law governing the conduct of the reference is different from the law governing the underlying arbitration agreement, the court looks to the arbitration agreement to see if the dispute is arbitrable, then to the curial law to see how the reference should be conducted, "and then returns to the first law in order to give effect to the resulting award". 14. The law which would apply to the filing of the award, to its enforcement and to its setting aside would be the law governing the agreement to arbitrate and the performance of that agreement. Having regard to the clear terms of Clause 17 of the contract between the appellant and the first respondent, we are in no doubt that the law governing the contract and the law governing the rights and obligations of the parties arising from their agreement to arbitrate, and, in particular, their obligations to submit disputes to arbitration and to honour the award, are governed by the law of India; nor is there any dispute in this behalf. Section 47 of the Indian Arbitration Act, 1940, reads thus: "47. Act to apply to all arbitrations. - Subject to the provisions of Section 46, and save in so far as is otherwise provided by any law for the time being in force, the provisions of this Act shall apply to all arbitrations and to all proceedings thereunder" *"Provided that an arbitration award otherwise obtained may with the consent of all the parties interested be taken into consideration as a compromise or adjustment of a suit by any Court before which the suit is pending." 15. The only other statute which is required to be considered in the context of the provisions of Section 47 of the 1940 Act is the Foreign Awards (Recognition and Enforcement) Act, 1961. For the purposes of determining whether the provision of the 1940 Act are subject to the provisions of the 1961 Act, Section 9 is relevant. It reads thus: "9. Saving - Nothing in this Act shall-(a) prejudice any rights which any person would have had of enforcing in India of any award or of availing himself in India of any award if this Act had not been passed, or(b) apply to any award made on an arbitration agreement governed by the law of India." * 16. By reason of Section 9(b), the 1961 Act does not apply to any award made on an arbitration agreement governed by the law of India. The 1961 Act, therefore, does not apply to the arbitration agreement between the appellant and the first respondent. The 1940 Act, applies to it and, by reason of Section 14(2) thereof, the courts in India are entitled to receive the award made by the second respondent. We must add in the interests of completeness that is not the case of the appellant that the High Court at Bombay lacked the territorial jurisdiction to do so. 17.
### Response:
0
### Explanation:
The conclusion that we reach is that the curial law operates during the continuance of the proceeding before the arbitrator to govern procedure and conduct thereof. The courts administering the curial law have the authority to entertain applications by parties to arbitrations being conducted within their jurisdiction for the purpose of ensuring that the procedure that is adopted in the proceedings before the arbitrator conforms to the requirements of the curial law and for reliefs incidental thereto. Such authority of the courts administering the curial law ceases when the proceedings before the arbitrator are concluded.The proceedings before the arbitrator commence when he enters upon the reference and conclude with the making of the award. As the work by Mustill and Boyd aforementioned puts, it with the making of a valid award the arbitrators authority, powers and duties in the reference come to an end and he is "functus officio" (page 404). The arbitrator is not obliged by law to file his award in court but he may be asked by the party seeking to enforce the award to do so. The need to file an award in court arises only if it is required to be enforced, and the need to challenge it arises if it being enforced. The enforcement process is subsequent to and independent of the proceedings before the arbitrator. It is not governed by the curial or procedural law that governed the procedure that the arbitrator followed in the conduct of thecase was, therefore, concerned with the question of which law governed the proceedings before the arbitrator and not with the question of which law governed proceedings to set an award.We think that our conclusion that the curial law does not apply to the filing of an award in court must, accordingly, hold good. We find support for the conclusion in the extracts from Mustill and Boyd which we have quoted earlier. Where the law governing the conduct of the reference is different from the law governing the underlying arbitration agreement, the court looks to the arbitration agreement to see if the dispute is arbitrable, then to the curial law to see how the reference should be conducted, "and then returns to the first law in order to give effect to the resultinglaw which would apply to the filing of the award, to its enforcement and to its setting aside would be the law governing the agreement to arbitrate and the performance of that agreement. Having regard to the clear terms of Clause 17 of the contract between the appellant and the first respondent, we are in no doubt that the law governing the contract and the law governing the rights and obligations of the parties arising from their agreement to arbitrate, and, in particular, their obligations to submit disputes to arbitration and to honour the award, are governed by the law of India; nor is there any dispute in thisonly other statute which is required to be considered in the context of the provisions of Section 47 of the 1940 Act isthe Foreign Awards (Recognition and Enforcement) Act, 1961. For the purposes of determining whether the provision of the 1940 Act are subject to the provisions of the 1961 Act, Section 9 is relevant. It readsng in this Actprejudice any rights which any person would have had of enforcing in India of any award or of availing himself in India of any award if this Act had not been passed, or(b) apply to any award made on an arbitration agreement governed by the law of India."reason of Section 9(b), the 1961 Act does not apply to any award made on an arbitration agreement governed by the law of India. The 1961 Act, therefore, does not apply to the arbitration agreement between the appellant and the first respondent. The 1940 Act, applies to it and, by reason of Section 14(2) thereof, the courts in India are entitled to receive the award made by the second respondent. We must add in the interests of completeness that is not the case of the appellant that the High Court at Bombay lacked the territorial jurisdiction to do so.
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Dr. Sathy M. Pillay & Another Vs. S. Sharma & Others | 1. These appeals, by special leave, are directed against the judgment and order, dated 10.08.2007, passed by the National Consumer Disputes Redressal Commission, New Delhi (hereinafter "NCDRC" for brevity) in FA No. 174 of 2001 and 441 of 2002, whereby the NCDRC, while confirming the findings of the Kerala State Consumer Dispute Redressal Commission, Thiruvananthapuram, enhanced the compensation from Rs. 3,00,000/- to Rs. 6,00,000/- with 10% interest from three months of the order of the State Commission till the date of payment and additionally granted Rs. 50,000/- towards cost of litigation.2. It would be necessary to briefly state the facts for the disposal of this case. One Chandrakala (deceased), aged about 25 years, was the wife of the first complainant i.e. respondent No. 1 herein. She was admitted in the hospital of the appellant herein for encirclement of the cervix so as to prevent future miscarriage. The operation was carried out on 23.05.1996. As a pre-operation procedure, appellant no. 2, who is a skin specialist and has undergone training for administering anesthesia in Medical College Thiruvananthapuram, tried to give spinal anesthesia. However, it is to be noted that the surgery was carried out after giving local anesthesia. Around 6 p.m., after the operation, the deceased complained to one Dr. Narayanan that she was suffering unbearable pain due to the suture. At midnight, complainants heard loud cries of Chandrakala. It is to be noted that even on the second day, the parents and the husband were not allowed to see her. Thereafter Dr. Ajay Kumar, family doctor of the respondents herein, was not permitted to see her. Ultimately on 25.05.1996 at about 11.30 A.M. she expired. Thereafter, the post mortem was conducted. In the post mortem report, the doctor has opined as under:3. Based on the post-mortem finding and results of Laboratory examination, I furnish my final opinion as follows:"Postmortem findings are consistent with death due to shock following spinal anesthesia."4. The respondent-complainant filed a petition before the State Commission seeking compensation of Rs. 15,00,000/- for the death of Chandrakala due to the medical negligence of the appellants. The State Commission on appreciation of evidence, came to the conclusion that there was a medical negligence on the part of the appellant and awarded Rs. 3,00,000/- as compensation for the same. Aggrieved by the aforesaid order of the State Commission, the complainant filed first appeal before NCDRC. It is to be noted that NCDRC, by a well considered judgment, enhanced the compensation from Rs. 3,00,000/- to Rs. 6,00,000/- with 10% interest. Aggrieved by the order of NCDRC, appellants are in appeal before this Court.5. Learned counsel for the appellant mainly contended that there is no medical negligence on the part of the appellant herein and an excessive reliance on the post mortem certificate, issued by the Government hospital, is not proper as the same is contrary to the medical records. Appellant emphasized the evidence of PW4, wherein it is specifically stated in the cross examination that an attempt to inject spinal anesthesia was abandoned as Cerebrospinal Fluid [CSF] could not be drawn. Additionally he submits that it is on record that the operation was performed on the basis of local anesthesia, so there can never be a question of death due to shock following spinal anesthesia.6. On the other hand, learned counsel on behalf of the respondents, supported the judgment of NCDRC. He mainly relied on the fact that, but for the operation, spinal anesthesia and medical negligence, there was no reason for the death of Chandrakala.7. We have perused all the documents available on record.8. There is no dispute as to the fact that a young healthy woman of 25 years had died in the hospital without any ailment in the course of a minor surgery. Even according to learned counsel for the appellant, the surgery was smooth and there was no complication arose out of the surgery. It is another admitted fact that, even though she was under the supervision of the appellants, her condition progressively detoriated ultimately leading to her death. Nevertheless it is borne out of the records that appellant no. 2 is not specialized in the administration of anesthesia. Moreover the factual finding, that the death was caused due to shock following spinal anesthesia, being a reasonable inference from the material available on record, has attained finality and remains unshaken by virtue of concurrent findings of the courts below. We are aware of the fact that certain medical experts have testified that the death due to shock following spinal anesthesia could not have happened in the emergent facts. The argument of the appellant, that the death could not have occurred in the manner as suggested in the post mortem report, cannot be accepted, as the consumer forums/courts are at liberty to reject the evidence of the medical expert on scrutinizing and evaluating the relevant evidences and other circumstances in order to adjudicate the appropriate standard of care required in cases of medical negligence arising from administration of anesthesia.9. It is to be noted that no reasons are forth coming, from the appellants, about the cause of the death. Further there is no dispute as to the fact that the appellants had the obligation to care for the deceased, which it has been found to be in dereliction of. Nevertheless incompetence and inexperience of the doctor coupled with the fact that the appellants have failed to handle the crisis, clearly points to the negligence on the part of the appellants.10. We are of the opinion that in facts and circumstances, both the state commission as well as NCDRC, after an elaborate consideration, have reached to a right conclusion that the appellants were negligent and accordingly, compensation was awarded at a reasonable amount of Rs. 6,00,000/-. | 0[ds]8. There is no dispute as to the fact that a young healthy woman of 25 years had died in the hospital without any ailment in the course of a minor surgery. Even according to learned counsel for the appellant, the surgery was smooth and there was no complication arose out of the surgery. It is another admitted fact that, even though she was under the supervision of the appellants, her condition progressively detoriated ultimately leading to her death. Nevertheless it is borne out of the records that appellant no. 2 is not specialized in the administration of anesthesia. Moreover the factual finding, that the death was caused due to shock following spinal anesthesia, being a reasonable inference from the material available on record, has attained finality and remains unshaken by virtue of concurrent findings of the courts below. We are aware of the fact that certain medical experts have testified that the death due to shock following spinal anesthesia could not have happened in the emergent facts. The argument of the appellant, that the death could not have occurred in the manner as suggested in the post mortem report, cannot be accepted, as the consumer forums/courts are at liberty to reject the evidence of the medical expert on scrutinizing and evaluating the relevant evidences and other circumstances in order to adjudicate the appropriate standard of care required in cases of medical negligence arising from administration of anesthesia.9. It is to be noted that no reasons are forth coming, from the appellants, about the cause of the death. Further there is no dispute as to the fact that the appellants had the obligation to care for the deceased, which it has been found to be in dereliction of. Nevertheless incompetence and inexperience of the doctor coupled with the fact that the appellants have failed to handle the crisis, clearly points to the negligence on the part of the appellants.10. We are of the opinion that in facts and circumstances, both the state commission as well as NCDRC, after an elaborate consideration, have reached to a right conclusion that the appellants were negligent and accordingly, compensation was awarded at a reasonable amount of Rs. | 0 | 1,079 | 398 | ### Instruction:
Predict whether the case will result in an affirmative (1) or negative (0) decision for the appeal, and then provide a thorough explanation using key sentences to support your prediction.
### Input:
1. These appeals, by special leave, are directed against the judgment and order, dated 10.08.2007, passed by the National Consumer Disputes Redressal Commission, New Delhi (hereinafter "NCDRC" for brevity) in FA No. 174 of 2001 and 441 of 2002, whereby the NCDRC, while confirming the findings of the Kerala State Consumer Dispute Redressal Commission, Thiruvananthapuram, enhanced the compensation from Rs. 3,00,000/- to Rs. 6,00,000/- with 10% interest from three months of the order of the State Commission till the date of payment and additionally granted Rs. 50,000/- towards cost of litigation.2. It would be necessary to briefly state the facts for the disposal of this case. One Chandrakala (deceased), aged about 25 years, was the wife of the first complainant i.e. respondent No. 1 herein. She was admitted in the hospital of the appellant herein for encirclement of the cervix so as to prevent future miscarriage. The operation was carried out on 23.05.1996. As a pre-operation procedure, appellant no. 2, who is a skin specialist and has undergone training for administering anesthesia in Medical College Thiruvananthapuram, tried to give spinal anesthesia. However, it is to be noted that the surgery was carried out after giving local anesthesia. Around 6 p.m., after the operation, the deceased complained to one Dr. Narayanan that she was suffering unbearable pain due to the suture. At midnight, complainants heard loud cries of Chandrakala. It is to be noted that even on the second day, the parents and the husband were not allowed to see her. Thereafter Dr. Ajay Kumar, family doctor of the respondents herein, was not permitted to see her. Ultimately on 25.05.1996 at about 11.30 A.M. she expired. Thereafter, the post mortem was conducted. In the post mortem report, the doctor has opined as under:3. Based on the post-mortem finding and results of Laboratory examination, I furnish my final opinion as follows:"Postmortem findings are consistent with death due to shock following spinal anesthesia."4. The respondent-complainant filed a petition before the State Commission seeking compensation of Rs. 15,00,000/- for the death of Chandrakala due to the medical negligence of the appellants. The State Commission on appreciation of evidence, came to the conclusion that there was a medical negligence on the part of the appellant and awarded Rs. 3,00,000/- as compensation for the same. Aggrieved by the aforesaid order of the State Commission, the complainant filed first appeal before NCDRC. It is to be noted that NCDRC, by a well considered judgment, enhanced the compensation from Rs. 3,00,000/- to Rs. 6,00,000/- with 10% interest. Aggrieved by the order of NCDRC, appellants are in appeal before this Court.5. Learned counsel for the appellant mainly contended that there is no medical negligence on the part of the appellant herein and an excessive reliance on the post mortem certificate, issued by the Government hospital, is not proper as the same is contrary to the medical records. Appellant emphasized the evidence of PW4, wherein it is specifically stated in the cross examination that an attempt to inject spinal anesthesia was abandoned as Cerebrospinal Fluid [CSF] could not be drawn. Additionally he submits that it is on record that the operation was performed on the basis of local anesthesia, so there can never be a question of death due to shock following spinal anesthesia.6. On the other hand, learned counsel on behalf of the respondents, supported the judgment of NCDRC. He mainly relied on the fact that, but for the operation, spinal anesthesia and medical negligence, there was no reason for the death of Chandrakala.7. We have perused all the documents available on record.8. There is no dispute as to the fact that a young healthy woman of 25 years had died in the hospital without any ailment in the course of a minor surgery. Even according to learned counsel for the appellant, the surgery was smooth and there was no complication arose out of the surgery. It is another admitted fact that, even though she was under the supervision of the appellants, her condition progressively detoriated ultimately leading to her death. Nevertheless it is borne out of the records that appellant no. 2 is not specialized in the administration of anesthesia. Moreover the factual finding, that the death was caused due to shock following spinal anesthesia, being a reasonable inference from the material available on record, has attained finality and remains unshaken by virtue of concurrent findings of the courts below. We are aware of the fact that certain medical experts have testified that the death due to shock following spinal anesthesia could not have happened in the emergent facts. The argument of the appellant, that the death could not have occurred in the manner as suggested in the post mortem report, cannot be accepted, as the consumer forums/courts are at liberty to reject the evidence of the medical expert on scrutinizing and evaluating the relevant evidences and other circumstances in order to adjudicate the appropriate standard of care required in cases of medical negligence arising from administration of anesthesia.9. It is to be noted that no reasons are forth coming, from the appellants, about the cause of the death. Further there is no dispute as to the fact that the appellants had the obligation to care for the deceased, which it has been found to be in dereliction of. Nevertheless incompetence and inexperience of the doctor coupled with the fact that the appellants have failed to handle the crisis, clearly points to the negligence on the part of the appellants.10. We are of the opinion that in facts and circumstances, both the state commission as well as NCDRC, after an elaborate consideration, have reached to a right conclusion that the appellants were negligent and accordingly, compensation was awarded at a reasonable amount of Rs. 6,00,000/-.
### Response:
0
### Explanation:
8. There is no dispute as to the fact that a young healthy woman of 25 years had died in the hospital without any ailment in the course of a minor surgery. Even according to learned counsel for the appellant, the surgery was smooth and there was no complication arose out of the surgery. It is another admitted fact that, even though she was under the supervision of the appellants, her condition progressively detoriated ultimately leading to her death. Nevertheless it is borne out of the records that appellant no. 2 is not specialized in the administration of anesthesia. Moreover the factual finding, that the death was caused due to shock following spinal anesthesia, being a reasonable inference from the material available on record, has attained finality and remains unshaken by virtue of concurrent findings of the courts below. We are aware of the fact that certain medical experts have testified that the death due to shock following spinal anesthesia could not have happened in the emergent facts. The argument of the appellant, that the death could not have occurred in the manner as suggested in the post mortem report, cannot be accepted, as the consumer forums/courts are at liberty to reject the evidence of the medical expert on scrutinizing and evaluating the relevant evidences and other circumstances in order to adjudicate the appropriate standard of care required in cases of medical negligence arising from administration of anesthesia.9. It is to be noted that no reasons are forth coming, from the appellants, about the cause of the death. Further there is no dispute as to the fact that the appellants had the obligation to care for the deceased, which it has been found to be in dereliction of. Nevertheless incompetence and inexperience of the doctor coupled with the fact that the appellants have failed to handle the crisis, clearly points to the negligence on the part of the appellants.10. We are of the opinion that in facts and circumstances, both the state commission as well as NCDRC, after an elaborate consideration, have reached to a right conclusion that the appellants were negligent and accordingly, compensation was awarded at a reasonable amount of Rs.
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Rajat Pharmachem Limited Vs. Vidhya Pharmachem Private Limited | placed. As a result therefore, by virtue of recital 5 quoted above, the outstanding amount of Rs.2.5 crore stood payable. Secondly, the respondent has fulfilled all its obligations under the second MOU also dated 7th March, 2011, but has not received any money in respect of those investments. Even the mode of payment expressly agreed to under the MOU was not honoured. Invoices were raised in respect of all these transactions. The invoices have never been disputed. The amounts payable have never been disputed. The respondent also admitted the receipt of a sum of about Rs.2.30 crores and has given credit for the same.9. This brings us to the third MOU, which is dated 4th April, 2011. The same relates to the export orders to Nigeria. The recitals record that the appellant has had a strong presence in Nigeria for more than 17 years. Many of the appellants products were market leaders in Nigeria. The appellant had also registered 150 products with the Nigerian Drug Regulatory Authority in Nigeria. The recitals also record that the respondent was keen to exploit the Nigerian markets and had also started registering its products during the previous years. The respondent had registered and it proposed registering about 150 products in Nigeria. The parties decided to work together to exploit their respective strengths. Recital 7 stipulated that the total profits in the transactions would be shared equally. The operative clauses provided that the respondent would provide full support in sourcing the raw material and ingredients required to manufacture the finished formulations and supply the same to the appellant. The appellant, in turn, was responsible for manufacturing the products. The products were to be exported / sold to the purchasers in Nigeria through the respondent. These orders were, therefore, to be placed on the respondent. The petitioner was to inform the buyers of the same. The MOU concludes as follows :"This MoU has been made to define the broad parameters with in which both parties have decided to work. A detailed agreement shall be drafted to cover the fine points / micro workings of the arrangement."10. The only contention is that the appellant may be entitled to profits under the third MOU and the same can be determined only after the respondent furnishes accounts in respect thereof. The appellant, however, never called upon the respondent to pay any amounts towards its share of the profits under the third MOU. It never raised the issues prior to the petition. We do not wish to express any view about the merits of the summary suit filed by the respondent against the appellant.11. At the cost of repetition, the position as on date is that the previous dues are admitted. The dues under the second MOU dated 7th March, 2011, pertaining to the BCPL contracts have not been received by the appellant. Even after giving credit of the sum of about Rs.2.30 crores, a principal amount of about Rs.3 crores is due and payable by the appellant to the respondent. On the other hand, as far as the third MOU relating to the exports to Nigeria is concerned, the appellants claim to profits is, at least at this stage, doubtful. Indeed, as and when amounts are received from the purchasers, the appellant would be entitled to credit.12. Mr. Joglekar submitted that the third MOU must be read together and must also be implemented together. We will presume that to be so. However, as we mentioned earlier, clause 5 of the recitals to the first MOU dated 7th March, 2011, expressly stated that in the event of any of the business opportunities referred to therein not materializing, the amount of Rs.2.5 crores would be payable. Admittedly, the IDPL order was not placed. Thus, under the express provisions of the MOU, the amount of Rs.2.5 crores is payable in any event. In the circumstances, we see no reason to interfere with the impugned order insofar as it admits the petition.13. We, however, see no justification for the appointment of a provisional liquidator at this stage. The learned Judge has also passed the following order:"8.(c) pending the admission and hearing and final disposal of the petition, a Provisional Liquidator be appointed of the said M/s. Rajat Pharmachem Limited with all powers under the Companies Act I of 1956, including powers to take immediate charge of the affairs, assets and the business of the said Company and to take appropriate steps from disbursement of recoveries effected and of the assets available after liquidation of the said Company to the benefit of creditors including the petitioners."14. An interim order in these terms, in fact, has the effect of winding up the company even before the final winding up order. There may well be cases where the Court may consider it necessary to dispose of the assets even before the final order of winding up is passed. This, however, is not such a case. The impugned order does not indicate any reasons for passing such a drastic order at this stage. In any event, there would be no question of disbursing the recoveries that may be made at this stage.15. The impugned order insofar as it has granted reliefs in terms of prayer (c) of the above petition is, therefore, set aside. It is necessary, however, to direct the respondents to deposit in Court recoveries made pursuant to its transactions with BCPL. This is in view of what we have stated earlier regarding the second MOU dated 7th March, 2011, and the first respondents failure to pay or ensure payment of the amounts due from BCPL to the respondent.16. We appreciate that there are several pending orders, especially with BCPL. However, the respondent is not prevented from fulfilling those orders merely on account of the petition being admitted.17. There is no offer on the part of the appellant to deposit any amount. It is not necessary, therefore, for us to consider an order of deposit as a condition to avoiding the admission of the petition. | 1[ds]10. The only contention is that the appellant may be entitled to profits under the third MOU and the same can be determined only after the respondent furnishes accounts in respect thereof.The appellant, however, never called upon the respondent to pay any amounts towards its share of the profits under the third MOU. It never raised the issues prior to the petition. We do not wish to express any view about the merits of the summary suit filed by the respondent against the appellant.11. At the cost of repetition, the position as on date is that the previous dues are admitted. The dues under the second MOU dated 7th March, 2011, pertaining to the BCPL contracts have not been received by the appellant. Even after giving credit of the sum of about Rs.2.30 crores, a principal amount of about Rs.3 crores is due and payable by the appellant to the respondent. On the other hand, as far as the third MOU relating to the exports to Nigeria is concerned, the appellants claim to profits is, at least at this stage, doubtful. Indeed, as and when amounts are received from the purchasers, the appellant would be entitled to credit.12.Mr. Joglekar submitted that the third MOU must be read together and must also be implemented together.We will presume that to be so. However, as we mentioned earlier, clause 5 of the recitals to the first MOU dated 7th March, 2011, expressly stated that in the event of any of the business opportunities referred to therein not materializing, the amount of Rs.2.5 crores would be payable. Admittedly, the IDPL order was not placed. Thus, under the express provisions of the MOU, the amount of Rs.2.5 crores is payable in any event. In the circumstances, we see no reason to interfere with the impugned order insofar as it admits the petition.13. We, however, see no justification for the appointment of a provisional liquidator at this stage.An interim order in these terms, in fact, has the effect of winding up the company even before the final winding up order. There may well be cases where the Court may consider it necessary to dispose of the assets even before the final order of winding up is passed. This, however, is not such a case. The impugned order does not indicate any reasons for passing such a drastic order at this stage. In any event, there would be no question of disbursing the recoveries that may be made at this stage.15. The impugned order insofar as it has granted reliefs in terms of prayer (c) of the above petition is, therefore, set aside. It is necessary, however, to direct the respondents to deposit in Court recoveries made pursuant to its transactions with BCPL. This is in view of what we have stated earlier regarding the second MOU dated 7th March, 2011, and the first respondents failure to pay or ensure payment of the amounts due from BCPL to the respondent.16. We appreciate that there are several pending orders, especially with BCPL. However, the respondent is not prevented from fulfilling those orders merely on account of the petition being admitted.17. There is no offer on the part of the appellant to deposit any amount. It is not necessary, therefore, for us to consider an order of deposit as a condition to avoiding the admission of the petition. | 1 | 2,016 | 629 | ### Instruction:
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placed. As a result therefore, by virtue of recital 5 quoted above, the outstanding amount of Rs.2.5 crore stood payable. Secondly, the respondent has fulfilled all its obligations under the second MOU also dated 7th March, 2011, but has not received any money in respect of those investments. Even the mode of payment expressly agreed to under the MOU was not honoured. Invoices were raised in respect of all these transactions. The invoices have never been disputed. The amounts payable have never been disputed. The respondent also admitted the receipt of a sum of about Rs.2.30 crores and has given credit for the same.9. This brings us to the third MOU, which is dated 4th April, 2011. The same relates to the export orders to Nigeria. The recitals record that the appellant has had a strong presence in Nigeria for more than 17 years. Many of the appellants products were market leaders in Nigeria. The appellant had also registered 150 products with the Nigerian Drug Regulatory Authority in Nigeria. The recitals also record that the respondent was keen to exploit the Nigerian markets and had also started registering its products during the previous years. The respondent had registered and it proposed registering about 150 products in Nigeria. The parties decided to work together to exploit their respective strengths. Recital 7 stipulated that the total profits in the transactions would be shared equally. The operative clauses provided that the respondent would provide full support in sourcing the raw material and ingredients required to manufacture the finished formulations and supply the same to the appellant. The appellant, in turn, was responsible for manufacturing the products. The products were to be exported / sold to the purchasers in Nigeria through the respondent. These orders were, therefore, to be placed on the respondent. The petitioner was to inform the buyers of the same. The MOU concludes as follows :"This MoU has been made to define the broad parameters with in which both parties have decided to work. A detailed agreement shall be drafted to cover the fine points / micro workings of the arrangement."10. The only contention is that the appellant may be entitled to profits under the third MOU and the same can be determined only after the respondent furnishes accounts in respect thereof. The appellant, however, never called upon the respondent to pay any amounts towards its share of the profits under the third MOU. It never raised the issues prior to the petition. We do not wish to express any view about the merits of the summary suit filed by the respondent against the appellant.11. At the cost of repetition, the position as on date is that the previous dues are admitted. The dues under the second MOU dated 7th March, 2011, pertaining to the BCPL contracts have not been received by the appellant. Even after giving credit of the sum of about Rs.2.30 crores, a principal amount of about Rs.3 crores is due and payable by the appellant to the respondent. On the other hand, as far as the third MOU relating to the exports to Nigeria is concerned, the appellants claim to profits is, at least at this stage, doubtful. Indeed, as and when amounts are received from the purchasers, the appellant would be entitled to credit.12. Mr. Joglekar submitted that the third MOU must be read together and must also be implemented together. We will presume that to be so. However, as we mentioned earlier, clause 5 of the recitals to the first MOU dated 7th March, 2011, expressly stated that in the event of any of the business opportunities referred to therein not materializing, the amount of Rs.2.5 crores would be payable. Admittedly, the IDPL order was not placed. Thus, under the express provisions of the MOU, the amount of Rs.2.5 crores is payable in any event. In the circumstances, we see no reason to interfere with the impugned order insofar as it admits the petition.13. We, however, see no justification for the appointment of a provisional liquidator at this stage. The learned Judge has also passed the following order:"8.(c) pending the admission and hearing and final disposal of the petition, a Provisional Liquidator be appointed of the said M/s. Rajat Pharmachem Limited with all powers under the Companies Act I of 1956, including powers to take immediate charge of the affairs, assets and the business of the said Company and to take appropriate steps from disbursement of recoveries effected and of the assets available after liquidation of the said Company to the benefit of creditors including the petitioners."14. An interim order in these terms, in fact, has the effect of winding up the company even before the final winding up order. There may well be cases where the Court may consider it necessary to dispose of the assets even before the final order of winding up is passed. This, however, is not such a case. The impugned order does not indicate any reasons for passing such a drastic order at this stage. In any event, there would be no question of disbursing the recoveries that may be made at this stage.15. The impugned order insofar as it has granted reliefs in terms of prayer (c) of the above petition is, therefore, set aside. It is necessary, however, to direct the respondents to deposit in Court recoveries made pursuant to its transactions with BCPL. This is in view of what we have stated earlier regarding the second MOU dated 7th March, 2011, and the first respondents failure to pay or ensure payment of the amounts due from BCPL to the respondent.16. We appreciate that there are several pending orders, especially with BCPL. However, the respondent is not prevented from fulfilling those orders merely on account of the petition being admitted.17. There is no offer on the part of the appellant to deposit any amount. It is not necessary, therefore, for us to consider an order of deposit as a condition to avoiding the admission of the petition.
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10. The only contention is that the appellant may be entitled to profits under the third MOU and the same can be determined only after the respondent furnishes accounts in respect thereof.The appellant, however, never called upon the respondent to pay any amounts towards its share of the profits under the third MOU. It never raised the issues prior to the petition. We do not wish to express any view about the merits of the summary suit filed by the respondent against the appellant.11. At the cost of repetition, the position as on date is that the previous dues are admitted. The dues under the second MOU dated 7th March, 2011, pertaining to the BCPL contracts have not been received by the appellant. Even after giving credit of the sum of about Rs.2.30 crores, a principal amount of about Rs.3 crores is due and payable by the appellant to the respondent. On the other hand, as far as the third MOU relating to the exports to Nigeria is concerned, the appellants claim to profits is, at least at this stage, doubtful. Indeed, as and when amounts are received from the purchasers, the appellant would be entitled to credit.12.Mr. Joglekar submitted that the third MOU must be read together and must also be implemented together.We will presume that to be so. However, as we mentioned earlier, clause 5 of the recitals to the first MOU dated 7th March, 2011, expressly stated that in the event of any of the business opportunities referred to therein not materializing, the amount of Rs.2.5 crores would be payable. Admittedly, the IDPL order was not placed. Thus, under the express provisions of the MOU, the amount of Rs.2.5 crores is payable in any event. In the circumstances, we see no reason to interfere with the impugned order insofar as it admits the petition.13. We, however, see no justification for the appointment of a provisional liquidator at this stage.An interim order in these terms, in fact, has the effect of winding up the company even before the final winding up order. There may well be cases where the Court may consider it necessary to dispose of the assets even before the final order of winding up is passed. This, however, is not such a case. The impugned order does not indicate any reasons for passing such a drastic order at this stage. In any event, there would be no question of disbursing the recoveries that may be made at this stage.15. The impugned order insofar as it has granted reliefs in terms of prayer (c) of the above petition is, therefore, set aside. It is necessary, however, to direct the respondents to deposit in Court recoveries made pursuant to its transactions with BCPL. This is in view of what we have stated earlier regarding the second MOU dated 7th March, 2011, and the first respondents failure to pay or ensure payment of the amounts due from BCPL to the respondent.16. We appreciate that there are several pending orders, especially with BCPL. However, the respondent is not prevented from fulfilling those orders merely on account of the petition being admitted.17. There is no offer on the part of the appellant to deposit any amount. It is not necessary, therefore, for us to consider an order of deposit as a condition to avoiding the admission of the petition.
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Arun Kumar Vs. Union Of India | (5). We are, however, not inclined to enter into larger question as in our view, it is not necessary in the light of statutory provision relating to concession in the matter of rent respecting any accommodation in Section 17(2)(ii) of the Act. We are of the view that Rule 3 would apply only to those cases where concession has been shown by an employer in favour of an employee in the matter of rent respecting accommodation. Thus, whereas charging provision is found in the Act of Parliament [Section 17(2)(ii)], machinary component is in the subordinate legislation (Rule 3). The latter will apply only after liability is created under the former. Unless the liability arises under Section 17(2)(ii) of the Act, Rule 3 has no application and the method of valuation for calculating concessional benefits cannot be resorted to. Mr. Dhankar, who appeared for federation of employees, invited our attention to Report of the Pay Revision Committee for Public Sector Executives, published by the Government of India in October, 1998. Taking into account the crucial and pivotal role played by Public Sector Undertakings and considering their importance in the light of the fact that it is a limb of Government and State within the meaning of Article 12 of the Constitution, the Government of India had constituted a Committee headed by Honble Mr. Justice S. Mohan (Retd.). The Committee considered various issues including issues as to pay scales, perquisites etc., of employees of Public Sector Undertakings. The counsel referred to various recommendations made by the Committee and submitted that different treatment shown by the authorities to employees of Government and employees of Public Sector Undertakings is arbitrary, discriminatory and unreasonable being violative of Articles 14, 16 and 19 of the Constitution. He, therefore, submitted that the benefits extended to Government employees ought to have been extended to employees of Public Sector Undertakings as well. We are unable to uphold the argument. As already indicated earlier, the High Court of Calcutta in the impugned order considered the question and held classification between Government employees and employees of Companies, Corporations and other Public Undertakings as reasonable. Though the doctrine of equity has no place in taxing statutes, an attempt has been made by the rule making authority to introduce equity by keeping in view the ground reality. According to the High Court, it cannot be disputed that in the sphere of income, Government employees are far below to the employees of Companies, Corporations and other Undertakings. The benefits which have been provided to employees of Corporations, Companies and other Undertakings are much more than the benefits extended to Government employees. If on the basis of the factual scenario, a classification is made between two classes of employees, it cannot be struck down as ultra vires. 64. It is no doubt true that Article 14 guarantees equality before the law and confers equal protection of laws. It is also true that it prohibits the State from denying persons or class of persons equal treatment provided they are equals and are similarly situated. But, it is equally well established that Article 14 seeks to prevent or prohibit a person or class of persons from being singled out from others situated similarly. If two persons or two classes are not similarly situated or circumstanced, they cannot be treated similarly. To put it differently, Article 14 prohibits dissimilar treatment to similarly situated persons, but does not prohibit classification of persons not similarly situated, provided such classification is based on intelligible differentia and is otherwise legal, valid and permissible. Very recently in Confederation of Ex-Servicemen Associations & Ors. v. Union of India & Ors. decided on August 22, 2006, the Constitution Bench had an occasion to consider a similar question. Referring to State of West Bengal v. Anwar Ali Sarkar & Another, (1952 SCR 284 : AIR 1952 SC 75 ) and several other cases, one of us (C.K. Thakker, J.) observed that it is clear that every classification to be legal, valid and permissible, must fulfill the twin-test, namely;(i) the classification must be founded on an intelligible differentia which must distinguish persons or things that are grouped together from others leaving out or left out; and (ii) such a differentia must have rational nexus to the object sought to be achieved by the statute or legislation in question. In our opinion, distinction sought to be made by the rule making authority between employees of the Central Government as well as State Governments and other employees i.e., employees of Companies, Corporations and other Undertakings is reasonable classification based on intelligible differentia. It has also rational nexus to the object sought to be achieved. Rule 3 takes into account service conditions of employees of Government vis-Ã -vis employees of Corporations, Companies and other Undertakings and prescribes method of calculating value of all perquisites. Such a provision, in our considered opinion, cannot be held ultra vires Article 14 of the Constitution. Even under the Constitution, such a distinction has been upheld in several cases by this Court. Article 311 of the Constitution confers certain benefits which are not available to employees of Corporations, Companies and other Undertakings. It was contended on behalf of those employees that such Corporations, Companies and Undertakings were covered by the definition State within the meaning of Article 12 of the Constitution and they also must be granted all the benefits which had been granted to employees of the Government. The contention was, however, negatived by this Court holding that application of Part XIV of the Constitution would be limited to Services under the Union and the States and not to other employees [vide S.L. Agarwal v. General Manager, Hindustan Steel Ltd; (1970) 1 SCC 177 : (1970) 3 SCR 363 ; Ajit Kumar Nag v. General Manager, Indian Oil Corporation Ltd., (2005) 7 SCC 764] . We, therefore, see no substance in the argument that the impugned provision differentiating employees of Government and employees of Companies, Corporations and other Undertakings is arbitrary and objectionable. 65. | 1[ds]As we have already indicated earlier, Rule 3 prior to its amendment in 2001 was totally different. It dealt with the method of calculation of concession keeping in view the concept of fair rental value. In the light of the principle and phraseology in Rule 3, the rule making authority provided an opportunity to the assessee to satisfy the Assessing Officer that the rent sought to be recovered from the employee could not be said to be concession as it was fair rent, reasonable rent, market rent or standard rent. When the rule is amended and the concept of fair rental value has been done away with and the only method which has been adopted is to calculate the rent on the basis of population of the city in question, it cannot be successfully contended that the intention of the rule making authority was to afford an opportunity to the assessee to convince the Assessing Officer that the rent recovered by the employer from his employee was not in the nature of concession. Nor a court of law would, by interpretative process, grant such opportunity to the assessee so as to enable him to convince the Assessing Officer that the rent fixed was not covered by Section 17(2)(ii) of the Act and therefore was not a perquisite. We are, therefore, unable to accept the argument of Mr. Salve and allow import of the principles of natural justice in Rule 3Considering several cases on the point, the Court held that Section 295 of the Act conferred power to frame Rules on a high functionary i.e. Central Board of Direct Taxes (CBDT), subject to the control of Central Government. It was also observed that the Board consisted of very high functionaries of the Government of India who were expected to have deep knowledge about the policy as envisaged for imposition of tax in the country. When power was conferred on such Expert Body and after considering the relevant aspects, it took a decision, it could not be said to be unlawful or unwarranted. The legislative policy had been reflected in Section 17 of the Act and the Rule Making Authority, merely implemented the said policy on the basis of essential legislative functions performed by Parliament. The Court, therefore, negatived the contention of excessive delegation. Any difficulty or hardship in an individual case or to a particular person would not make the Rule ultra vires or unconstitutionalIn our opinion, the submission of Mr. Parasaran, learned Additional Solicitor General deserves to be accepted that when the concept of fair rent, market rent, reasonable rent or standard rent is no more relevant or germane in deciding the question, it was open to the Legislature to empower the rule making authority to provide the method for calculation of concession. We are further of the view that the criterion which was adopted by the rule making authority in treating cities having population of less than four lakhs and more than four lakhs cannot be said to be arbitrary or unreasonable and fixation of rent on the basis of population of city cannot be interfered with in exercise of power of judicial review. The said argument, therefore, has no substance and cannot be upheld. But in our opinion, the fundamental question of applicability of Section 17 (2) of the Act still remains. It cannot be gainsaid that Section 17 (2) would apply only if there is perquisite. Indisputably, the definition of perquisite is inclusive in nature and takes within its sweep several matters enumerated in clauses (i) to (vii). Section 17 (2) (ii) declares that the value of any concession in the matter of rent respecting any accommodation provided to the employee by his employer would be perquisite. Nevertheless it must be a concession in the matter of rent respecting any accommodation provided by the employer to his employeeFrom the above decisions, it is clear that existence of jurisdictional fact is sine qua non for the exercise of power. If the jurisdictional fact exists, the authority can proceed with the case and take an appropriate decision in accordance with law. Once the authority has jurisdiction in the matter on existence of jurisdictional fact, it can decide the fact in issue or adjudicatory fact. A wrong decision on fact in issue or on adjudicatory fact would not make the decision of the authority without jurisdiction or vulnerable provided essential or fundamental fact as to existence of jurisdiction is presentIn our opinion, the submission of Mr. Salve is well founded and deserves to be accepted that concession under clause (ii) of sub-section (2) of Section 17 of the Act is a jurisdictional fact. It is only when there is a concession in the matter of rent respecting any accommodation provided by an employer to his employee that the mode, method or manner as to how such concession can be computed arises. In other words, concession is a jurisdictional fact; method of fixation of amount is fact in issue or adjudicatory fact. If the assessee contends that there is no concession, the authority has to decide the said question and record a finding as to whether there is concession and the case is covered by Section 17 (2) (ii) of the Act. Only thereafter the authority may proceed to calculate the liability of the assessee under the Rules. In our considered opinion, therefore, in spite of the legal position that Rule 3 is intra vires, valid and is not inconsistent with the provisions of the parent Act under Section 17 (2) (ii) of the Act, it is still open to the assessee to contend that there is no concession in the matter of accommodation provided by the employer to the employee and hence the case did not fall within the mischief of Section 17 (2) (ii) of the Act. There is yet another aspect of the matter which is important and having a bearing on the question. We have extracted Section 17(2)(ii) in the earlier part of the judgment. It does not contain any deeming clause that once it is established that an employee is paying rent less than 10 per cent of his salary in cities having population of four lakhs or 7.5 per cent in other cities, it should be deemed to be a concession within the meaning of the Act and such employee must be deemed to receive a concession in the form of perquisite in the payment of rent. An employer may provide residential accommodation to his employees for several reasons. It is also possible that for making available staff quarters/ colonies/accommodations, State Governments or Central Government may provide land to Public Sector Undertakings/ Companies/ Corporations at a concessional rate imposing appropriate conditions including amount of rent, if any, to be recovered by the employer. Mr. Salve also invited our attention to certain decisions wherein it had been held that residential facility provided by the employer to the employee was not held perquisite within the meaning of Income Tax laws. Mr. Salve placed reliance on a decision in Alexander Tenant v. Robert Smith, 1892 AC 150 (HL). There, the appellant who was an agent for the Bank of Scotland at Montrose, had been granted accommodation by his employer as part and parcel of his duty. The House of Lords held that he was bound as part of his duty as agent to live in the bank house as the nature of the employment required that he should live in his masters dwelling house or business-premises instead of occupying a separate residence of his own. According to the Court, such an occupation could not be regarded as part of appellants income. He occupied the bank house as a part of his duty. It was observed that the situation could not be distinguished from that of the Master of a Ship who was spared the cost of house rent while afloat. His cabin, does not, on that account become a part of his incomeThe counsel also submitted that the object of Rule 3 is to extend relief to employees and keeping in view the said purpose, it has to be interpreted liberally. In support of the submission, reliance was placed on a three Judge Bench decision of this Court in CIT, Bombay v. British Bank of Middle East, (2001) 8 SCC 36. The question for determination of this Court related to expenditure incurred by an employer on facility of car provided to an employee for private use.Interpreting Section 40-A (5) of the Act and Rule 3 of the Rules and highlighting the object underlying in enacting both the provisions, one of us (Y.K. Sabharwal, J. as His Lordship then was) stated that Section 40-A (5) and Rule 3 operate in different fields and apply to different set of assessees. The provision of the Act was enacted to provide for ceiling on expenditure on employees. The object of the Rule is to give relief to the employees. Applying Rule 3 for the purpose of determining the deduction in relation to the assessment of the employer would be doing violence to and ignoring the legislative intent evident in Section 40-A (5). We are, however, not inclined to enter into larger question as in our view, it is not necessary in the light of statutory provision relating to concession in the matter of rent respecting any accommodation in Section 17(2)(ii) of the Act. We are of the view that Rule 3 would apply only to those cases where concession has been shown by an employer in favour of an employee in the matter of rent respecting accommodation. Thus, whereas charging provision is found in the Act of Parliament [Section 17(2)(ii)], machinary component is in the subordinate legislation (Rule 3). The latter will apply only after liability is created under the former. Unless the liability arises under Section 17(2)(ii) of the Act, Rule 3 has no application and the method of valuation for calculating concessional benefits cannot be resorted to. Mr. Dhankar, who appeared for federation of employees, invited our attention to Report of the Pay Revision Committee for Public Sector Executives, published by the Government of India in October, 1998. Taking into account the crucial and pivotal role played by Public Sector Undertakings and considering their importance in the light of the fact that it is a limb of Government and State within the meaning of Article 12 of the Constitution, the Government of India had constituted a Committee headed by Honble Mr. Justice S. Mohan (Retd.). The Committee considered various issues including issues as to pay scales, perquisites etc., of employees of Public Sector Undertakings. The counsel referred to various recommendations made by the Committee and submitted that different treatment shown by the authorities to employees of Government and employees of Public Sector Undertakings is arbitrary, discriminatory and unreasonable being violative of Articles 14, 16 and 19 of the Constitution. He, therefore, submitted that the benefits extended to Government employees ought to have been extended to employees of Public Sector Undertakings as well. We are unable to uphold the argument. As already indicated earlier, the High Court of Calcutta in the impugned order considered the question and held classification between Government employees and employees of Companies, Corporations and other Public Undertakings as reasonable. Though the doctrine of equity has no place in taxing statutes, an attempt has been made by the rule making authority to introduce equity by keeping in view the ground reality. According to the High Court, it cannot be disputed that in the sphere of income, Government employees are far below to the employees of Companies, Corporations and other Undertakings. The benefits which have been provided to employees of Corporations, Companies and other Undertakings are much more than the benefits extended to Government employees. If on the basis of the factual scenario, a classification is made between two classes of employees, it cannot be struck down as ultra viresIt is no doubt true that Article 14 guarantees equality before the law and confers equal protection of laws. It is also true that it prohibits the State from denying persons or class of persons equal treatment provided they are equals and are similarly situated. But, it is equally well established that Article 14 seeks to prevent or prohibit a person or class of persons from being singled out from others situated similarly. If two persons or two classes are not similarly situated or circumstanced, they cannot be treated similarly. To put it differently, Article 14 prohibits dissimilar treatment to similarly situated persons, but does not prohibit classification of persons not similarly situated, provided such classification is based on intelligible differentia and is otherwise legal, valid and permissibleIn our opinion, distinction sought to be made by the rule making authority between employees of the Central Government as well as State Governments and other employees i.e., employees of Companies, Corporations and other Undertakings is reasonable classification based on intelligible differentia. It has also rational nexus to the object sought to be achieved. Rule 3 takes into account service conditions of employees of Government vis-Ã -vis employees of Corporations, Companies and other Undertakings and prescribes method of calculating value of all perquisites. Such a provision, in our considered opinion, cannot be held ultra vires Article 14 of the Constitution. Even under the Constitution, such a distinction has been upheld in several cases by this Court. Article 311 of the Constitution confers certain benefits which are not available to employees of Corporations, Companies and other Undertakings. It was contended on behalf of those employees that such Corporations, Companies and Undertakings were covered by the definition State within the meaning of Article 12 of the Constitution and they also must be granted all the benefits which had been granted to employees of the GovernmentWe, therefore, see no substance in the argument that the impugned provision differentiating employees of Government and employees of Companies, Corporations and other Undertakings is arbitrary and objectionable. | 1 | 14,775 | 2,578 | ### Instruction:
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(5). We are, however, not inclined to enter into larger question as in our view, it is not necessary in the light of statutory provision relating to concession in the matter of rent respecting any accommodation in Section 17(2)(ii) of the Act. We are of the view that Rule 3 would apply only to those cases where concession has been shown by an employer in favour of an employee in the matter of rent respecting accommodation. Thus, whereas charging provision is found in the Act of Parliament [Section 17(2)(ii)], machinary component is in the subordinate legislation (Rule 3). The latter will apply only after liability is created under the former. Unless the liability arises under Section 17(2)(ii) of the Act, Rule 3 has no application and the method of valuation for calculating concessional benefits cannot be resorted to. Mr. Dhankar, who appeared for federation of employees, invited our attention to Report of the Pay Revision Committee for Public Sector Executives, published by the Government of India in October, 1998. Taking into account the crucial and pivotal role played by Public Sector Undertakings and considering their importance in the light of the fact that it is a limb of Government and State within the meaning of Article 12 of the Constitution, the Government of India had constituted a Committee headed by Honble Mr. Justice S. Mohan (Retd.). The Committee considered various issues including issues as to pay scales, perquisites etc., of employees of Public Sector Undertakings. The counsel referred to various recommendations made by the Committee and submitted that different treatment shown by the authorities to employees of Government and employees of Public Sector Undertakings is arbitrary, discriminatory and unreasonable being violative of Articles 14, 16 and 19 of the Constitution. He, therefore, submitted that the benefits extended to Government employees ought to have been extended to employees of Public Sector Undertakings as well. We are unable to uphold the argument. As already indicated earlier, the High Court of Calcutta in the impugned order considered the question and held classification between Government employees and employees of Companies, Corporations and other Public Undertakings as reasonable. Though the doctrine of equity has no place in taxing statutes, an attempt has been made by the rule making authority to introduce equity by keeping in view the ground reality. According to the High Court, it cannot be disputed that in the sphere of income, Government employees are far below to the employees of Companies, Corporations and other Undertakings. The benefits which have been provided to employees of Corporations, Companies and other Undertakings are much more than the benefits extended to Government employees. If on the basis of the factual scenario, a classification is made between two classes of employees, it cannot be struck down as ultra vires. 64. It is no doubt true that Article 14 guarantees equality before the law and confers equal protection of laws. It is also true that it prohibits the State from denying persons or class of persons equal treatment provided they are equals and are similarly situated. But, it is equally well established that Article 14 seeks to prevent or prohibit a person or class of persons from being singled out from others situated similarly. If two persons or two classes are not similarly situated or circumstanced, they cannot be treated similarly. To put it differently, Article 14 prohibits dissimilar treatment to similarly situated persons, but does not prohibit classification of persons not similarly situated, provided such classification is based on intelligible differentia and is otherwise legal, valid and permissible. Very recently in Confederation of Ex-Servicemen Associations & Ors. v. Union of India & Ors. decided on August 22, 2006, the Constitution Bench had an occasion to consider a similar question. Referring to State of West Bengal v. Anwar Ali Sarkar & Another, (1952 SCR 284 : AIR 1952 SC 75 ) and several other cases, one of us (C.K. Thakker, J.) observed that it is clear that every classification to be legal, valid and permissible, must fulfill the twin-test, namely;(i) the classification must be founded on an intelligible differentia which must distinguish persons or things that are grouped together from others leaving out or left out; and (ii) such a differentia must have rational nexus to the object sought to be achieved by the statute or legislation in question. In our opinion, distinction sought to be made by the rule making authority between employees of the Central Government as well as State Governments and other employees i.e., employees of Companies, Corporations and other Undertakings is reasonable classification based on intelligible differentia. It has also rational nexus to the object sought to be achieved. Rule 3 takes into account service conditions of employees of Government vis-Ã -vis employees of Corporations, Companies and other Undertakings and prescribes method of calculating value of all perquisites. Such a provision, in our considered opinion, cannot be held ultra vires Article 14 of the Constitution. Even under the Constitution, such a distinction has been upheld in several cases by this Court. Article 311 of the Constitution confers certain benefits which are not available to employees of Corporations, Companies and other Undertakings. It was contended on behalf of those employees that such Corporations, Companies and Undertakings were covered by the definition State within the meaning of Article 12 of the Constitution and they also must be granted all the benefits which had been granted to employees of the Government. The contention was, however, negatived by this Court holding that application of Part XIV of the Constitution would be limited to Services under the Union and the States and not to other employees [vide S.L. Agarwal v. General Manager, Hindustan Steel Ltd; (1970) 1 SCC 177 : (1970) 3 SCR 363 ; Ajit Kumar Nag v. General Manager, Indian Oil Corporation Ltd., (2005) 7 SCC 764] . We, therefore, see no substance in the argument that the impugned provision differentiating employees of Government and employees of Companies, Corporations and other Undertakings is arbitrary and objectionable. 65.
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that account become a part of his incomeThe counsel also submitted that the object of Rule 3 is to extend relief to employees and keeping in view the said purpose, it has to be interpreted liberally. In support of the submission, reliance was placed on a three Judge Bench decision of this Court in CIT, Bombay v. British Bank of Middle East, (2001) 8 SCC 36. The question for determination of this Court related to expenditure incurred by an employer on facility of car provided to an employee for private use.Interpreting Section 40-A (5) of the Act and Rule 3 of the Rules and highlighting the object underlying in enacting both the provisions, one of us (Y.K. Sabharwal, J. as His Lordship then was) stated that Section 40-A (5) and Rule 3 operate in different fields and apply to different set of assessees. The provision of the Act was enacted to provide for ceiling on expenditure on employees. The object of the Rule is to give relief to the employees. Applying Rule 3 for the purpose of determining the deduction in relation to the assessment of the employer would be doing violence to and ignoring the legislative intent evident in Section 40-A (5). We are, however, not inclined to enter into larger question as in our view, it is not necessary in the light of statutory provision relating to concession in the matter of rent respecting any accommodation in Section 17(2)(ii) of the Act. We are of the view that Rule 3 would apply only to those cases where concession has been shown by an employer in favour of an employee in the matter of rent respecting accommodation. Thus, whereas charging provision is found in the Act of Parliament [Section 17(2)(ii)], machinary component is in the subordinate legislation (Rule 3). The latter will apply only after liability is created under the former. Unless the liability arises under Section 17(2)(ii) of the Act, Rule 3 has no application and the method of valuation for calculating concessional benefits cannot be resorted to. Mr. Dhankar, who appeared for federation of employees, invited our attention to Report of the Pay Revision Committee for Public Sector Executives, published by the Government of India in October, 1998. Taking into account the crucial and pivotal role played by Public Sector Undertakings and considering their importance in the light of the fact that it is a limb of Government and State within the meaning of Article 12 of the Constitution, the Government of India had constituted a Committee headed by Honble Mr. Justice S. Mohan (Retd.). The Committee considered various issues including issues as to pay scales, perquisites etc., of employees of Public Sector Undertakings. The counsel referred to various recommendations made by the Committee and submitted that different treatment shown by the authorities to employees of Government and employees of Public Sector Undertakings is arbitrary, discriminatory and unreasonable being violative of Articles 14, 16 and 19 of the Constitution. He, therefore, submitted that the benefits extended to Government employees ought to have been extended to employees of Public Sector Undertakings as well. We are unable to uphold the argument. As already indicated earlier, the High Court of Calcutta in the impugned order considered the question and held classification between Government employees and employees of Companies, Corporations and other Public Undertakings as reasonable. Though the doctrine of equity has no place in taxing statutes, an attempt has been made by the rule making authority to introduce equity by keeping in view the ground reality. According to the High Court, it cannot be disputed that in the sphere of income, Government employees are far below to the employees of Companies, Corporations and other Undertakings. The benefits which have been provided to employees of Corporations, Companies and other Undertakings are much more than the benefits extended to Government employees. If on the basis of the factual scenario, a classification is made between two classes of employees, it cannot be struck down as ultra viresIt is no doubt true that Article 14 guarantees equality before the law and confers equal protection of laws. It is also true that it prohibits the State from denying persons or class of persons equal treatment provided they are equals and are similarly situated. But, it is equally well established that Article 14 seeks to prevent or prohibit a person or class of persons from being singled out from others situated similarly. If two persons or two classes are not similarly situated or circumstanced, they cannot be treated similarly. To put it differently, Article 14 prohibits dissimilar treatment to similarly situated persons, but does not prohibit classification of persons not similarly situated, provided such classification is based on intelligible differentia and is otherwise legal, valid and permissibleIn our opinion, distinction sought to be made by the rule making authority between employees of the Central Government as well as State Governments and other employees i.e., employees of Companies, Corporations and other Undertakings is reasonable classification based on intelligible differentia. It has also rational nexus to the object sought to be achieved. Rule 3 takes into account service conditions of employees of Government vis-Ã -vis employees of Corporations, Companies and other Undertakings and prescribes method of calculating value of all perquisites. Such a provision, in our considered opinion, cannot be held ultra vires Article 14 of the Constitution. Even under the Constitution, such a distinction has been upheld in several cases by this Court. Article 311 of the Constitution confers certain benefits which are not available to employees of Corporations, Companies and other Undertakings. It was contended on behalf of those employees that such Corporations, Companies and Undertakings were covered by the definition State within the meaning of Article 12 of the Constitution and they also must be granted all the benefits which had been granted to employees of the GovernmentWe, therefore, see no substance in the argument that the impugned provision differentiating employees of Government and employees of Companies, Corporations and other Undertakings is arbitrary and objectionable.
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Mohammad Shah Vs. Fasihuddin Ansari & Others | a title adverse to the trust or be allowed to make a benefit out of the trust for his own personal ends.54. This applies equally to Room A. In its origin it was separate and severable from the mosque and so could have been regarded as distinct from it even though it was constructed by a Mutwalli. But the inside walls that separated it from the mosque were pulled down in 1908 and the old mosque was extended into it so that the room now forms an integral part of the old mosque. That made it an accretion to the mosque, and as the Muslim public have been using it ever since for religious purposes along with the mosque proper, dedication by the defendant must be presumed despite his claim that the old mosque was part of his private estate. He was making these claims as late as 1921 and 1927. In 1921 he sued a third party who claimed to be the Mutwalli for the key of the mosque and in 1927 he was the defendant in a suit instituted under S. 92 Civil P. C. in which he set up that claim as an answer to the suit. But his assertions in 1921 and 1927 cannot outweigh his conduct in 1908 so far as room A is concerned.55. The portion of the land marked A-1 in the plaint map is a yard. There is no. evidence of public user of this part of the property for a religious purpose. All that can be said about it is that worshippers in the mosque pass over this plot to obtain ingress to the mosque. The map, Ex. D-43 shows that there is no. other access. There is some oral evidence to the effect that prayers are occasionally offered there at a funeral but the same evidence shows that that is also done on the road, so that king of user is not enough to indicate dedication.56. The same applies to the portion marked A-6. The defendant has let this out to Government and in the lease (Ex. D-40 dates 25-6-1935) he claims to be the ostensible owner, and it is admitted that he collects and keeps the rent. There is no. clear evidence of long and uninterrupted public user. Some witnesses say that the worshippers sometimes overflow into the land and that prayers are sometimes said there over dead bodies at funerals. We do not think that is enough to indicate dedication.57. After a careful survey of the evidence, we have reached the following conclusions :(1) that the old mosque as it stood in 1880 is proved to be wakf property but that nothing beyond the building and the site on which it stood is shown to have been wakf at that date;(2) that this property has been added to from time to time and the whole is now separately demarcated and that the additions and accretions from a composite and separate entity as shown in the plaintiffs map. This is the area marked ABCD in that map;(3) that this area is used by the public for religious purposes along with the old mosque and as the area has been made into a separately demarcated compact unit for a single purpose, namely collective and individual worship in the mosque, it must be regarded as one unit and be treated as such. The whole is accordingly now wakf.(4) that the accretions were made by Gulab Shah and the defendant both of whom claimed to be Mutawalli of the mosque;(5) that this area also includes the shops and chabutra shown to the west of the mosque in the plaint map on a triangular piece of land;(6) that the urinal, water pipe and bathroom were constructed for the use of the worshippers and so must be regarded as an adjunct of the wakf;(7) that the rest of the property in suit is not shown to be wakf or accretions to the wakf estate. It is separately demarcated and severable from the wakf portion ABCD and the shops to the west of the mosque;(8) that the worshippers at the mosque have a right of way as an easement over the plot A- 1 to obtain ingress to and egress from the mosque, and also a right of way to the urinals, the water tap and the bathroom.58. There remain for consideration the plea of res judicata and limitation raised by the learned counsel for the defendant.59. So far as res judicata is concerned, the argument is that the Muslim community sued Gulab Shah in 1880 for the whole of the present property and as their suit was dismissed in toto Explanation V to S. 11, Civil P. C. applies.60. We need not go into this question because it is now admitted, and was so found in the 1880 litigation, that the old mosque was wakf property. It can be assumed that the rest was not wakf at that date and indeed that is also our conclusion on a review of the evidence. But much happened since the 1880 litigation and there have been subsequent additions and accretions to the original estate so that now the whole of those additions and accretions form part and parcel of the original wakf.61. On the point of limitation, it was contended that Art. 120, Limitation Act applies and that the cause of action accrued in 1880 and at several times thereafter beyond the six years contemplated by that Article. The answer here is that, S. 10, Limitation Act applies : The proviso says that-"For the purpose of this section any property comprised in a ............ Muhamadan ................. religious or charitable endowment shall be deemed to be property vested in trust for a specific purpose, and the manager of any such property shall be deemed to be the trustee thereof." Therefore, no. question of limitation can arise in respect of those parts of the property in dispute which, according to our finding, are now comprised in the wakf estate. | 1[ds]15. These facts about the origin of the mosque were substantially accepted by the section of the Muslim community, whom the plaintiffs claim to present in a hand bill issued on). This hand bill was signed by the first plaintiff in the present litigation along with other persons. It says : "It is an admitted fact that a long time ago one Patwa constructed a small three arched mosque ... for Fakir Mohammad Shahs great grant father Hazarat Sufi Miskin Shah Sahib. The tomb of the said Shah Sahib is in front of the mosque."16. It can therefore be accepted that this was the origin of the mosque. It can also be accepted as a matter of law that a wakf normally requires express dedication but "if land has been used from time immemorial for a religious purpose ..... then the land is by user wakf although there is no. evidence of an express dedication". (Mullas Mohamedan Law Edn. 14, p. 173). It is evident that there was no. proof of express dedication up to the year 1880 nor has any been produced since, therefore the only question is whether there is evidence of user and if so, user of what.17. It will now be necessary to turn to the map filled with the defendants written statement. It sets out the different stages of development of this property. In the year 1880, when the suit of that year was filed, the mosque proper stood on some open land. There were houses to the south and east of this open land and on a part towards the north. On the west was a drain and a road. Miskin Shahs tomb was to the east and in between the tomb and the mosque was a well. There was another tomb to the south of the mosque and there was an imambara still further south. The mosque was only 21 X 139" at that time. There is nothing to show that this land was fenced in or that these properties formed an integrated whole. Such demarcations as we have are of the compounds belonging to the surrounding houses and not of this open land in which these several structures stood dotted about. It is true this is the defendants map but the point we are making is that the plaintiffs have not produced any evidence to show that those properties were an integrated unit in 1880 or even that they were regarded as such.The strongest evidence of all in these fourteen years is Ex.3. Some third party purchased an option for catching fish and taking singhadas (water nuts) from the Municipal Committee of Jabalpur. Gulab Shah stood security for this person and he offered as security Room A which he said was "owned by me personally". He called the eastern boundary of this "house" the "mosque of self" and said that its northern boundary was "mosque". The mosque on the north of room A was the old masjid which was declared to be public charitable property in the 1880 litigation. The "mosque" to the east, which Gulab Shah claimed was his mosque, comprised part of the extensions to the old mosque which admittedly Gulab Shah had made himself "after spending thousands of rupees". It is fair to assume from these documents that Gulab Shah made a distinction between the old mosque and the new extensions and that he claimed the extensions and room A as his own property. The fact that members of his family joined in the leases of room A places this beyondIt is not possible to understand this application until we look at the map, Ex.which accompanied it. It will be observed that in the paragraph which we have marked A Gulab Shah speaks only of the "mosque". His plan shows that in black colour and calls it the "Kotwali mosque". That part is confined to the old mosque which was 18 feet north to south in the year 1880. By this time the length had increased. But except for that the area is the same.31. Next, we notice that in para. C Gulab Shah speaks of a parchhi to be built in the compound of the "Imambara". The map shows that this parchhi does not join the Imambara but embraces the eastern end of Miskin Shahs tomb. This area is not referred to as the "Imambara masjid compound" but merely as the Imambara compound. It does not adjoin either the old portion of the mosque or any of its extensions.32. Lastly, we have paras, B and D. They speak of constructions in the "Imambara masjid compound". A reference to the map will show that the constructions to which these paragraphs refer are attached to the extensions of the mosque proper but do not form part of the old mosque as it stood in 1880. The chabutra extends along the east of the mosque and is between the old mosque and the courtyard which by now has been demarcated and has been either fenced in or walled in, and the parchhi extends to the south of room A with its eastern extremity in continuation of theboundary of the old portion of the mosque as it stood in 1880.33. In our opinion, Gulab Shah was speaking loosely when he spoke of the "mosque" in one place, of the "imambara compound" in another and of the "Imambara mosque compound" in a third. The view of his consistent assertions and conduct up to the date of this document, and in view of the confused expressions that he had used there, we are not able to regard this as a sudden abandonment of the position that he had consistently adopted before and continued to adopt after the document. It will be remembered that the claimed everything in the 1880 litigation. We have already set out a series of documents ranging from 1880 down to 1896 in which he and his family used, and he claimed, these properties as his own. Inadvertent expressions of dubious and ambiguous meaning cannot be twisted into admissions against the makers interest when the surrounding circumstances indicate that he had been consistently asserting the contrary over a series of years. Something stronger than that would be required. Had the assertions been clear and unambiguous the matter would have been different but"Imambara mosque compound"is anything but clear.34. Gulab Shah died in 1901 or 1902 and about that time the Municipal Committee granted him a receipt for house tax paid by him in respect of the Imambara for the year 1901/02. The document (Ex.ipt granted to Gulab Shah owner of house 241 etc." So far as it goes, it shows that Gulab Shah claimed this as his own property. It is to be observed that he did not pay the tax as Mutwalli.35. We think that a fair conclusion about the position as it existed at that date is this. First, Gulab Shah and his family claimed everything up to the year 1880. In that year they gave up their claims to the mosque as it stood in 1880 because of the judgment, Ex.after remand. There is no. evidence of any demarcation of compound to the mosque at that date, so it must be taken that all that was admitted to be public property was the mosque property and the area on which it was then built, Gulab Shah and his family continued to claim the rest of the property as theirs.36. After this Gulab Shah extended the mosque and by 1898 its boundaries were demarcated as shown in the map, Ex.Room A and a verandh appertaining to room A were added to the south of the old mosque. Some additions were made behind the mosque and to the west of it on a triangular strip of land, and a courtyard was added towards the east while the old mosque was extended by two feetBut there is nothing to show that public as such had any hand in these extension and it seems to us that Gulab Shah claimed these extensions to the mosque (as distinct from the old mosque as it stood in 1880) as his property. He also claimed all the property in this area as his.37. There is no. evidence at all of public user (apart from the old mosque) and still less of public user for a religious purpose. But we think that though there is no. direct evidence about this it will be fair to assume that the public did use a part of the extensions, namely the courtyard in front of the mosque and the area covered by the Chabutra to the east of the mosque when they used the mosque proper, and it will be a fair deduction that this was done for the same religious as in the case of the mosque proper. But room A was cut off from the mosque and so were the constructions behind the mosque on the west. Room A was rented by Gulab Shah and his family and there is no. evidence at all about user of the part behind the mosque towards the west. We cannot regard the renting of rooms to tenants for residential purposes as user by the public for religious purposes.38. We now pass on to the next stage. When Gulab Shah died the defendant was a minor and his affairs were managed by his guardian Gharibullah Shah. At this stage, certain members of the Muslim community stepped in and began to assert a right to deal with a part of the property. Up to the year 1907 there was a urinal and a bathroom (detached from the mosque proper and its extensions, as also from the Imambara) to the south of the mosque and to the west of the Imambara. Certain members of the community wanted these to be shifted to another spot, so they made an application to the Municipal committee for permission to do so. The application is Ex.7. Permission was granted on). But close on the heels of this followed an application by the defendants guardian to make certain alterations and constructions. This application is Ex.and is datesIt says that "marzaz and kothas etc. of my mosque ..... are in a dilapidated condition". Ex.We do not know which of the two made the construction. All we know is that notices were later sent to the defendant for failure to construct the latrine according to the proper pattern. These notices are Ex.10 and Ex.dates some time in 1913 : and onthe defendant was given permission to repair this latrine (Ex.The first notice speaks of the latrine in connection with "your house. " we also know that the conservancy tax was paid by the defendant throughout : see Exs.65, 108, 66, 70, 77, 83, 84, 86, 126 91, 115, 96 and 119. These documents range from5. We also know that the defendant was again allowed to repair the latrine on0. As against this, there is nothing to show that any members of the Muslim community other than the defendant ever paid the taxes or actually made the alterations. Further, in the hand bill (Ex.put out by the first plaintiff and others, it is admittedthe time of his (Fakir Mohammad Shahs ) minority his guardian Gharibullah Shah extended one part (of the mosque) only about 12 years ago at the most. And only about six or seven years ago he (Fakir Mohammad Shah) made a considerable improvement in the courtyard, drain, water pipe etc. by constructing thecurious document does not state that the Muslim community ever did anything or paid for it, and in particular it is silent about the construction of the latrines.41. The oral evidence about the removal of the these latrines is not worth much. The defendant says as D. W. 1 that he made the most recent constructions inbut says nothing about the earlier construction. The plaintiffs evidence is to the effect that the construction of 1907 or 1908 was by the signatories to the application, Ex.But we do not think this matter much because the defendant admits as D. W. 1 that the "urinals and bathroom shown in the second stage must have been for the use of the persons who used to attend the masjid for prayer". It is therefore evident that the worshippers at the mosque have been using the urinal and bathroom and that they were constructed for their use.42. As regards the rest of the property, there can be no. doubt that the defendant continued to lay claim to the Imambara, kothas and shops in the vicinity. He took a series of rent notes, issues notices and gave a lease deed. They all indicate that he was claiming those properties as his own. They range from May 1910 down to June 1935. The documents are Exs.161, 162, 179, 177, 189, 163, 186, 188, 191, 196, 193, and 40.43. There is no. evidence, apart from some vague and worthless oral evidence, about any user of these properties by the Muslim community. So far as the kothas and shops are concerned, it can hardly be pretended that the user was for religious purposes, therefore, unless the plaintiffs can show that these properties appertained to the wakf, that is to say, to the original mosque and formed a part of its estate, or an accretion to it, they cannot succeed, As we have shown, their sole source of title so far as this court is concerned is long continued public user for religious purposes. The only user they have been able to establish for that purpose is of the old mosque as it stood in 1880 plus certain extensions to it. We have therefore now do devote our attention to these extensions. But before we do that, we will examine he position about the two tombs, one of Miskin Shah and the other of Dara Shah, and of the Imambara.44. So far as the Imambara is concerned, it was in existence in Gulab Shahs time and it is clear that he dealt with it as his own property. It is also clear from the various maps that in the beginning there was no. compound or other demarcated area around any of these structures. They merely stood as isolated entities on a piece of open land surrounded on three sides by bungalows of other persons. Even at the date of suit, the first witness for the plaintiffs. Abdul Salam, admitted that "the Imambara is separate from the mosque". It is also clear from the various documents to which we have referred that after Gulab Shah the defendants guardian, and later the defendant, claimed and used this property as their own. they paid the taxes, they repaired it and they erected a second story on the oldbuilding.45. The documents show no. public user of the Imambara and the only evidence from which public user is sought to be established is the statements of certain witnesses in this case. They prove, and that is admitted, that tazias are prepared there. But the defendant says he pays for this and there is nothing to refute that. The plaintiffs have not produced a single witnesses to say that he ever contributed anything towards it or that he collected money for the purpose. Muhammad Khan (P. W. 5) admits that the defendant prepares these tazias and says that he does not know where he gets the money from, while Abdus Samad (P. W. 13) admits that the defendant bears all the costs, and Haji Alabux (P. W. 15) admits that the Jamaat does not pay anything towards this. He says the cost is met from offerings but that is vague because even if it is true offerings may be to the defendant personally to help him make the tazias.46. The only other evidence is that a school was once situate there. Qazi Fasihuddin (P. W. 2) says it was for "1, 1 1/2, or 2 years". Abdul Ghaffar (P .W. 4) says it was for "2 or 2 1/2 years" while Sheikh Kalloo (P. W. 3) it was only for "2 or 4 or 6 months". That is not long continued public user.47. The documents show that the extensions to the Imambara were carried out by the defendant and even the plaintiffs witness admit that he paid for them and also that he has been letting out the upper portion and collecting the rent : see P. Ws. 4 and 15. The latter admits that the Jamat has never had any of these rents over the last 40 or 45 years.48. Some evidence was produced to show that the defendant used the beams from the roof of the old masjid from the Imambara when an arched roof was placed over the old masjid. But this evidence is vague and the important point is that nobody protested. Also the reason why the rough of the old masjid was turned into an arched roof was because the beams of the old roughs were warmed out (see Ex.If that was the case, it is likely that they would have been used for theonly evidence is support of that is an inspection note datesmade by the trial Judge in this case. He says that "the masjid and the adjoining places appear to be inter connected with each other". That observation is justified because the extensions that have been made to the various items of property in this area have brought them all so close together that they now adjoin each other. But the force of this is displaced when the plaintiffs witness, P. W. 1, admits categorically that the Imambara is separate from the mosque.50. In our opinion, public user of this item of the property is not satisfactorily proved nor is it proved that the Imambara is an adjunct of the mosque.51. We turn next to the two tombs, . One of Miskin Shah and the other of Dara Shah. Both are tombs of members of the defendants family. There is evidence of public user so far as they are concerned and except for the fact that they are near the mosque, there is nothing to indicate that they are part and parcel of it. In the circumstances, we hold that the plaintiffs have not established their right to this, And this finding decides the dispute about the structures and rooms to the east of Miskin Shahs tomb. These structures were build by the defendant and he has been receiving rents for the shops and rooms situate there. There is some evidence to the effect that gahwaras are sometimes kept in the parchhi that is there. But that sort of user is not enough to indicate that the owner of the property divested himself of all interest in it and dedicated it to God or intended to make it an accretion to property already dedicated.52. We now come to the shops and rooms and other structures in the triangular strip of land behind the old mosque and to the west of it. These were built by the defendant and he has claimed them as his own and has realised the rents. But though they are separate from the mosque in the sense that they do not lead into It there is a lot of evidence, which we see no. reason to disbelieve, that proves (1) that the beams of these buildings rest on the masjid wall and have been inserted into it, (2) that the back of the mosque forms the back wall of these rooms, (3) that the minarets of the mosque have been scraped so as to make these rooms bigger and (4) that there were some pushtas these had been removed so as to enlarge the area for the rooms.53. Not it is evident that the space on which the pushtas and the minarets stood was part of the mosque property. The defendants has, therefore built on a part of the mosque estate and as he has not demarcated those portions from the rest we are bound to treat them as accretions to the mosque estate. It is true that a stranger to the trust could have encroached on the trust state and would in course of time have acquired a title by adverse possession. But a Mutwalli cannot take up such a position. Both Gulab Shah and the defendant have described themselves Mutwallis of the mosque, therefore, if they choose to build on part of the mosque property in such a way as to integrate the whole into one unit (that is to say, the parts of each room that stand on the mosque property and the remainder that does not so as to form one composite room) then we are bound to regard this as in accretion to the estate of which they were trustees, and they will be estopped from adopting any other attitude because no. trustee can be allowed to set up a title adverse to the trust or be allowed to make a benefit out of the trust for his own personal ends.54. This applies equally to Room A. In its origin it was separate and severable from the mosque and so could have been regarded as distinct from it even though it was constructed by a Mutwalli. But the inside walls that separated it from the mosque were pulled down in 1908 and the old mosque was extended into it so that the room now forms an integral part of the old mosque. That made it an accretion to the mosque, and as the Muslim public have been using it ever since for religious purposes along with the mosque proper, dedication by the defendant must be presumed despite his claim that the old mosque was part of his private estate. He was making these claims as late as 1921 and 1927. In 1921 he sued a third party who claimed to be the Mutwalli for the key of the mosque and in 1927 he was the defendant in a suit instituted under S. 92 Civil P. C. in which he set up that claim as an answer to the suit. But his assertions in 1921 and 1927 cannot outweigh his conduct in 1908 so far as room A is concerned.55. The portion of the land markedin the plaint map is a yard. There is no. evidence of public user of this part of the property for a religious purpose. All that can be said about it is that worshippers in the mosque pass over this plot to obtain ingress to the mosque. The map, Ex.shows that there is no. other access. There is some oral evidence to the effect that prayers are occasionally offered there at a funeral but the same evidence shows that that is also done on the road, so that king of user is not enough to indicate dedication.56. The same applies to the portion markedThe defendant has let this out to Government and in the lease (Ex.5) he claims to be the ostensible owner, and it is admitted that he collects and keeps the rent. There is no. clear evidence of long and uninterrupted public user. Some witnesses say that the worshippers sometimes overflow into the land and that prayers are sometimes said there over dead bodies at funerals. We do not think that is enough to indicate dedication.57. After a careful survey of the evidence, we have reached the following conclusions :(1) that the old mosque as it stood in 1880 is proved to be wakf property but that nothing beyond the building and the site on which it stood is shown to have been wakf at that date;(2) that this property has been added to from time to time and the whole is now separately demarcated and that the additions and accretions from a composite and separate entity as shown in the plaintiffs map. This is the area marked ABCD in that map;(3) that this area is used by the public for religious purposes along with the old mosque and as the area has been made into a separately demarcated compact unit for a single purpose, namely collective and individual worship in the mosque, it must be regarded as one unit and be treated as such. The whole is accordingly now wakf.(4) that the accretions were made by Gulab Shah and the defendant both of whom claimed to be Mutawalli of the mosque;(5) that this area also includes the shops and chabutra shown to the west of the mosque in the plaint map on a triangular piece of land;(6) that the urinal, water pipe and bathroom were constructed for the use of the worshippers and so must be regarded as an adjunct of the wakf;(7) that the rest of the property in suit is not shown to be wakf or accretions to the wakf estate. It is separately demarcated and severable from the wakf portion ABCD and the shops to the west of the mosque;(8) that the worshippers at the mosque have a right of way as an easement over the plot A1 to obtain ingress to and egress from the mosque, and also a right of way to the urinals, the water tap and the bathroom.There remain for consideration the plea of res judicata and limitation raised by the learned counsel for the defendant.So far as res judicata is concerned, the argument is that the Muslim community sued Gulab Shah in 1880 for the whole of the present property and as their suit was dismissed in toto Explanation V to S. 11, Civil P. C. applies.60. We need not go into this question because it is now admitted, and was so found in the 1880 litigation, that the old mosque was wakf property. It can be assumed that the rest was not wakf at that date and indeed that is also our conclusion on a review of the evidence. But much happened since the 1880 litigation and there have been subsequent additions and accretions to the original estate so that now the whole of those additions and accretions form part and parcel of the original wakf.61.On the point of limitation, it was contended that Art. 120, Limitation Act applies and that the cause of action accrued in 1880 and at several times thereafter beyond the six years contemplated by that Article.The answer here is that, S. 10, Limitation Act applies : The proviso saysthe purpose of this section any property comprised in a ............ Muhamadan ................. religious or charitable endowment shall be deemed to be property vested in trust for a specific purpose, and the manager of any such property shall be deemed to be the trustee thereof." Therefore, no. question of limitation can arise in respect of those parts of the property in dispute which, according to our finding, are now comprised in the wakf estate. | 1 | 7,675 | 4,916 | ### Instruction:
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a title adverse to the trust or be allowed to make a benefit out of the trust for his own personal ends.54. This applies equally to Room A. In its origin it was separate and severable from the mosque and so could have been regarded as distinct from it even though it was constructed by a Mutwalli. But the inside walls that separated it from the mosque were pulled down in 1908 and the old mosque was extended into it so that the room now forms an integral part of the old mosque. That made it an accretion to the mosque, and as the Muslim public have been using it ever since for religious purposes along with the mosque proper, dedication by the defendant must be presumed despite his claim that the old mosque was part of his private estate. He was making these claims as late as 1921 and 1927. In 1921 he sued a third party who claimed to be the Mutwalli for the key of the mosque and in 1927 he was the defendant in a suit instituted under S. 92 Civil P. C. in which he set up that claim as an answer to the suit. But his assertions in 1921 and 1927 cannot outweigh his conduct in 1908 so far as room A is concerned.55. The portion of the land marked A-1 in the plaint map is a yard. There is no. evidence of public user of this part of the property for a religious purpose. All that can be said about it is that worshippers in the mosque pass over this plot to obtain ingress to the mosque. The map, Ex. D-43 shows that there is no. other access. There is some oral evidence to the effect that prayers are occasionally offered there at a funeral but the same evidence shows that that is also done on the road, so that king of user is not enough to indicate dedication.56. The same applies to the portion marked A-6. The defendant has let this out to Government and in the lease (Ex. D-40 dates 25-6-1935) he claims to be the ostensible owner, and it is admitted that he collects and keeps the rent. There is no. clear evidence of long and uninterrupted public user. Some witnesses say that the worshippers sometimes overflow into the land and that prayers are sometimes said there over dead bodies at funerals. We do not think that is enough to indicate dedication.57. After a careful survey of the evidence, we have reached the following conclusions :(1) that the old mosque as it stood in 1880 is proved to be wakf property but that nothing beyond the building and the site on which it stood is shown to have been wakf at that date;(2) that this property has been added to from time to time and the whole is now separately demarcated and that the additions and accretions from a composite and separate entity as shown in the plaintiffs map. This is the area marked ABCD in that map;(3) that this area is used by the public for religious purposes along with the old mosque and as the area has been made into a separately demarcated compact unit for a single purpose, namely collective and individual worship in the mosque, it must be regarded as one unit and be treated as such. The whole is accordingly now wakf.(4) that the accretions were made by Gulab Shah and the defendant both of whom claimed to be Mutawalli of the mosque;(5) that this area also includes the shops and chabutra shown to the west of the mosque in the plaint map on a triangular piece of land;(6) that the urinal, water pipe and bathroom were constructed for the use of the worshippers and so must be regarded as an adjunct of the wakf;(7) that the rest of the property in suit is not shown to be wakf or accretions to the wakf estate. It is separately demarcated and severable from the wakf portion ABCD and the shops to the west of the mosque;(8) that the worshippers at the mosque have a right of way as an easement over the plot A- 1 to obtain ingress to and egress from the mosque, and also a right of way to the urinals, the water tap and the bathroom.58. There remain for consideration the plea of res judicata and limitation raised by the learned counsel for the defendant.59. So far as res judicata is concerned, the argument is that the Muslim community sued Gulab Shah in 1880 for the whole of the present property and as their suit was dismissed in toto Explanation V to S. 11, Civil P. C. applies.60. We need not go into this question because it is now admitted, and was so found in the 1880 litigation, that the old mosque was wakf property. It can be assumed that the rest was not wakf at that date and indeed that is also our conclusion on a review of the evidence. But much happened since the 1880 litigation and there have been subsequent additions and accretions to the original estate so that now the whole of those additions and accretions form part and parcel of the original wakf.61. On the point of limitation, it was contended that Art. 120, Limitation Act applies and that the cause of action accrued in 1880 and at several times thereafter beyond the six years contemplated by that Article. The answer here is that, S. 10, Limitation Act applies : The proviso says that-"For the purpose of this section any property comprised in a ............ Muhamadan ................. religious or charitable endowment shall be deemed to be property vested in trust for a specific purpose, and the manager of any such property shall be deemed to be the trustee thereof." Therefore, no. question of limitation can arise in respect of those parts of the property in dispute which, according to our finding, are now comprised in the wakf estate.
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be estopped from adopting any other attitude because no. trustee can be allowed to set up a title adverse to the trust or be allowed to make a benefit out of the trust for his own personal ends.54. This applies equally to Room A. In its origin it was separate and severable from the mosque and so could have been regarded as distinct from it even though it was constructed by a Mutwalli. But the inside walls that separated it from the mosque were pulled down in 1908 and the old mosque was extended into it so that the room now forms an integral part of the old mosque. That made it an accretion to the mosque, and as the Muslim public have been using it ever since for religious purposes along with the mosque proper, dedication by the defendant must be presumed despite his claim that the old mosque was part of his private estate. He was making these claims as late as 1921 and 1927. In 1921 he sued a third party who claimed to be the Mutwalli for the key of the mosque and in 1927 he was the defendant in a suit instituted under S. 92 Civil P. C. in which he set up that claim as an answer to the suit. But his assertions in 1921 and 1927 cannot outweigh his conduct in 1908 so far as room A is concerned.55. The portion of the land markedin the plaint map is a yard. There is no. evidence of public user of this part of the property for a religious purpose. All that can be said about it is that worshippers in the mosque pass over this plot to obtain ingress to the mosque. The map, Ex.shows that there is no. other access. There is some oral evidence to the effect that prayers are occasionally offered there at a funeral but the same evidence shows that that is also done on the road, so that king of user is not enough to indicate dedication.56. The same applies to the portion markedThe defendant has let this out to Government and in the lease (Ex.5) he claims to be the ostensible owner, and it is admitted that he collects and keeps the rent. There is no. clear evidence of long and uninterrupted public user. Some witnesses say that the worshippers sometimes overflow into the land and that prayers are sometimes said there over dead bodies at funerals. We do not think that is enough to indicate dedication.57. After a careful survey of the evidence, we have reached the following conclusions :(1) that the old mosque as it stood in 1880 is proved to be wakf property but that nothing beyond the building and the site on which it stood is shown to have been wakf at that date;(2) that this property has been added to from time to time and the whole is now separately demarcated and that the additions and accretions from a composite and separate entity as shown in the plaintiffs map. This is the area marked ABCD in that map;(3) that this area is used by the public for religious purposes along with the old mosque and as the area has been made into a separately demarcated compact unit for a single purpose, namely collective and individual worship in the mosque, it must be regarded as one unit and be treated as such. The whole is accordingly now wakf.(4) that the accretions were made by Gulab Shah and the defendant both of whom claimed to be Mutawalli of the mosque;(5) that this area also includes the shops and chabutra shown to the west of the mosque in the plaint map on a triangular piece of land;(6) that the urinal, water pipe and bathroom were constructed for the use of the worshippers and so must be regarded as an adjunct of the wakf;(7) that the rest of the property in suit is not shown to be wakf or accretions to the wakf estate. It is separately demarcated and severable from the wakf portion ABCD and the shops to the west of the mosque;(8) that the worshippers at the mosque have a right of way as an easement over the plot A1 to obtain ingress to and egress from the mosque, and also a right of way to the urinals, the water tap and the bathroom.There remain for consideration the plea of res judicata and limitation raised by the learned counsel for the defendant.So far as res judicata is concerned, the argument is that the Muslim community sued Gulab Shah in 1880 for the whole of the present property and as their suit was dismissed in toto Explanation V to S. 11, Civil P. C. applies.60. We need not go into this question because it is now admitted, and was so found in the 1880 litigation, that the old mosque was wakf property. It can be assumed that the rest was not wakf at that date and indeed that is also our conclusion on a review of the evidence. But much happened since the 1880 litigation and there have been subsequent additions and accretions to the original estate so that now the whole of those additions and accretions form part and parcel of the original wakf.61.On the point of limitation, it was contended that Art. 120, Limitation Act applies and that the cause of action accrued in 1880 and at several times thereafter beyond the six years contemplated by that Article.The answer here is that, S. 10, Limitation Act applies : The proviso saysthe purpose of this section any property comprised in a ............ Muhamadan ................. religious or charitable endowment shall be deemed to be property vested in trust for a specific purpose, and the manager of any such property shall be deemed to be the trustee thereof." Therefore, no. question of limitation can arise in respect of those parts of the property in dispute which, according to our finding, are now comprised in the wakf estate.
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Commissioner of Income-Tax-2 Vs. Tata Autocomp Systems Limited | correct in directing the Assessing Officer to benchmark the interest at prevailing EURIBOR rate instead of rupee loan rate to compute the Arms Length interest on the loan amounting to EURO 20,50,000 advanced by the assessee to its AE, ignoring the fact that EURIBOR does not govern the monetary markets or interest rates in India, which is the residence country of assessee and EURIBOR rate is not applicable to the loans for which foreign currency has to be purchased by the Lender as in assessees case (c) Whether on the facts and in the circumstances of the case and in law, the Tribunal was correct in deleting the adjustment made by the TPO at Rs. 1,50,56,737/- applying 10.25% rate of interest per annum to the interest free loan advanced by the assessee to the AE taking into account the prevalent domestic rate of interest payable on working capital loan and which govern the lending and borrowing market in India (d) Whether on the facts and in the circumstances of the case and in law, the Tribunal was correct in relying on the RBI circular pertaining to advancement of pre-shipment export credit and re-discounting of export bills permitting banks to fix interest rates with reference to LIBOR, EURIBOR etc. to justify assessees claim to fix interest rate as per EURIBOR rate, overlooking the fact that RBI circular refers to credit facilities allowed to Indian exporters by Indian banks which cannot be compared to the out bound loan to AE and additionally where conversion of rupee into Euro is through purchase of forex (e) Whether on the facts and in the circumstances of the case and in law, and without prejudice to the other grounds, the Tribunal was correct in not appreciating the fact that the domestic lending company has to carry out a number of risk adjustments to fix the rate of interest on the loans advanced to a foreign entity in an uncontrolled scenario irrespective of base interest EURIBOR "3. The respondent - assessee is engaged in the business of manufacturing of plastic parts and rendering engineering services. The respondent - assessee had advanced an amount of Euro 26.25 lakhs to its wholly owned subsidiary in Germany. The respondent-assessee charged no interest on the above loan. However, during the course of examination of respondent - assessees international transaction with its subsidiary company i.e. Associated Enterprises, Transfer Pricing Officer (TPO) determined the Arms Length Price (ALP) i.e. interest on the loan advanced by the respondent - assessee to its German subsidiary at 10.25%. This measure of rate of interest was on the basis of lending rate charged by the banks in India. The Assessing Officer passed a draft assessment order in line with the order of the TPO.4. Being aggrieved, the respondent - assessee carried the draft assessment order to Dispute Resolution Panel (DRP) The DRP enhanced ALP i.e. the interest on the loan given by the respondent-assessee to its German Associate Enterprise to 12%. Consequent to the directions of DRP, the Assessing Officer by an assessment order dated 19.9.2011 charged interest of Rs. 1.76 crores on the above account as a part of the respondent-assessees income.5. Being aggrieved, the respondent - assessee preferred an appeal to the Tribunal. The Tribunal by the impugned order held :(a) that the interest free loan extended by a company to its Associate Enterprise comes within the ambit of International Transaction and issue to be examined in such a case would be the ALP of such an International Transactions; and(b) With regard to quantum of addition on account of interest by ALP the impugned order held that as the amounts were advanced to Associated Enterprises in Germany, the rate of interest is to be determined on EURIBOR rate of interest i.e. rates prevailing in Europe. Thus partly allowed the respondent-assessees appeal by applying the decision of the Tribunal in the case of "VVF Ltd. v. DCIT [ITA No.673/Mum/06]" and "Dy. CIT v. Tech Mahindra Ltd. [2011] 46 SOT 141(Mum.)(URO)" by holding that the loan advanced to an Associate Enterprise situated abroad, the rate of interest to be applied is the rate prevailing in the country where the loan has been consumed.6. Mr. Pardiwala, learned Senior Advocate for the respondent-assessee pointed out that although they have raised an issue of transaction not being international transaction, before the Tribunal, the respondent - assessee has in the facts of the present case chosen not to assail the order of the Tribunal on the above account. In view of the above, there is no occasion for us to express our opinion on the above issue.7. We find that the impugned order of the Tribunal inter alia has followed the decisions of the Bombay Bench of the Tribunal in cases of VVF Ltd. v. Dy. CIT [IT Appeal No. 673 (Mum.) of 2006] and Dy. CIT v. Tech Mahindra Ltd. [2011] 12 taxmann.com 132/46 SOT 141 (Mum.) (URO) to reach the conclusion that ALP in the case of loans advanced to Associate Enterprises would be determined on the basis of rate of interest being charged in the country where the loan is received/consumed. Mr. Suresh Kumar the learned counsel for the revenue informed us that the Revenue has not preferred any appeal against the decision of the Tribunal in VVF Ltd. (supra) and Tech Mahindra Ltd. (supra) on the above issue. No reason has been shown to us as to why the Revenue seeks to take a different view in respect of the impugned order from that taken in VVF Ltd. (supra) and Tech Mahindra Ltd. (supra). The Revenue not having filed any appeal, has in fact accepted the decision of the Tribunal in VVF Ltd. (supra) and Tech Mahindra Ltd. (supra).8. In view of the above we see no reason to entertain the present appeal as in similar matters the Revenue has accepted the view of the Tribunal which has been relied upon by the impugned order. Accordingly, we see no reason to entertain the proposed questions of law. | 0[ds]In view of the above, there is no occasion for us to express our opinion on the above issue.7. We find that the impugned order of the Tribunal inter alia has followed the decisions of the Bombay Bench of the Tribunal in cases of VVF Ltd. v. Dy. CIT [IT Appeal No. 673 (Mum.) of 2006] and Dy. CIT v. Tech Mahindra Ltd. [2011] 12 taxmann.com 132/46 SOT 141 (Mum.) (URO) to reach the conclusion that ALP in the case of loans advanced to Associate Enterprises would be determined on the basis of rate of interest being charged in the country where the loan is received/consumed. Mr. Suresh Kumar the learned counsel for the revenue informed us that the Revenue has not preferred any appeal against the decision of the Tribunal in VVF Ltd. (supra) and Tech Mahindra Ltd. (supra) on the above issue. No reason has been shown to us as to why the Revenue seeks to take a different view in respect of the impugned order from that taken in VVF Ltd. (supra) and Tech Mahindra Ltd. (supra). The Revenue not having filed any appeal, has in fact accepted the decision of the Tribunal in VVF Ltd. (supra) and Tech Mahindra Ltd. (supra).8. In view of the above we see no reason to entertain the present appeal as in similar matters the Revenue has accepted the view of the Tribunal which has been relied upon by the impugned order. Accordingly, we see no reason to entertain the proposed questions of law. | 0 | 1,268 | 295 | ### Instruction:
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correct in directing the Assessing Officer to benchmark the interest at prevailing EURIBOR rate instead of rupee loan rate to compute the Arms Length interest on the loan amounting to EURO 20,50,000 advanced by the assessee to its AE, ignoring the fact that EURIBOR does not govern the monetary markets or interest rates in India, which is the residence country of assessee and EURIBOR rate is not applicable to the loans for which foreign currency has to be purchased by the Lender as in assessees case (c) Whether on the facts and in the circumstances of the case and in law, the Tribunal was correct in deleting the adjustment made by the TPO at Rs. 1,50,56,737/- applying 10.25% rate of interest per annum to the interest free loan advanced by the assessee to the AE taking into account the prevalent domestic rate of interest payable on working capital loan and which govern the lending and borrowing market in India (d) Whether on the facts and in the circumstances of the case and in law, the Tribunal was correct in relying on the RBI circular pertaining to advancement of pre-shipment export credit and re-discounting of export bills permitting banks to fix interest rates with reference to LIBOR, EURIBOR etc. to justify assessees claim to fix interest rate as per EURIBOR rate, overlooking the fact that RBI circular refers to credit facilities allowed to Indian exporters by Indian banks which cannot be compared to the out bound loan to AE and additionally where conversion of rupee into Euro is through purchase of forex (e) Whether on the facts and in the circumstances of the case and in law, and without prejudice to the other grounds, the Tribunal was correct in not appreciating the fact that the domestic lending company has to carry out a number of risk adjustments to fix the rate of interest on the loans advanced to a foreign entity in an uncontrolled scenario irrespective of base interest EURIBOR "3. The respondent - assessee is engaged in the business of manufacturing of plastic parts and rendering engineering services. The respondent - assessee had advanced an amount of Euro 26.25 lakhs to its wholly owned subsidiary in Germany. The respondent-assessee charged no interest on the above loan. However, during the course of examination of respondent - assessees international transaction with its subsidiary company i.e. Associated Enterprises, Transfer Pricing Officer (TPO) determined the Arms Length Price (ALP) i.e. interest on the loan advanced by the respondent - assessee to its German subsidiary at 10.25%. This measure of rate of interest was on the basis of lending rate charged by the banks in India. The Assessing Officer passed a draft assessment order in line with the order of the TPO.4. Being aggrieved, the respondent - assessee carried the draft assessment order to Dispute Resolution Panel (DRP) The DRP enhanced ALP i.e. the interest on the loan given by the respondent-assessee to its German Associate Enterprise to 12%. Consequent to the directions of DRP, the Assessing Officer by an assessment order dated 19.9.2011 charged interest of Rs. 1.76 crores on the above account as a part of the respondent-assessees income.5. Being aggrieved, the respondent - assessee preferred an appeal to the Tribunal. The Tribunal by the impugned order held :(a) that the interest free loan extended by a company to its Associate Enterprise comes within the ambit of International Transaction and issue to be examined in such a case would be the ALP of such an International Transactions; and(b) With regard to quantum of addition on account of interest by ALP the impugned order held that as the amounts were advanced to Associated Enterprises in Germany, the rate of interest is to be determined on EURIBOR rate of interest i.e. rates prevailing in Europe. Thus partly allowed the respondent-assessees appeal by applying the decision of the Tribunal in the case of "VVF Ltd. v. DCIT [ITA No.673/Mum/06]" and "Dy. CIT v. Tech Mahindra Ltd. [2011] 46 SOT 141(Mum.)(URO)" by holding that the loan advanced to an Associate Enterprise situated abroad, the rate of interest to be applied is the rate prevailing in the country where the loan has been consumed.6. Mr. Pardiwala, learned Senior Advocate for the respondent-assessee pointed out that although they have raised an issue of transaction not being international transaction, before the Tribunal, the respondent - assessee has in the facts of the present case chosen not to assail the order of the Tribunal on the above account. In view of the above, there is no occasion for us to express our opinion on the above issue.7. We find that the impugned order of the Tribunal inter alia has followed the decisions of the Bombay Bench of the Tribunal in cases of VVF Ltd. v. Dy. CIT [IT Appeal No. 673 (Mum.) of 2006] and Dy. CIT v. Tech Mahindra Ltd. [2011] 12 taxmann.com 132/46 SOT 141 (Mum.) (URO) to reach the conclusion that ALP in the case of loans advanced to Associate Enterprises would be determined on the basis of rate of interest being charged in the country where the loan is received/consumed. Mr. Suresh Kumar the learned counsel for the revenue informed us that the Revenue has not preferred any appeal against the decision of the Tribunal in VVF Ltd. (supra) and Tech Mahindra Ltd. (supra) on the above issue. No reason has been shown to us as to why the Revenue seeks to take a different view in respect of the impugned order from that taken in VVF Ltd. (supra) and Tech Mahindra Ltd. (supra). The Revenue not having filed any appeal, has in fact accepted the decision of the Tribunal in VVF Ltd. (supra) and Tech Mahindra Ltd. (supra).8. In view of the above we see no reason to entertain the present appeal as in similar matters the Revenue has accepted the view of the Tribunal which has been relied upon by the impugned order. Accordingly, we see no reason to entertain the proposed questions of law.
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In view of the above, there is no occasion for us to express our opinion on the above issue.7. We find that the impugned order of the Tribunal inter alia has followed the decisions of the Bombay Bench of the Tribunal in cases of VVF Ltd. v. Dy. CIT [IT Appeal No. 673 (Mum.) of 2006] and Dy. CIT v. Tech Mahindra Ltd. [2011] 12 taxmann.com 132/46 SOT 141 (Mum.) (URO) to reach the conclusion that ALP in the case of loans advanced to Associate Enterprises would be determined on the basis of rate of interest being charged in the country where the loan is received/consumed. Mr. Suresh Kumar the learned counsel for the revenue informed us that the Revenue has not preferred any appeal against the decision of the Tribunal in VVF Ltd. (supra) and Tech Mahindra Ltd. (supra) on the above issue. No reason has been shown to us as to why the Revenue seeks to take a different view in respect of the impugned order from that taken in VVF Ltd. (supra) and Tech Mahindra Ltd. (supra). The Revenue not having filed any appeal, has in fact accepted the decision of the Tribunal in VVF Ltd. (supra) and Tech Mahindra Ltd. (supra).8. In view of the above we see no reason to entertain the present appeal as in similar matters the Revenue has accepted the view of the Tribunal which has been relied upon by the impugned order. Accordingly, we see no reason to entertain the proposed questions of law.
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Ashapura Mine-Chem Ltd Vs. Gujarat Mineral Devlopment Corporation | the conditions for appointing an arbitrator under Section 11(6) of the Act. For the purpose of taking a decision on these aspects, the Chief Justice can either proceed on the basis of affidavits and the documents produced or take such evidence or get such evidence recorded, as may be necessary. We think that adoption of this procedure in the context of the Act would best serve the purpose sought to be achieved by the Act of expediting the process of arbitration, without too many approaches to the court at various stages of the proceedings before the Arbitral Tribunal.***47. (iv) The Chief Justice or the Designated Judge will have the right to decide the preliminary aspects as indicated in the earlier part of this judgment. These will be his own jurisdiction to entertain the request, the existence of a valid arbitration agreement, the existence or otherwise of a live claim, the existence of the condition for the exercise of his power and on the qualifications of the arbitrator or arbitrators.” 28. Having gone through the said paragraphs, we do not find any position in law contrary to what has been stated in Today Homes and Infrastructure Pvt. Ltd. (supra), Reva Electrical Car Company Private Ltd. (supra) and Enercon (India) Limited (supra). 29. Similarly, the reliance placed upon in Chloro Controls India Pvt. Ltd. (supra) also does not in any manner dislodge the legal position relating to the stand alone Arbitration Clause in a substantive transaction recorded in writing. Therefore, we do not find any useful purpose by referring to the said decision as well. 30. Having thus ascertained the legal position regarding the stand alone agreement relating to arbitration with particular reference to arbitration agreement in a legal transaction between the parties, when we refer to Clause 27 of the MoU, we wish to find out whether the said Clause satisfies the principles set down and applicable to a stand alone Arbitration Agreement. When we refer to Clause 27, we find that in the event of failure of an amicable settlement at the bilateral level relating to a dispute or difference arising between the appellant and the respondent to be reached as contained in Clause 26 of the MoU, then such unresolved dispute or difference concerning or arising from the MoU, its implementation breach or termination whatsoever including any difference or dispute as to the interpretation of any of the terms of the MoU is referable to the sole Arbitrator appointed by the appellant and the respondent. Therefore, irrespective of the question or as to the fact whether the MoU fructified into a full-fledged agreement, having regard to the non-fulfilment of any of the conditions or failure of compliance of any requirement by either of the parties stipulated in the other Clauses of MoU, specific agreement has been entered into by the appellant and the respondent under Clause 27 to refer such controversies as between the parties to the sole arbitrator by consensus. Therefore, when consensus was not reached as between the parties for making the reference, eventually it will be open for either of the parties to invoke Section 11 of the Act and seek for reference of the dispute for arbitration. 31. In the case on hand, as we have noted earlier, after the signing of the MoU on 17.8.2007, the Board of Directors of the Respondent passed a Resolution on 29.10.2007 which expressed its approval to the MoU, subject, however, to modification of the conditions. Thereafter, correspondence exchanged between the parties from 17.12.2007 to 10.03.2010. There was a subsequent Board Resolution of the respondent on 18.03.2010 which stated that the Board took a decision that it was not inclined to extend the validity of proposed MoU due to change in the mineral policy of the State Government. However, on 26.07.2010, the respondent informed the appellant that to maintain parity, necessary modification in the terms and conditions of the MoU dated 17.8.2007 was communicated to the State Government for approval which was awaited and that on receipt of such approval, a fresh MoU can be executed. Thereafter, by communication dated 25.4.2011, the respondent categorically informed the appellant that it decided to forthwith cancel the MoU dated 17.8.2007 alleging fault on the side of the appellant with regard to failure to comply with the various terms and conditions of the MoU. Thus, from the above referred to sequence of events which occurred between 17.8.2007 and 25.4.2011, it is crystal clear that both parties were at variance with reference to the various terms and conditions contained in the MoU and consequently there was every right in either of the parties to seek for an amicable settlement in the first instance as specified in Clause 26 of the MoU.32. We find from the materials on record that the appellant in its letter dated 11.07.2011 addressed to respondent expressed its desire to amicably resolve the dispute at the bilateral level. Since there was no response from the respondent, the appellant caused a legal notice on 07.12.2012 by invoking Clause 27 of the MoU for appointment of an Arbitrator and also suggested the name of a retired High Court Judge and sought for the concurrence of the respondent. In the legal notice, the appellant specifically intimated that in the event of the respondent failing to express its concurrence for the appointment of the named Arbitrator, it will have no other option but to move the High Court under Section 11 of the Act. The respondent having made it clear in its reply dated 04.01.2013 to the lawyer’s notice stating that it was not inclined to agree for a reference, the appellant had no other option except to move the High Court by filing an application under Section 11 of the Act.33. Having noted the above factors and inasmuch as we are convinced that Clause 27 is a valid arbitration agreement contained in the MoU dated 17.8.2007, the appellant was fully entitled to invoke the said agreement and seek for a reference to the Arbitrator. | 0[ds]we find that the sum and substance of the submission of Mr. Dushyant Dave was that the arbitration Clause contained in Clause 27 of the MoU was an independent arbitration agreement and, therefore, even if respondent chose to terminate the MoU dated 17.8.2007, the Arbitration agreement would continue to remain and consequently the parties are entitled to invoke the said Clause 27 and exercise their option for appointment of an Arbitrator and seek for concurrence of the other party. The learned senior counsel contended that since the respondent expressed its decision to terminate the MoU, the appellant after exhausting its attempt for an amicable settlement at bilateral level as between the appellant and the respondent by invoking Clause 26 had no other option but to invoke Clause 27 and opt for the appointment of a retired JudgeMr. Justice B.N. Mehta as an Arbitrator and sought for the concurrence of the respondent. The learned senior counsel submitted that when the respondent refused to concur with the appointment of the said learned Judge as an Arbitrator, the appellant was well justified in approaching the High Court under Section 11 for the appointment of an Arbitrator. The learned senior counsel, therefore, contended that the rejection of the said application filed under Section 11 of the Act by the impugned order is liable to be set aside and an Arbitrator has to be appointed.As against the above submissions, it was contended on behalf of the respondent in the said decision that even if the existence of the main contract is under dispute, the Court is concerned only with the arbitration agreement, i.e. the arbitration clause and that when once such a Clause is very much present, that would by itself result in the matter being referable for arbitration. In fact, in the said case, the Clause relating to arbitration was found in Clause No.18.1 which provided for an attempt to resolve the dispute, controversy or difference through mutual consultation and if it is not resolved through mutual consultation within 30 days after commencement of discussion, then the parties may refer the dispute, controversy or difference for resolution to an Arbitral Tribunal.In the case on hand, as we have noted earlier, after the signing of the MoU on 17.8.2007, the Board of Directors of the Respondent passed a Resolution on 29.10.2007 which expressed its approval to the MoU, subject, however, to modification of the conditions. Thereafter, correspondence exchanged between the parties from 17.12.2007 to 10.03.2010. There was a subsequent Board Resolution of the respondent on 18.03.2010 which stated that the Board took a decision that it was not inclined to extend the validity of proposed MoU due to change in the mineral policy of the State Government. However, on 26.07.2010, the respondent informed the appellant that to maintain parity, necessary modification in the terms and conditions of the MoU dated 17.8.2007 was communicated to the State Government for approval which was awaited and that on receipt of such approval, a fresh MoU can be executed. Thereafter, by communication dated 25.4.2011, the respondent categorically informed the appellant that it decided to forthwith cancel the MoU dated 17.8.2007 alleging fault on the side of the appellant with regard to failure to comply with the various terms and conditions of the MoU. Thus, from the above referred to sequence of events which occurred between 17.8.2007 and 25.4.2011, it is crystal clear that both parties were at variance with reference to the various terms and conditions contained in the MoU and consequently there was every right in either of the parties to seek for an amicable settlement in the first instance as specified in Clause 26 of the MoU.32. We find from the materials on record that the appellant in its letter dated 11.07.2011 addressed to respondent expressed its desire to amicably resolve the dispute at the bilateral level. Since there was no response from the respondent, the appellant caused a legal notice on 07.12.2012 by invoking Clause 27 of the MoU for appointment of an Arbitrator and also suggested the name of a retired High Court Judge and sought for the concurrence of the respondent. In the legal notice, the appellant specifically intimated that in the event of the respondent failing to express its concurrence for the appointment of the named Arbitrator, it will have no other option but to move the High Court under Section 11 of the Act. The respondent having made it clear in its reply dated 04.01.2013 to thenotice stating that it was not inclined to agree for a reference, the appellant had no other option except to move the High Court by filing an application under Section 11 of the Act.33. Having noted the above factors and inasmuch as we are convinced that Clause 27 is a valid arbitration agreement contained in the MoU dated 17.8.2007, the appellant was fully entitled to invoke the said agreement and seek for a reference to the Arbitrator. | 0 | 5,541 | 879 | ### 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:
the conditions for appointing an arbitrator under Section 11(6) of the Act. For the purpose of taking a decision on these aspects, the Chief Justice can either proceed on the basis of affidavits and the documents produced or take such evidence or get such evidence recorded, as may be necessary. We think that adoption of this procedure in the context of the Act would best serve the purpose sought to be achieved by the Act of expediting the process of arbitration, without too many approaches to the court at various stages of the proceedings before the Arbitral Tribunal.***47. (iv) The Chief Justice or the Designated Judge will have the right to decide the preliminary aspects as indicated in the earlier part of this judgment. These will be his own jurisdiction to entertain the request, the existence of a valid arbitration agreement, the existence or otherwise of a live claim, the existence of the condition for the exercise of his power and on the qualifications of the arbitrator or arbitrators.” 28. Having gone through the said paragraphs, we do not find any position in law contrary to what has been stated in Today Homes and Infrastructure Pvt. Ltd. (supra), Reva Electrical Car Company Private Ltd. (supra) and Enercon (India) Limited (supra). 29. Similarly, the reliance placed upon in Chloro Controls India Pvt. Ltd. (supra) also does not in any manner dislodge the legal position relating to the stand alone Arbitration Clause in a substantive transaction recorded in writing. Therefore, we do not find any useful purpose by referring to the said decision as well. 30. Having thus ascertained the legal position regarding the stand alone agreement relating to arbitration with particular reference to arbitration agreement in a legal transaction between the parties, when we refer to Clause 27 of the MoU, we wish to find out whether the said Clause satisfies the principles set down and applicable to a stand alone Arbitration Agreement. When we refer to Clause 27, we find that in the event of failure of an amicable settlement at the bilateral level relating to a dispute or difference arising between the appellant and the respondent to be reached as contained in Clause 26 of the MoU, then such unresolved dispute or difference concerning or arising from the MoU, its implementation breach or termination whatsoever including any difference or dispute as to the interpretation of any of the terms of the MoU is referable to the sole Arbitrator appointed by the appellant and the respondent. Therefore, irrespective of the question or as to the fact whether the MoU fructified into a full-fledged agreement, having regard to the non-fulfilment of any of the conditions or failure of compliance of any requirement by either of the parties stipulated in the other Clauses of MoU, specific agreement has been entered into by the appellant and the respondent under Clause 27 to refer such controversies as between the parties to the sole arbitrator by consensus. Therefore, when consensus was not reached as between the parties for making the reference, eventually it will be open for either of the parties to invoke Section 11 of the Act and seek for reference of the dispute for arbitration. 31. In the case on hand, as we have noted earlier, after the signing of the MoU on 17.8.2007, the Board of Directors of the Respondent passed a Resolution on 29.10.2007 which expressed its approval to the MoU, subject, however, to modification of the conditions. Thereafter, correspondence exchanged between the parties from 17.12.2007 to 10.03.2010. There was a subsequent Board Resolution of the respondent on 18.03.2010 which stated that the Board took a decision that it was not inclined to extend the validity of proposed MoU due to change in the mineral policy of the State Government. However, on 26.07.2010, the respondent informed the appellant that to maintain parity, necessary modification in the terms and conditions of the MoU dated 17.8.2007 was communicated to the State Government for approval which was awaited and that on receipt of such approval, a fresh MoU can be executed. Thereafter, by communication dated 25.4.2011, the respondent categorically informed the appellant that it decided to forthwith cancel the MoU dated 17.8.2007 alleging fault on the side of the appellant with regard to failure to comply with the various terms and conditions of the MoU. Thus, from the above referred to sequence of events which occurred between 17.8.2007 and 25.4.2011, it is crystal clear that both parties were at variance with reference to the various terms and conditions contained in the MoU and consequently there was every right in either of the parties to seek for an amicable settlement in the first instance as specified in Clause 26 of the MoU.32. We find from the materials on record that the appellant in its letter dated 11.07.2011 addressed to respondent expressed its desire to amicably resolve the dispute at the bilateral level. Since there was no response from the respondent, the appellant caused a legal notice on 07.12.2012 by invoking Clause 27 of the MoU for appointment of an Arbitrator and also suggested the name of a retired High Court Judge and sought for the concurrence of the respondent. In the legal notice, the appellant specifically intimated that in the event of the respondent failing to express its concurrence for the appointment of the named Arbitrator, it will have no other option but to move the High Court under Section 11 of the Act. The respondent having made it clear in its reply dated 04.01.2013 to the lawyer’s notice stating that it was not inclined to agree for a reference, the appellant had no other option except to move the High Court by filing an application under Section 11 of the Act.33. Having noted the above factors and inasmuch as we are convinced that Clause 27 is a valid arbitration agreement contained in the MoU dated 17.8.2007, the appellant was fully entitled to invoke the said agreement and seek for a reference to the Arbitrator.
### Response:
0
### Explanation:
we find that the sum and substance of the submission of Mr. Dushyant Dave was that the arbitration Clause contained in Clause 27 of the MoU was an independent arbitration agreement and, therefore, even if respondent chose to terminate the MoU dated 17.8.2007, the Arbitration agreement would continue to remain and consequently the parties are entitled to invoke the said Clause 27 and exercise their option for appointment of an Arbitrator and seek for concurrence of the other party. The learned senior counsel contended that since the respondent expressed its decision to terminate the MoU, the appellant after exhausting its attempt for an amicable settlement at bilateral level as between the appellant and the respondent by invoking Clause 26 had no other option but to invoke Clause 27 and opt for the appointment of a retired JudgeMr. Justice B.N. Mehta as an Arbitrator and sought for the concurrence of the respondent. The learned senior counsel submitted that when the respondent refused to concur with the appointment of the said learned Judge as an Arbitrator, the appellant was well justified in approaching the High Court under Section 11 for the appointment of an Arbitrator. The learned senior counsel, therefore, contended that the rejection of the said application filed under Section 11 of the Act by the impugned order is liable to be set aside and an Arbitrator has to be appointed.As against the above submissions, it was contended on behalf of the respondent in the said decision that even if the existence of the main contract is under dispute, the Court is concerned only with the arbitration agreement, i.e. the arbitration clause and that when once such a Clause is very much present, that would by itself result in the matter being referable for arbitration. In fact, in the said case, the Clause relating to arbitration was found in Clause No.18.1 which provided for an attempt to resolve the dispute, controversy or difference through mutual consultation and if it is not resolved through mutual consultation within 30 days after commencement of discussion, then the parties may refer the dispute, controversy or difference for resolution to an Arbitral Tribunal.In the case on hand, as we have noted earlier, after the signing of the MoU on 17.8.2007, the Board of Directors of the Respondent passed a Resolution on 29.10.2007 which expressed its approval to the MoU, subject, however, to modification of the conditions. Thereafter, correspondence exchanged between the parties from 17.12.2007 to 10.03.2010. There was a subsequent Board Resolution of the respondent on 18.03.2010 which stated that the Board took a decision that it was not inclined to extend the validity of proposed MoU due to change in the mineral policy of the State Government. However, on 26.07.2010, the respondent informed the appellant that to maintain parity, necessary modification in the terms and conditions of the MoU dated 17.8.2007 was communicated to the State Government for approval which was awaited and that on receipt of such approval, a fresh MoU can be executed. Thereafter, by communication dated 25.4.2011, the respondent categorically informed the appellant that it decided to forthwith cancel the MoU dated 17.8.2007 alleging fault on the side of the appellant with regard to failure to comply with the various terms and conditions of the MoU. Thus, from the above referred to sequence of events which occurred between 17.8.2007 and 25.4.2011, it is crystal clear that both parties were at variance with reference to the various terms and conditions contained in the MoU and consequently there was every right in either of the parties to seek for an amicable settlement in the first instance as specified in Clause 26 of the MoU.32. We find from the materials on record that the appellant in its letter dated 11.07.2011 addressed to respondent expressed its desire to amicably resolve the dispute at the bilateral level. Since there was no response from the respondent, the appellant caused a legal notice on 07.12.2012 by invoking Clause 27 of the MoU for appointment of an Arbitrator and also suggested the name of a retired High Court Judge and sought for the concurrence of the respondent. In the legal notice, the appellant specifically intimated that in the event of the respondent failing to express its concurrence for the appointment of the named Arbitrator, it will have no other option but to move the High Court under Section 11 of the Act. The respondent having made it clear in its reply dated 04.01.2013 to thenotice stating that it was not inclined to agree for a reference, the appellant had no other option except to move the High Court by filing an application under Section 11 of the Act.33. Having noted the above factors and inasmuch as we are convinced that Clause 27 is a valid arbitration agreement contained in the MoU dated 17.8.2007, the appellant was fully entitled to invoke the said agreement and seek for a reference to the Arbitrator.
|
Skr Bpo Services Private Limited Vs. Income-Tax Officer-8(3)(2) | Thus the assessee has not reported the transaction of receiving an amount of Rs.64,59,38,591/- from M/s. Blackstone GPV Capital Partners Mauritius as an international transaction which is mandatory under the I. T. Act.The assessee has received premium of Rs.1,06,227/- per share from M/s. HDFC Ltd. whereas the assessee charged premium of Rs.56,642/- per share from its associate enterprise vis M/s. Blackstone GPV Capital Partners Mauritius during the same year. Thus the assessee has received huge premium per share from unrelated parties as against premium from related parties. Thus the transaction between the assessee and M/s. Blackstone GPV Capital Partners Mauritius is not at arms length price. The difference between the premium received from unrelated parties and associate enterprise requires adjustment on account of arms length price @ of Rs.49,585/- per shares. M/s. Blackstone GPV Capital Partners Mauritius had purchased 11,401/- which requires adjustment of Rs.56,53,18,585/- on account of arms length price. Thus the income chargeable to tax was under assesseed to the extent of Rs.56,53,18,585/- in the assessment order u/s. 143(3) passed on 28.10.2011 on account of transactions with related party not at arms length price.In view of the above facts, I have reasons to believe that the income chargeable to tax of Rs.56,56,18,585/- has escaped assessment within the meaning of the provisions of sec 147 of the I. T. Act for the A. Y. 2009-10. I hereby reopen the case of the assessee u/s 147 of the I. T. Act."5. The Petitioner by their letter dated 9th July, 2014 filed their objections to the reasons recorded in support of the impugned notice dated 31st March, 2014. In its objections, the Petitioner inter alia contended that the impugned notice has been issued on mere change of opinion and therefore, not valid. The Assessing Officer by an order dated 7th November, 2014 rejected the Petitioners objections on the ground that as the Petitioner had failed to file Form 3 CEB along with its return of income in respect of the International transaction with its Associated Enterprise viz. non-resident holding company, the Assessing Officer had not formed any opinion with regard to the Arms Length Price (ALP) of the shares issued by the Petitioner Company to its holding Company.6. Mr. Shah, learned Counsel appearing for the Petitioner states that the issue arising in the present proceeding stands concluded in favour of the Petitioner in view of Vodafone India Services (P.) Ltd. v. Union of India [2014] 368 ITR 1 /[2015] 228 Taxman 25 /[2014] 50 taxmann.com 300 (Bom.) This Court in Vodafone India Services (P.) Ltd. (supra) on identical facts has concluded that the issue of shares at premium to its holding company does not give rise to any income chargeable to tax. Thus, the Court has held that Chapter X of the Act would not apply.7. It appeared to us that the issue stands concluded. However, Mr. Pinto, learned Counsel appearing for the Revenue insist on opposing the Petition on the following grounds:(a) Assessing Officer is entitled to re-open assessment as there was failure on the part of the Petitioner to file Form 3 CEB, indicating an international transaction for the purpose of arriving at ALP in respect of issue of shares at premium to the Petitioner by its holding company;(b) Re-opening of assessment was done by the Assessing Officer by a notice dated 31st March, 2014. This was prior to the decision of this Court in Vodafone Services (supra) and, therefore, it is insisted that no fault can be found with the re-opening notice; and(c) The re-opening of the notice being done within four years from the end of the relevant Assessment Year. No interference is called for as the Assessing Officer has wide power to re-open an assessment within four years.8. We find that the issue arising in the present Petition namely seeking to bring to tax the share premium received by the Petitioner on issue of shares to its non-resident holding company stands covered by the decision of this Court in Vodafone India Services (P.) Ltd. (supra) in favour of the Petitioner. We are unable to appreciate the insistence on the part of the Revenue to persists with the re-opening notice dated 31st March, 2014 in the face of the decision of this Court in Vodafone India Services (P.) Ltd. (supra). In view of the decision of this Court in Vodafone India Services (P.) Ltd. (supra), there can be no reason to believe that income chargeable to tax has escaped assessment.9. In spite of the above, the Revenue insists on opposing the Petition. The failure to file Form 3 CEB would not by itself lead to the conclusion that there has been an escapement of income. In fact, the Petitioners understanding that the amount received on account of issue of shares to its holding company would not give rise to income chargeable to tax has been upheld by this Court in Vodafone India Services (P.) Ltd. (supra). In these circumstances, no fault can be found with the Petition or in not filing Form 3 CEB with its return of income.10. The other objections of Mr. Pinto is that the impugned notice for re-opening an assessment was issued before the decision was rendered in Vodafone India Services (P.) Ltd. (supra) and, therefore, valid is beyond our comprehension. The decision of this Court in Vodafone India Services (supra) has merely declared the law which stood at all times. Thus in the face of the decision of this Court in Vodafone India Services (supra), the impugned notice is unsustainable.11. The last submission of Mr. Pinto on behalf of the Revenue that powers of re-opening within a period of four years from the end of assessment year is very wide. This submission ignores the fact that even in cases of less than four years, there must be reason to believe that income chargeable to tax has escaped assessment. In the absence of condition precedent under Section 147 of the Act being satisfied, no notice for re-opening of an assessment can be sustained. | 1[ds]8. We find that the issue arising in the present Petition namely seeking to bring to tax the share premium received by the Petitioner on issue of shares to itsholding company stands covered by the decision of this Court in Vodafone India Services (P.) Ltd. (supra) in favour of the Petitioner. We are unable to appreciate the insistence on the part of the Revenue to persists with thenotice dated 31st March, 2014 in the face of the decision of this Court in Vodafone India Services (P.) Ltd. (supra). In view of the decision of this Court in Vodafone India Services (P.) Ltd. (supra), there can be no reason to believe that income chargeable to tax has escaped assessment.9. In spite of the above, the Revenue insists on opposing the Petition. The failure to file Form 3 CEB would not by itself lead to the conclusion that there has been an escapement of income. In fact, the Petitioners understanding that the amount received on account of issue of shares to its holding company would not give rise to income chargeable to tax has been upheld by this Court in Vodafone India Services (P.) Ltd. (supra). In these circumstances, no fault can be found with the Petition or in not filing Form 3 CEB with its return of income.10. The other objections of Mr. Pinto is that the impugned notice foran assessment was issued before the decision was rendered in Vodafone India Services (P.) Ltd. (supra) and, therefore, valid is beyond our comprehension. The decision of this Court in Vodafone India Services (supra) has merely declared the law which stood at all times. Thus in the face of the decision of this Court in Vodafone India Services (supra), the impugned notice is unsustainable.11. The last submission of Mr. Pinto on behalf of the Revenue that powers ofwithin a period of four years from the end of assessment year is very wide. This submission ignores the fact that even in cases of less than four years, there must be reason to believe that income chargeable to tax has escaped assessment. In the absence of condition precedent under Section 147 of the Act being satisfied, no notice forof an assessment can be sustained. | 1 | 1,622 | 421 | ### 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:
Thus the assessee has not reported the transaction of receiving an amount of Rs.64,59,38,591/- from M/s. Blackstone GPV Capital Partners Mauritius as an international transaction which is mandatory under the I. T. Act.The assessee has received premium of Rs.1,06,227/- per share from M/s. HDFC Ltd. whereas the assessee charged premium of Rs.56,642/- per share from its associate enterprise vis M/s. Blackstone GPV Capital Partners Mauritius during the same year. Thus the assessee has received huge premium per share from unrelated parties as against premium from related parties. Thus the transaction between the assessee and M/s. Blackstone GPV Capital Partners Mauritius is not at arms length price. The difference between the premium received from unrelated parties and associate enterprise requires adjustment on account of arms length price @ of Rs.49,585/- per shares. M/s. Blackstone GPV Capital Partners Mauritius had purchased 11,401/- which requires adjustment of Rs.56,53,18,585/- on account of arms length price. Thus the income chargeable to tax was under assesseed to the extent of Rs.56,53,18,585/- in the assessment order u/s. 143(3) passed on 28.10.2011 on account of transactions with related party not at arms length price.In view of the above facts, I have reasons to believe that the income chargeable to tax of Rs.56,56,18,585/- has escaped assessment within the meaning of the provisions of sec 147 of the I. T. Act for the A. Y. 2009-10. I hereby reopen the case of the assessee u/s 147 of the I. T. Act."5. The Petitioner by their letter dated 9th July, 2014 filed their objections to the reasons recorded in support of the impugned notice dated 31st March, 2014. In its objections, the Petitioner inter alia contended that the impugned notice has been issued on mere change of opinion and therefore, not valid. The Assessing Officer by an order dated 7th November, 2014 rejected the Petitioners objections on the ground that as the Petitioner had failed to file Form 3 CEB along with its return of income in respect of the International transaction with its Associated Enterprise viz. non-resident holding company, the Assessing Officer had not formed any opinion with regard to the Arms Length Price (ALP) of the shares issued by the Petitioner Company to its holding Company.6. Mr. Shah, learned Counsel appearing for the Petitioner states that the issue arising in the present proceeding stands concluded in favour of the Petitioner in view of Vodafone India Services (P.) Ltd. v. Union of India [2014] 368 ITR 1 /[2015] 228 Taxman 25 /[2014] 50 taxmann.com 300 (Bom.) This Court in Vodafone India Services (P.) Ltd. (supra) on identical facts has concluded that the issue of shares at premium to its holding company does not give rise to any income chargeable to tax. Thus, the Court has held that Chapter X of the Act would not apply.7. It appeared to us that the issue stands concluded. However, Mr. Pinto, learned Counsel appearing for the Revenue insist on opposing the Petition on the following grounds:(a) Assessing Officer is entitled to re-open assessment as there was failure on the part of the Petitioner to file Form 3 CEB, indicating an international transaction for the purpose of arriving at ALP in respect of issue of shares at premium to the Petitioner by its holding company;(b) Re-opening of assessment was done by the Assessing Officer by a notice dated 31st March, 2014. This was prior to the decision of this Court in Vodafone Services (supra) and, therefore, it is insisted that no fault can be found with the re-opening notice; and(c) The re-opening of the notice being done within four years from the end of the relevant Assessment Year. No interference is called for as the Assessing Officer has wide power to re-open an assessment within four years.8. We find that the issue arising in the present Petition namely seeking to bring to tax the share premium received by the Petitioner on issue of shares to its non-resident holding company stands covered by the decision of this Court in Vodafone India Services (P.) Ltd. (supra) in favour of the Petitioner. We are unable to appreciate the insistence on the part of the Revenue to persists with the re-opening notice dated 31st March, 2014 in the face of the decision of this Court in Vodafone India Services (P.) Ltd. (supra). In view of the decision of this Court in Vodafone India Services (P.) Ltd. (supra), there can be no reason to believe that income chargeable to tax has escaped assessment.9. In spite of the above, the Revenue insists on opposing the Petition. The failure to file Form 3 CEB would not by itself lead to the conclusion that there has been an escapement of income. In fact, the Petitioners understanding that the amount received on account of issue of shares to its holding company would not give rise to income chargeable to tax has been upheld by this Court in Vodafone India Services (P.) Ltd. (supra). In these circumstances, no fault can be found with the Petition or in not filing Form 3 CEB with its return of income.10. The other objections of Mr. Pinto is that the impugned notice for re-opening an assessment was issued before the decision was rendered in Vodafone India Services (P.) Ltd. (supra) and, therefore, valid is beyond our comprehension. The decision of this Court in Vodafone India Services (supra) has merely declared the law which stood at all times. Thus in the face of the decision of this Court in Vodafone India Services (supra), the impugned notice is unsustainable.11. The last submission of Mr. Pinto on behalf of the Revenue that powers of re-opening within a period of four years from the end of assessment year is very wide. This submission ignores the fact that even in cases of less than four years, there must be reason to believe that income chargeable to tax has escaped assessment. In the absence of condition precedent under Section 147 of the Act being satisfied, no notice for re-opening of an assessment can be sustained.
### Response:
1
### Explanation:
8. We find that the issue arising in the present Petition namely seeking to bring to tax the share premium received by the Petitioner on issue of shares to itsholding company stands covered by the decision of this Court in Vodafone India Services (P.) Ltd. (supra) in favour of the Petitioner. We are unable to appreciate the insistence on the part of the Revenue to persists with thenotice dated 31st March, 2014 in the face of the decision of this Court in Vodafone India Services (P.) Ltd. (supra). In view of the decision of this Court in Vodafone India Services (P.) Ltd. (supra), there can be no reason to believe that income chargeable to tax has escaped assessment.9. In spite of the above, the Revenue insists on opposing the Petition. The failure to file Form 3 CEB would not by itself lead to the conclusion that there has been an escapement of income. In fact, the Petitioners understanding that the amount received on account of issue of shares to its holding company would not give rise to income chargeable to tax has been upheld by this Court in Vodafone India Services (P.) Ltd. (supra). In these circumstances, no fault can be found with the Petition or in not filing Form 3 CEB with its return of income.10. The other objections of Mr. Pinto is that the impugned notice foran assessment was issued before the decision was rendered in Vodafone India Services (P.) Ltd. (supra) and, therefore, valid is beyond our comprehension. The decision of this Court in Vodafone India Services (supra) has merely declared the law which stood at all times. Thus in the face of the decision of this Court in Vodafone India Services (supra), the impugned notice is unsustainable.11. The last submission of Mr. Pinto on behalf of the Revenue that powers ofwithin a period of four years from the end of assessment year is very wide. This submission ignores the fact that even in cases of less than four years, there must be reason to believe that income chargeable to tax has escaped assessment. In the absence of condition precedent under Section 147 of the Act being satisfied, no notice forof an assessment can be sustained.
|
Executive Engineer, Uttaranchal Power Corporation Vs. M/s Kashi Vishwanath Steels Ltd. & Others | afresh. 14. The order of discontinuing the surcharge w.e.f. 1st September, 2001 reads: "The U.P.E.R.C. in terms has recorded that discontinuation of 15% surcharge is due to (i) inability/incapability on the part of UPPCL for technical and operational reasons to ensure the guaranteed supply of 500 hours, (ii) it was difficult for UPPCL even to distinguish between the two consumers on independent feeder who asked for assured supply and who do not, (iii) most of the consumers having opted against this agreement and (iv) the financial implication was also negligible if the scheme was discontinued." 15. Appearing for the appellant Mr. Shanti Bhushan, learned senior counsel strenuously argued that the circular issued by the U.P. State Corporation modifying the tariff prescribed by the Regulatory Commission was wholly without any jurisdiction and could be recalled by the Uttarakhand Power Corporation w.e.f. the date the same was issued. Inasmuch as such a withdrawal was ordered by the Corporation it committed no illegality especially when the withdrawal was supported by clear and authoritative pronouncement of the High Court of Allahabad stating that the grant of exemption tantamounted to modifying the tariff which modification the corporation was not legally competent to make. It was further argued by Mr. Shanti Bhushan that there was no question of any promise having been made either by U.P. State Corporation or the Uttarakhand Power Corporation. In the absence of any such promise and in the absence of any material to show that the petitioner had acted upon any such promise and changed its position, there was no question of interfering with the order withdrawing the exemption on the basis of the principles of equitable estopple. 16. On behalf of the respondent-KVSL, it was on the other hand, submitted that since a promise was found to have been made by the U.P. Power Corporation to other consumers and since the said promise has been held to be enforceable, there was no justification for taking a different view insofar as the respondent-company is concerned. It was also submitted that once U.P. Corporation is held to be bound by the promise made by it the Uttarakhand Corporation which came into existence upon reorganization of the State had no option but to make the said promise good. It could not retrospectively withdraw the same only with a view to recover money which even the U.P. State Power Corporation would not have been entitled to recover. 17. In Writ Petition No.942 of 2001 filed by the respondent-KVSL the material facts were not disputed. It was unequivocally admitted that the respondent-company was a consumer getting supply from an independent feeder emanating from 400/220/132 KV sub station. It was also not in dispute that with the coming into existence of State of Uttarakhand w.e.f. 9th November, 2000 a new Power Corporation for the said State was established on 1st April, 2001. The respondent-companys further case is that Uttarakhand Power Corporation did not charge 15% surcharge on monthly demand and energy charges for the period April 2001 to October, 2001 and that it is only on 7th December, 2001 that the applicant received an intimation that circular dated 8th September had been revoked and letter dated 24th October cancelled. That the U.P. Electricity Regulatory Commission had approved a new tariff by order dated 1st September, 2000 and U.P. State Power Corporation had issued a consequential Notification dated 10th July, 2001 is also not in dispute. The said notification, it is noteworthy, does not any longer provide for 15% surcharge from consumers getting supply of energy from independent feeders. Suffice it to say that while according to the applicant-KVSL circular issued by the U.P. Power Corporation dated 8th September, 2001 giving an option to the consumers was valid and in accordance with law, there is not even a murmur in the writ petition filed by the respondent-company to the effect that either the U.P. Power Corporation or its successor had at any point of time made any promise to the company that supply of energy would be without any surcharge notwithstanding the fact that the tariff prescribed by the Regulatory Commission envisaged the levy of surcharge on electricity supplied directly from an independent feeder. There is similarly no averment whatsoever in the writ petition to the effect that the respondent-KVSL had altered its position acting upon any such promise. Not only that the agreements executed between the parties, namely, KVSL on the one hand and Power Corporation on the other also did not contain any unequivocal promise for supply of energy, no matter the supply was made from an independent feeder. In the absence of even an averment to the effect that there was a promise made by the U.P. State Power Corporation regarding supply of energy without payment of surcharge and in the absence of any material to show that the respondent-KVSL had indeed acted upon any such promise it is difficult to see how the said company can insist upon any such non-existent promise being made good. It is trite that before a party can rely upon on the doctrine of promissory estoppel it must make a specific averments and place material on record to demonstrate that a promise was indeed made to it. There is neither any averment nor any material to support the plea of promissory estoppel in the case at hand.18. It is also noteworthy that the High Court of Uttarakhand did not find a case in favour of the respondent-KVSL on the ground which is now sought to be urged in the present appeal. It is one thing to say that the plea of promissory estoppel is available to a consumer but an entirely different thing to say that such a plea has been made good by the material on record.19. We have, therefore, no hesitation in repelling the contention that any promise was made by the U.P. State Power Corporation to the respondent-KVSL which could justify the grant of any mandamus in its favour for making good any such promise. | 1[ds]It was unequivocally admitted that the respondent-company was a consumer getting supply from an independent feeder emanating from 400/220/132 KV sub station. It was also not in dispute that with the coming into existence of State of Uttarakhand w.e.f. 9th November, 2000 a new Power Corporation for the said State was established on 1st April, 2001. The respondent-companys further case is that Uttarakhand Power Corporation did not charge 15% surcharge on monthly demand and energy charges for the period April 2001 to October, 2001 and that it is only on 7th December, 2001 that the applicant received an intimation that circular dated 8th September had been revoked and letter dated 24th October cancelled. That the U.P. Electricity Regulatory Commission had approved a new tariff by order dated 1st September, 2000 and U.P. State Power Corporation had issued a consequential Notification dated 10th July, 2001 is also not in dispute. The said notification, it is noteworthy, does not any longer provide for 15% surcharge from consumers getting supply of energy from independent feeders. Suffice it to say that while according to the applicant-KVSL circular issued by the U.P. Power Corporation dated 8th September, 2001 giving an option to the consumers was valid and in accordance with law, there is not even a murmur in the writ petition filed by the respondent-company to the effect that either the U.P. Power Corporation or its successor had at any point of time made any promise to the company that supply of energy would be without any surcharge notwithstanding the fact that the tariff prescribed by the Regulatory Commission envisaged the levy of surcharge on electricity supplied directly from an independent feeder. There is similarly no averment whatsoever in the writ petition to the effect that the respondent-KVSL had altered its position acting upon any such promise. Not only that the agreements executed between the parties, namely, KVSL on the one hand and Power Corporation on the other also did not contain any unequivocal promise for supply of energy, no matter the supply was made from an independent feeder. In the absence of even an averment to the effect that there was a promise made by the U.P. State Power Corporation regarding supply of energy without payment of surcharge and in the absence of any material to show that the respondent-KVSL had indeed acted upon any such promise it is difficult to see how the said company can insist upon any such non-existent promise being made good. It is trite that before a party can rely upon on the doctrine of promissory estoppel it must make a specific averments and place material on record to demonstrate that a promise was indeed made to it. There is neither any averment nor any material to support the plea of promissory estoppel in the case at hand.18. It is also noteworthy that the High Court of Uttarakhand did not find a case in favour of the respondent-KVSL on the ground which is now sought to be urged in the present appeal. It is one thing to say that the plea of promissory estoppel is available to a consumer but an entirely different thing to say that such a plea has been made good by the material on record.19. We have, therefore, no hesitation in repelling the contention that any promise was made by the U.P. State Power Corporation to the respondent-KVSL which could justify the grant of any mandamus in its favour for making good any such promise. | 1 | 4,064 | 622 | ### 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:
afresh. 14. The order of discontinuing the surcharge w.e.f. 1st September, 2001 reads: "The U.P.E.R.C. in terms has recorded that discontinuation of 15% surcharge is due to (i) inability/incapability on the part of UPPCL for technical and operational reasons to ensure the guaranteed supply of 500 hours, (ii) it was difficult for UPPCL even to distinguish between the two consumers on independent feeder who asked for assured supply and who do not, (iii) most of the consumers having opted against this agreement and (iv) the financial implication was also negligible if the scheme was discontinued." 15. Appearing for the appellant Mr. Shanti Bhushan, learned senior counsel strenuously argued that the circular issued by the U.P. State Corporation modifying the tariff prescribed by the Regulatory Commission was wholly without any jurisdiction and could be recalled by the Uttarakhand Power Corporation w.e.f. the date the same was issued. Inasmuch as such a withdrawal was ordered by the Corporation it committed no illegality especially when the withdrawal was supported by clear and authoritative pronouncement of the High Court of Allahabad stating that the grant of exemption tantamounted to modifying the tariff which modification the corporation was not legally competent to make. It was further argued by Mr. Shanti Bhushan that there was no question of any promise having been made either by U.P. State Corporation or the Uttarakhand Power Corporation. In the absence of any such promise and in the absence of any material to show that the petitioner had acted upon any such promise and changed its position, there was no question of interfering with the order withdrawing the exemption on the basis of the principles of equitable estopple. 16. On behalf of the respondent-KVSL, it was on the other hand, submitted that since a promise was found to have been made by the U.P. Power Corporation to other consumers and since the said promise has been held to be enforceable, there was no justification for taking a different view insofar as the respondent-company is concerned. It was also submitted that once U.P. Corporation is held to be bound by the promise made by it the Uttarakhand Corporation which came into existence upon reorganization of the State had no option but to make the said promise good. It could not retrospectively withdraw the same only with a view to recover money which even the U.P. State Power Corporation would not have been entitled to recover. 17. In Writ Petition No.942 of 2001 filed by the respondent-KVSL the material facts were not disputed. It was unequivocally admitted that the respondent-company was a consumer getting supply from an independent feeder emanating from 400/220/132 KV sub station. It was also not in dispute that with the coming into existence of State of Uttarakhand w.e.f. 9th November, 2000 a new Power Corporation for the said State was established on 1st April, 2001. The respondent-companys further case is that Uttarakhand Power Corporation did not charge 15% surcharge on monthly demand and energy charges for the period April 2001 to October, 2001 and that it is only on 7th December, 2001 that the applicant received an intimation that circular dated 8th September had been revoked and letter dated 24th October cancelled. That the U.P. Electricity Regulatory Commission had approved a new tariff by order dated 1st September, 2000 and U.P. State Power Corporation had issued a consequential Notification dated 10th July, 2001 is also not in dispute. The said notification, it is noteworthy, does not any longer provide for 15% surcharge from consumers getting supply of energy from independent feeders. Suffice it to say that while according to the applicant-KVSL circular issued by the U.P. Power Corporation dated 8th September, 2001 giving an option to the consumers was valid and in accordance with law, there is not even a murmur in the writ petition filed by the respondent-company to the effect that either the U.P. Power Corporation or its successor had at any point of time made any promise to the company that supply of energy would be without any surcharge notwithstanding the fact that the tariff prescribed by the Regulatory Commission envisaged the levy of surcharge on electricity supplied directly from an independent feeder. There is similarly no averment whatsoever in the writ petition to the effect that the respondent-KVSL had altered its position acting upon any such promise. Not only that the agreements executed between the parties, namely, KVSL on the one hand and Power Corporation on the other also did not contain any unequivocal promise for supply of energy, no matter the supply was made from an independent feeder. In the absence of even an averment to the effect that there was a promise made by the U.P. State Power Corporation regarding supply of energy without payment of surcharge and in the absence of any material to show that the respondent-KVSL had indeed acted upon any such promise it is difficult to see how the said company can insist upon any such non-existent promise being made good. It is trite that before a party can rely upon on the doctrine of promissory estoppel it must make a specific averments and place material on record to demonstrate that a promise was indeed made to it. There is neither any averment nor any material to support the plea of promissory estoppel in the case at hand.18. It is also noteworthy that the High Court of Uttarakhand did not find a case in favour of the respondent-KVSL on the ground which is now sought to be urged in the present appeal. It is one thing to say that the plea of promissory estoppel is available to a consumer but an entirely different thing to say that such a plea has been made good by the material on record.19. We have, therefore, no hesitation in repelling the contention that any promise was made by the U.P. State Power Corporation to the respondent-KVSL which could justify the grant of any mandamus in its favour for making good any such promise.
### Response:
1
### Explanation:
It was unequivocally admitted that the respondent-company was a consumer getting supply from an independent feeder emanating from 400/220/132 KV sub station. It was also not in dispute that with the coming into existence of State of Uttarakhand w.e.f. 9th November, 2000 a new Power Corporation for the said State was established on 1st April, 2001. The respondent-companys further case is that Uttarakhand Power Corporation did not charge 15% surcharge on monthly demand and energy charges for the period April 2001 to October, 2001 and that it is only on 7th December, 2001 that the applicant received an intimation that circular dated 8th September had been revoked and letter dated 24th October cancelled. That the U.P. Electricity Regulatory Commission had approved a new tariff by order dated 1st September, 2000 and U.P. State Power Corporation had issued a consequential Notification dated 10th July, 2001 is also not in dispute. The said notification, it is noteworthy, does not any longer provide for 15% surcharge from consumers getting supply of energy from independent feeders. Suffice it to say that while according to the applicant-KVSL circular issued by the U.P. Power Corporation dated 8th September, 2001 giving an option to the consumers was valid and in accordance with law, there is not even a murmur in the writ petition filed by the respondent-company to the effect that either the U.P. Power Corporation or its successor had at any point of time made any promise to the company that supply of energy would be without any surcharge notwithstanding the fact that the tariff prescribed by the Regulatory Commission envisaged the levy of surcharge on electricity supplied directly from an independent feeder. There is similarly no averment whatsoever in the writ petition to the effect that the respondent-KVSL had altered its position acting upon any such promise. Not only that the agreements executed between the parties, namely, KVSL on the one hand and Power Corporation on the other also did not contain any unequivocal promise for supply of energy, no matter the supply was made from an independent feeder. In the absence of even an averment to the effect that there was a promise made by the U.P. State Power Corporation regarding supply of energy without payment of surcharge and in the absence of any material to show that the respondent-KVSL had indeed acted upon any such promise it is difficult to see how the said company can insist upon any such non-existent promise being made good. It is trite that before a party can rely upon on the doctrine of promissory estoppel it must make a specific averments and place material on record to demonstrate that a promise was indeed made to it. There is neither any averment nor any material to support the plea of promissory estoppel in the case at hand.18. It is also noteworthy that the High Court of Uttarakhand did not find a case in favour of the respondent-KVSL on the ground which is now sought to be urged in the present appeal. It is one thing to say that the plea of promissory estoppel is available to a consumer but an entirely different thing to say that such a plea has been made good by the material on record.19. We have, therefore, no hesitation in repelling the contention that any promise was made by the U.P. State Power Corporation to the respondent-KVSL which could justify the grant of any mandamus in its favour for making good any such promise.
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D. Anuradha Vs. Joint Secretary & Another | Union of India and in Shanker Raju Shetty v. Union of India. We do not doubt that the representation made by the detenu has to be considered by the Detaining Authority with the utmost expedition but as observed by one of us in Frances Coralie Mullin v. W.C. Khambra ?the time imperative can never be absolute or obsessive?. The occasional observations made by this Court that each day?s delay in dealing with the representation must be adequately explained are meant to emphasise the expedition with which the representation must be considered and not that it is a magical formula, the slightest breach of which must result in the release of the detenu. Law deals with the facts of life. In law, as in life, there are no invariable absolutes. Neither life nor law can be reduced to mere but despotic formulae.? 21. Considering the entire facts, we do not think that in this case the detention is liable to be quashed on the ground that one out of the five representations was not disposed of in time. The delay has been satisfactorily explained and the failure to get the translated copy of the representation was an unavoidable delay. We do emphasise that such delays should be avoided. 22. The contention raised by the appellant?s learned Counsel is that some of the relevant materials were not placed before the Detaining Authority and the omission to place those materials before the Detaining Authority had caused serious prejudice to the detenu. It was urged that the investigating authorities had collected the materials and once these materials were received by the Sponsoring Authority, they had no right to edit and decide which materials were relevant and they were bound to send the entire materials to the Detaining Authority. The learned Counsel for the appellant drew our attention to some of the relevant documents which were not placed before the Detaining Authority. This contention was elaborately considered by the Division Bench and it was held that all relevant materials were placed before the Detaining Authority. 23. The contention of the appellant is that the reply of N.C. Rangesh and several other documents were not placed before the Detaining Authority and the satisfaction arrived at by the Detaining Authority was incorrect and the detention was illegal. It was contended that the Sponsoring Authority did not place the statements of N.C. Rangesh and another Rajoo which are relevant and vital documents, in passing of the detention order. It may be noted that in the reply of N.C. Rangesh, he has stated that he is a lawyer in Singapore and that the detenu had taken legal assistance and that he was not obliged to reveal the materials as they were confidential communications. Therefore, it is clear that the statement of N.C. Rangesh was of no consequence and the Sponsoring Authority rightly withheld the same as it was irrelevant. Moreover, the detention order itself is passed on various grounds and even if some materials are not placed therefore the Detaining Authority, it would only affect one of the grounds stated in the detention order and the detention order by itself is sufficient to stand on its own on the basis of other grounds. The detention as a whole cannot be held to be illegal. If there are severable grounds, the vague nature of one of the grounds would not vitiate the entire detention order. 24. In Ahmad Nassar v. State of Tamil Nadu, VIII (1999) SLT 568=IV (1999) CCR 187 (SC)=(1999) 8 SCC 473 , referring to the cases of Ashadevi v. K. Shivraj, Addl. Chief Secy. to the Govt. of Gujarat, (1979) 1 SCC 222 ; Ayya v. State of U.P., (1989) 1 SCC 374 ; Sita Ram Somani v. State of Rajasthan, (1986) 2 SCC 86 , this Court held: ?A man is to be detained in the prison based on the subjective satisfaction of the Detaining Authority. Every conceivable material which is relevant and vital which may have a bearing on the issue should be placed before the Detaining Authority. The Sponsoring Authority should not keep it back, based on his interpretation that it would not be of any help to a prospective detenu. The decision is not to be made by the Sponsoring Authority. The law on the subject is well settled; a detention order vitiates if any relevant document is not placed before the Detaining Authority which reasonably could effect his decision.? 25. In the instant case, the statement of Rangesh did not divulge any details which would have in any way affected the decision of the Detaining Authority. 26. The learned Counsel for the appellant lastly contended that since the detention order was passed only in February 1996, that is, after about two years of the alleged involvement of the detenu for violation of the provisions of FERA on the basis of stale materials, the same was illegal. The allegations made against the detenu are of serious nature. It involved several crores of rupees. The various transactions had been done in a clandestine manner with the help of foreign nationals and the detenu himself had claimed to be a Non-Resident Indian. All these materials had contributed to the delay and the Detaining Authority had to consider these materials and cross-check the transactions. It was submitted by the learned Counsel for the respondent that the detention order was not passed on stale materials. 27. The learned Counsel for the appellant had urged before the High Court that the detenu was a non-resident Indian and, therefore, the detention order could not have been passed against him. This contention was elaborately considered in point No. 1 in the impugned judgment and it was held that the detenu was not a Non-resident Indian. No materials have been placed before us to prove that he was a Non-resident Indian and, therefore, beyond the ken of the provisions of COFEPOSA Act. The order of detention was rightly passed and we find no reason to interfere with the impugned judgment. | 0[ds]On a survey of the various authorities, it is clear that the representation, if any, submitted on behalf of the detenu shall receive immediate attention and that the same shall be considered by the Appropriate Authorities as expeditiously as possible. Any delay would naturally cause prejudice to the detenu17. In the instant case, as already noticed, the detenu himself filed two representations and on his behalf, his Counsel submitted another two representations and there is no allegation that these representations were not considered in time. But the representation filed by the present appellant, the wife of the detenu was disposed of only with a delay of 119 days. The delay was caused mainly due to non-availability of the translated copy of the representation. The representation was made in ?Tamil? and it is submitted by the Union Government that it took about three months to get a proper translation of the representation and as soon as the translation was received, the authorities took urgent steps and it was disposed of within a short period. In the facts and circumstances of the case, we do not think that there was inordinate delay in disposing of the representation21. Considering the entire facts, we do not think that in this case the detention is liable to be quashed on the ground that one out of the five representations was not disposed of in time. The delay has been satisfactorily explained and the failure to get the translated copy of the representation was an unavoidable delay. We do emphasise that such delays should be avoided25. In the instant case, the statement of Rangesh did not divulge any details which would have in any way affected the decision of the Detaining AuthorityThe learned Counsel for the appellant lastly contended that since the detention order was passed only in February 1996, that is, after about two years of the alleged involvement of the detenu for violation of the provisions of FERA on the basis of stale materials, the same was illegal. The allegations made against the detenu are of serious nature. It involved several crores of rupees. The various transactions had been done in a clandestine manner with the help of foreign nationals and the detenu himself had claimed to be at Indian. All these materials had contributed to the delay and the Detaining Authority had to consider these materials andk the transactions. It was submitted by the learned Counsel for the respondent that the detention order was not passed on stale materialsThe learned Counsel for the appellant had urged before the High Court that the detenu was at Indian and, therefore, the detention order could not have been passed against him. This contention was elaborately considered in point No. 1 in the impugned judgment and it was held that the detenu was not at Indian. No materials have been placed before us to prove that he was at Indian and, therefore, beyond the ken of the provisions of COFEPOSA Act. The order of detention was rightly passed and we find no reason to interfere with the impugned judgment. | 0 | 4,404 | 556 | ### 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:
Union of India and in Shanker Raju Shetty v. Union of India. We do not doubt that the representation made by the detenu has to be considered by the Detaining Authority with the utmost expedition but as observed by one of us in Frances Coralie Mullin v. W.C. Khambra ?the time imperative can never be absolute or obsessive?. The occasional observations made by this Court that each day?s delay in dealing with the representation must be adequately explained are meant to emphasise the expedition with which the representation must be considered and not that it is a magical formula, the slightest breach of which must result in the release of the detenu. Law deals with the facts of life. In law, as in life, there are no invariable absolutes. Neither life nor law can be reduced to mere but despotic formulae.? 21. Considering the entire facts, we do not think that in this case the detention is liable to be quashed on the ground that one out of the five representations was not disposed of in time. The delay has been satisfactorily explained and the failure to get the translated copy of the representation was an unavoidable delay. We do emphasise that such delays should be avoided. 22. The contention raised by the appellant?s learned Counsel is that some of the relevant materials were not placed before the Detaining Authority and the omission to place those materials before the Detaining Authority had caused serious prejudice to the detenu. It was urged that the investigating authorities had collected the materials and once these materials were received by the Sponsoring Authority, they had no right to edit and decide which materials were relevant and they were bound to send the entire materials to the Detaining Authority. The learned Counsel for the appellant drew our attention to some of the relevant documents which were not placed before the Detaining Authority. This contention was elaborately considered by the Division Bench and it was held that all relevant materials were placed before the Detaining Authority. 23. The contention of the appellant is that the reply of N.C. Rangesh and several other documents were not placed before the Detaining Authority and the satisfaction arrived at by the Detaining Authority was incorrect and the detention was illegal. It was contended that the Sponsoring Authority did not place the statements of N.C. Rangesh and another Rajoo which are relevant and vital documents, in passing of the detention order. It may be noted that in the reply of N.C. Rangesh, he has stated that he is a lawyer in Singapore and that the detenu had taken legal assistance and that he was not obliged to reveal the materials as they were confidential communications. Therefore, it is clear that the statement of N.C. Rangesh was of no consequence and the Sponsoring Authority rightly withheld the same as it was irrelevant. Moreover, the detention order itself is passed on various grounds and even if some materials are not placed therefore the Detaining Authority, it would only affect one of the grounds stated in the detention order and the detention order by itself is sufficient to stand on its own on the basis of other grounds. The detention as a whole cannot be held to be illegal. If there are severable grounds, the vague nature of one of the grounds would not vitiate the entire detention order. 24. In Ahmad Nassar v. State of Tamil Nadu, VIII (1999) SLT 568=IV (1999) CCR 187 (SC)=(1999) 8 SCC 473 , referring to the cases of Ashadevi v. K. Shivraj, Addl. Chief Secy. to the Govt. of Gujarat, (1979) 1 SCC 222 ; Ayya v. State of U.P., (1989) 1 SCC 374 ; Sita Ram Somani v. State of Rajasthan, (1986) 2 SCC 86 , this Court held: ?A man is to be detained in the prison based on the subjective satisfaction of the Detaining Authority. Every conceivable material which is relevant and vital which may have a bearing on the issue should be placed before the Detaining Authority. The Sponsoring Authority should not keep it back, based on his interpretation that it would not be of any help to a prospective detenu. The decision is not to be made by the Sponsoring Authority. The law on the subject is well settled; a detention order vitiates if any relevant document is not placed before the Detaining Authority which reasonably could effect his decision.? 25. In the instant case, the statement of Rangesh did not divulge any details which would have in any way affected the decision of the Detaining Authority. 26. The learned Counsel for the appellant lastly contended that since the detention order was passed only in February 1996, that is, after about two years of the alleged involvement of the detenu for violation of the provisions of FERA on the basis of stale materials, the same was illegal. The allegations made against the detenu are of serious nature. It involved several crores of rupees. The various transactions had been done in a clandestine manner with the help of foreign nationals and the detenu himself had claimed to be a Non-Resident Indian. All these materials had contributed to the delay and the Detaining Authority had to consider these materials and cross-check the transactions. It was submitted by the learned Counsel for the respondent that the detention order was not passed on stale materials. 27. The learned Counsel for the appellant had urged before the High Court that the detenu was a non-resident Indian and, therefore, the detention order could not have been passed against him. This contention was elaborately considered in point No. 1 in the impugned judgment and it was held that the detenu was not a Non-resident Indian. No materials have been placed before us to prove that he was a Non-resident Indian and, therefore, beyond the ken of the provisions of COFEPOSA Act. The order of detention was rightly passed and we find no reason to interfere with the impugned judgment.
### Response:
0
### Explanation:
On a survey of the various authorities, it is clear that the representation, if any, submitted on behalf of the detenu shall receive immediate attention and that the same shall be considered by the Appropriate Authorities as expeditiously as possible. Any delay would naturally cause prejudice to the detenu17. In the instant case, as already noticed, the detenu himself filed two representations and on his behalf, his Counsel submitted another two representations and there is no allegation that these representations were not considered in time. But the representation filed by the present appellant, the wife of the detenu was disposed of only with a delay of 119 days. The delay was caused mainly due to non-availability of the translated copy of the representation. The representation was made in ?Tamil? and it is submitted by the Union Government that it took about three months to get a proper translation of the representation and as soon as the translation was received, the authorities took urgent steps and it was disposed of within a short period. In the facts and circumstances of the case, we do not think that there was inordinate delay in disposing of the representation21. Considering the entire facts, we do not think that in this case the detention is liable to be quashed on the ground that one out of the five representations was not disposed of in time. The delay has been satisfactorily explained and the failure to get the translated copy of the representation was an unavoidable delay. We do emphasise that such delays should be avoided25. In the instant case, the statement of Rangesh did not divulge any details which would have in any way affected the decision of the Detaining AuthorityThe learned Counsel for the appellant lastly contended that since the detention order was passed only in February 1996, that is, after about two years of the alleged involvement of the detenu for violation of the provisions of FERA on the basis of stale materials, the same was illegal. The allegations made against the detenu are of serious nature. It involved several crores of rupees. The various transactions had been done in a clandestine manner with the help of foreign nationals and the detenu himself had claimed to be at Indian. All these materials had contributed to the delay and the Detaining Authority had to consider these materials andk the transactions. It was submitted by the learned Counsel for the respondent that the detention order was not passed on stale materialsThe learned Counsel for the appellant had urged before the High Court that the detenu was at Indian and, therefore, the detention order could not have been passed against him. This contention was elaborately considered in point No. 1 in the impugned judgment and it was held that the detenu was not at Indian. No materials have been placed before us to prove that he was at Indian and, therefore, beyond the ken of the provisions of COFEPOSA Act. The order of detention was rightly passed and we find no reason to interfere with the impugned judgment.
|
The State Of Assam Vs. Keshab Prasad Singh And Another.Gamiri Khari Chaiduar Fish | tained in the rules.The next question is, to what extent was a departure sanctioned? This is to be found in the letter dated 1st February, 1951, addressed to the Deputy Commissioner :- Government desire to settle the above mentioned fishery direct under rule 190-A. I am therefore directed to request you to put the fishery to auction and then to submit the bid list to Government with your recommendation for direct settlement ".17. The State of Assam wishes to construe this to mean that the Government of Assam intended to flout the statute and disregard the Rules and proceed by executive action. The words " direct settlement " do lend themselves to that construction but that would be an act which, in our opinion, would not be warranted by the law and, as we are bound to presume until the contrary is shown that the official acts of the Assam Government were regularly performed, we must, if we can, lean against a construction which would put that Government more in the wrong than we can help especially as it self purported to act under rule 190-A.18. Now the only act which would be in consonance with rule 190- A and which would at the same time be in conformity with the letter of the first February would be for the Deputy Commissioner to sell by auction and then send the matter to Government direct for sanction instead of to the Commissioner. That, in our opinion, would be a permissible departure and would make the action of Government legal and would bring the matter under rule 190-A. In the cir- cumstances, we are bound to construe this letter in that sense.19. Now what did the Deputy Commissioner do ? So far as the actual auction was concerned, he followed the Rules. He held a regular auction and recorded the bids in the usual way. -Up to that point he not only complied with the letter of the 1st February but also with the regular rules. His only departure was to send his choice of a lessee to Government direct instead of to the Commissioner. This, according to us, was a permissible departure.Upon receipt of the Deputy Commissioners recommendation Government sanctioned the settlement with the first respondent and the Deputy Commissioner communicated the sanction.20. It was argued on behalf of the State of Assam that this was not a settlement by the Deputy Commissioner but by the State Government and that the Deputy Commissioner was only acting as its mouthpiece when he conveyed the orders of Government to the first respondent. In. our opinion, that is a mere playing with words. The substance of the thing is there. It would be illegal for Government to settle the fishery direct by executive action because of the statute. It would be proper for it to sanction the settlement under rule 190-A in the way it did. Government said it was acting under rule 190-A. It said it had " sanctioned " the settlement. Whose act was it sanctioning? Certainly not its own, for one cannot sanction ones own act. Sanction can only be accorded to the act of another and tile only other person concerned in this matter was the Deputy Commissioner. Accordingly, in spite of the efforts of Government to appear as a bold brave despot which knows no laws but its own, we are constrained to hold that it not only clothed itself with an aura of legality but that it actually acted within the confines of the laws by which it is bound. It follows that the settlement was the act of the Deputy Commissioner and fell within the four corners of the rules. That vested the first respondent with a good and legal title to the lease. Next followed a similar series of acts cancelling the settlement with the first respondent and resettling the fishery with the rival body. As the -Deputy Commissioner was the only authority competent to settle these fisheries, subject of course to sanction, we are bound to hold that the act of cancellation and the act of resettlement were his acts however much lie may have acted under the direction and orders of a third party. That at once vested the High Court with jurisdiction to entertain the appeal against his actions under rule 190.When we say the Deputy Commissioner acted under the direction and orders of the State Government, we refer to the actual act of "settling" and not to his choice of a lessee. If this auction had proceeded in the normal way, the Deputy Commissioner would have directed the auction and would have made a selection and would then have sent his selection on to a higher authority, the Commissioner, for sanction. He would then have "settled" the fishery. In the present case, he carried out every one of those steps except that the higher authority here was the State Government which had substituted itself under rule 190-A in place of the Commissioner. It was the -Deputy Commissioner who made the initial choice. It was his choice which was " sanctioned " and it was he who in reality and in fact: "settled " the fishery with the first respondent. The mere fact that the State Government in addition to " sanctioning " his act also told him to " settle " the fishery could not alter or divest limit of his legal authority. This is not a case in which the Deputy Commissioner having been vested with a discretion failed to exercise it and acted as the mouthpiece of another. His discretion was to select a bidder and he did that without any outside pressure. There- after his authority was to " settle " the fishery with the selected bidder once his act was sanctioned and the mere fact that lie was directed by another to do that which he would have been bound to do under the law in any event cannot divest the settlement of its legal and binding character.21. | 0[ds]It was argued on behalf of the State of Assam that this was not a settlement by the Deputy Commissioner but by the State Government and that the Deputy Commissioner was only acting as its mouthpiece when he conveyed the orders of Government to the first respondent. In. our opinion, that is a mere playing with words. The substance of the thing is there. It would be illegal for Government to settle the fishery direct by executive action because of the statute. It would be proper for it to sanction the settlement under rule 190-A in the way it did. Government said it was acting under rule 190-A. It said it had " sanctioned " the settlement. Whose act was it sanctioning? Certainly not its own, for one cannot sanction ones own act. Sanction can only be accorded to the act of another and tile only other person concerned in this matter was the Deputy Commissioner. Accordingly, in spite of the efforts of Government to appear as a bold brave despot which knows no laws but its own, we are constrained to hold that it not only clothed itself with an aura of legality but that it actually acted within the confines of the laws by which it is bound. It follows that the settlement was the act of the Deputy Commissioner and fell within the four corners of the rules. That vested the first respondent with a good and legal title to the lease. Next followed a similar series of acts cancelling the settlement with the first respondent and resettling the fishery with the rival body. As the -Deputy Commissioner was the only authority competent to settle these fisheries, subject of course to sanction, we are bound to hold that the act of cancellation and the act of resettlement were his acts however much lie may have acted under the direction and orders of a third party. That at once vested the High Court with jurisdiction to entertain the appeal against his actions under rule 190.When we say the Deputy Commissioner acted under the direction and orders of the State Government, we refer to the actual act of "settling" and not to his choice of a lessee. If this auction had proceeded in the normal way, the Deputy Commissioner would have directed the auction and would have made a selection and would then have sent his selection on to a higher authority, the Commissioner, for sanction. He would then have "settled" the fishery. In the present case, he carried out every one of those steps except that the higher authority here was the State Government which had substituted itself under rule 190-A in place of the Commissioner. It was the -Deputy Commissioner who made the initial choice. It was his choice which was " sanctioned " and it was he who in reality and in fact: "settled " the fishery with the first respondent. The mere fact that the State Government in addition to " sanctioning " his act also told him to " settle " the fishery could not alter or divest limit of his legal authority. This is not a case in which the Deputy Commissioner having been vested with a discretion failed to exercise it and acted as the mouthpiece of another. His discretion was to select a bidder and he did that without any outside pressure. There- after his authority was to " settle " the fishery with the selected bidder once his act was sanctioned and the mere fact that lie was directed by another to do that which he would have been bound to do under the law in any event cannot divest the settlement of its legal and binding character. | 0 | 4,052 | 667 | ### 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:
tained in the rules.The next question is, to what extent was a departure sanctioned? This is to be found in the letter dated 1st February, 1951, addressed to the Deputy Commissioner :- Government desire to settle the above mentioned fishery direct under rule 190-A. I am therefore directed to request you to put the fishery to auction and then to submit the bid list to Government with your recommendation for direct settlement ".17. The State of Assam wishes to construe this to mean that the Government of Assam intended to flout the statute and disregard the Rules and proceed by executive action. The words " direct settlement " do lend themselves to that construction but that would be an act which, in our opinion, would not be warranted by the law and, as we are bound to presume until the contrary is shown that the official acts of the Assam Government were regularly performed, we must, if we can, lean against a construction which would put that Government more in the wrong than we can help especially as it self purported to act under rule 190-A.18. Now the only act which would be in consonance with rule 190- A and which would at the same time be in conformity with the letter of the first February would be for the Deputy Commissioner to sell by auction and then send the matter to Government direct for sanction instead of to the Commissioner. That, in our opinion, would be a permissible departure and would make the action of Government legal and would bring the matter under rule 190-A. In the cir- cumstances, we are bound to construe this letter in that sense.19. Now what did the Deputy Commissioner do ? So far as the actual auction was concerned, he followed the Rules. He held a regular auction and recorded the bids in the usual way. -Up to that point he not only complied with the letter of the 1st February but also with the regular rules. His only departure was to send his choice of a lessee to Government direct instead of to the Commissioner. This, according to us, was a permissible departure.Upon receipt of the Deputy Commissioners recommendation Government sanctioned the settlement with the first respondent and the Deputy Commissioner communicated the sanction.20. It was argued on behalf of the State of Assam that this was not a settlement by the Deputy Commissioner but by the State Government and that the Deputy Commissioner was only acting as its mouthpiece when he conveyed the orders of Government to the first respondent. In. our opinion, that is a mere playing with words. The substance of the thing is there. It would be illegal for Government to settle the fishery direct by executive action because of the statute. It would be proper for it to sanction the settlement under rule 190-A in the way it did. Government said it was acting under rule 190-A. It said it had " sanctioned " the settlement. Whose act was it sanctioning? Certainly not its own, for one cannot sanction ones own act. Sanction can only be accorded to the act of another and tile only other person concerned in this matter was the Deputy Commissioner. Accordingly, in spite of the efforts of Government to appear as a bold brave despot which knows no laws but its own, we are constrained to hold that it not only clothed itself with an aura of legality but that it actually acted within the confines of the laws by which it is bound. It follows that the settlement was the act of the Deputy Commissioner and fell within the four corners of the rules. That vested the first respondent with a good and legal title to the lease. Next followed a similar series of acts cancelling the settlement with the first respondent and resettling the fishery with the rival body. As the -Deputy Commissioner was the only authority competent to settle these fisheries, subject of course to sanction, we are bound to hold that the act of cancellation and the act of resettlement were his acts however much lie may have acted under the direction and orders of a third party. That at once vested the High Court with jurisdiction to entertain the appeal against his actions under rule 190.When we say the Deputy Commissioner acted under the direction and orders of the State Government, we refer to the actual act of "settling" and not to his choice of a lessee. If this auction had proceeded in the normal way, the Deputy Commissioner would have directed the auction and would have made a selection and would then have sent his selection on to a higher authority, the Commissioner, for sanction. He would then have "settled" the fishery. In the present case, he carried out every one of those steps except that the higher authority here was the State Government which had substituted itself under rule 190-A in place of the Commissioner. It was the -Deputy Commissioner who made the initial choice. It was his choice which was " sanctioned " and it was he who in reality and in fact: "settled " the fishery with the first respondent. The mere fact that the State Government in addition to " sanctioning " his act also told him to " settle " the fishery could not alter or divest limit of his legal authority. This is not a case in which the Deputy Commissioner having been vested with a discretion failed to exercise it and acted as the mouthpiece of another. His discretion was to select a bidder and he did that without any outside pressure. There- after his authority was to " settle " the fishery with the selected bidder once his act was sanctioned and the mere fact that lie was directed by another to do that which he would have been bound to do under the law in any event cannot divest the settlement of its legal and binding character.21.
### Response:
0
### Explanation:
It was argued on behalf of the State of Assam that this was not a settlement by the Deputy Commissioner but by the State Government and that the Deputy Commissioner was only acting as its mouthpiece when he conveyed the orders of Government to the first respondent. In. our opinion, that is a mere playing with words. The substance of the thing is there. It would be illegal for Government to settle the fishery direct by executive action because of the statute. It would be proper for it to sanction the settlement under rule 190-A in the way it did. Government said it was acting under rule 190-A. It said it had " sanctioned " the settlement. Whose act was it sanctioning? Certainly not its own, for one cannot sanction ones own act. Sanction can only be accorded to the act of another and tile only other person concerned in this matter was the Deputy Commissioner. Accordingly, in spite of the efforts of Government to appear as a bold brave despot which knows no laws but its own, we are constrained to hold that it not only clothed itself with an aura of legality but that it actually acted within the confines of the laws by which it is bound. It follows that the settlement was the act of the Deputy Commissioner and fell within the four corners of the rules. That vested the first respondent with a good and legal title to the lease. Next followed a similar series of acts cancelling the settlement with the first respondent and resettling the fishery with the rival body. As the -Deputy Commissioner was the only authority competent to settle these fisheries, subject of course to sanction, we are bound to hold that the act of cancellation and the act of resettlement were his acts however much lie may have acted under the direction and orders of a third party. That at once vested the High Court with jurisdiction to entertain the appeal against his actions under rule 190.When we say the Deputy Commissioner acted under the direction and orders of the State Government, we refer to the actual act of "settling" and not to his choice of a lessee. If this auction had proceeded in the normal way, the Deputy Commissioner would have directed the auction and would have made a selection and would then have sent his selection on to a higher authority, the Commissioner, for sanction. He would then have "settled" the fishery. In the present case, he carried out every one of those steps except that the higher authority here was the State Government which had substituted itself under rule 190-A in place of the Commissioner. It was the -Deputy Commissioner who made the initial choice. It was his choice which was " sanctioned " and it was he who in reality and in fact: "settled " the fishery with the first respondent. The mere fact that the State Government in addition to " sanctioning " his act also told him to " settle " the fishery could not alter or divest limit of his legal authority. This is not a case in which the Deputy Commissioner having been vested with a discretion failed to exercise it and acted as the mouthpiece of another. His discretion was to select a bidder and he did that without any outside pressure. There- after his authority was to " settle " the fishery with the selected bidder once his act was sanctioned and the mere fact that lie was directed by another to do that which he would have been bound to do under the law in any event cannot divest the settlement of its legal and binding character.
|
Delhi Development Authority Vs. Sukhbir Singh | of the title to the land which is vested in the Government. Section 17(1) states so in unmistakable terms. Clearly, Section 11A can have no application to cases of acquisitions under Section 17 because the lands have already vested in the Government and there is no provision in the said Act by which land statutorily vested in the Government can revert to the owner. [para 15] 26. Satendra Prasad Jains case has been held in a subsequent judgment, namely, Laxmi Devi v. State of Bihar, (2015) 10 SCC 241 , to have a limited ratio. The limited ratio has been said to be that it is not open to the beneficiary of an acquisition who has failed to make the necessary monies available, and who has been in occupation of the land since its possession was taken, to subsequently urge that such possession was taken illegally. It is clear that on the facts of that case, it was the land owners who filed a writ petition asking for a mandamus to complete the acquisition proceedings, and the State and the beneficiary of acquisition tried to resile from it by contending that the acquisition proceedings had lapsed under Section 11A of the Act. It was in these peculiar circumstances that the aforesaid judgment was delivered. 27. Even going by paragraph 15 of the Satendra Prasad Jains case, we find that the difference in phraseology between Section 11A of the Land Acquisition Act and Section 24(2) of the 2013 Act really clinches the issue in favour of the land owners. The expression used in Section 24(2), namely, deemed to have lapsed is of great significance and differs from the use of the expression lapsed in Section 11A. As is well settled, a deeming fiction is enacted so that a putative state of affairs must be imagined, the mind not being allowed to boggle at the logical consequence of such putative state of affairs. Even if we are to agree with Shri Sharan that, post vesting, acquisition proceedings cannot be said to lapse, yet we have to give effect to the deeming fiction contained in Section 24(2). In fact, Section 24(2) uses the expression deemed to have lapsed because the Legislature was cognizant of the fact that, in cases where compensation has not been paid, and physical possession handed over to the State, vesting has taken place, after which land acquisition proceedings could be said to have ended. For this reason also, we are of the view that Pune Municipal Corporation does not require to be revisited. 28. It remains to deal with one submission of Shri A.K. Sanghi. According to Shri Sanghi, physical possession has not been taken of the land in dispute. We are afraid this may not be correct. The Panchnama dated 27th January, 2000 specifically records that possession of the land above stated was recovered and handed over to the representatives of the Office of Land and Buildings. The Panchnama is also signed by all the necessary officers. This piece of land admittedly being open land is governed by the ratio of Raghbir Singh Sehrawat v. State of Haryana & Ors., (2012) 1 SCC 792 in which it has been held: In Banda Development Authority v. Moti Lal Agarwal [(2011) 5 SCC 394 : (2011) 2 SCC (Civ) 747] , the Court referred to the judgments in Balwant Narayan Bhagde v. M.D. Bhagwat [(1976) 1 SCC 700] , Balmokand Khatri Educational and Industrial Trust v. State of Punjab [(1996) 4 SCC 212] , P.K. Kalburqi v. State of Karnataka [(2005) 12 SCC 489] , NTPC Ltd. v. Mahesh Dutta [(2009) 8 SCC 339 : (2009) 3 SCC (Civ) 375] , Sita Ram Bhandar Society v. Govt. (NCT of Delhi) [(2009) 10 SCC 501 : (2009) 4 SCC (Civ) 268] and culled out the following propositions: (Banda Development Authority case [(2011) 5 SCC 394 : (2011) 2 SCC (Civ) 747] , SCC p. 411, para 37) (i) No hard-and-fast rule can be laid down as to what act would constitute taking of possession of the acquired land. (ii) If the acquired land is vacant, the act of the State authority concerned to go to the spot and prepare a panchnama will ordinarily be treated as sufficient to constitute taking of possession. (iii) If crop is standing on the acquired land or building/structure exists, mere going on the spot by the authority concerned will, by itself, be not sufficient for taking possession. Ordinarily, in such cases, the authority concerned will have to give notice to the occupier of the building/structure or the person who has cultivated the land and take possession in the presence of independent witnesses and get their signatures on the panchnama. Of course, refusal of the owner of the land or building/structure may not lead to an inference that the possession of the acquired land has not been taken. (iv) If the acquisition is of a large tract of land, it may not be possible for the acquiring/designated authority to take physical possession of each and every parcel of the land and it will be sufficient that symbolic possession is taken by preparing appropriate document in the presence of independent witnesses and getting their signatures on such document. (v) If beneficiary of the acquisition is an agency/instrumentality of the State and 80% of the total compensation is deposited in terms of Section 17(3-A) and substantial portion of the acquired land has been utilised in furtherance of the particular public purpose, then the court may reasonably presume that possession of the acquired land has been taken. [para 27] 29. As the present case will fall within sub-paragraph (ii), physical possession of the land can be said to have been taken on the facts of the present case. 30. Having regard to the law declared in the Pune Municipal Corporation case, as followed by the other judgments of this Court, we are of the opinion that the High Court is correct and that the impugned judgment calls for no interference. | 0[ds]20. On facts, it is clear that neither tender, that is offer to the original claimant nor payment has been made in the manner provided by Section 31 read with Standing Order No. 28 of 1909. In the present case, as has been admitted in the affidavit filed in this Court, the DDA was not ready with compensation payable on the day the award was pronounced, but only handed over such compensation to the Land Acquisition Collector five years after the award was pronounced, that is, in 2002. The Land Acquisition Collector, in its turn, did nothing whatsoever to offer the said sum or pay it to the original owners. On the contrary, by moving an application on the eve of the coming into force of the 2013 Act, and by depositing the said amount of compensation paid to it in the year 2002 only on 30th December, 2013, it is clear that the aforesaid mandatory provision and procedure were not followed by the authorities. The present original land owners lands were notified for acquisition on 24th October, 1961, of which possession was taken four decades later, in 2000; after which the land owners have yet to see the colour of the paltry amount of compensation offered which has neither been tendered nor paid to them. In the facts disclosed by this case, there could not be stronger facts to hold such acquisition non est in accordance with the object sought to be achieved by Section 24 (2) of the 2013 Act. This piece of land admittedly being open land is governed by the ratio of Raghbir Singh Sehrawat v. State of Haryana & Ors., (2012) 1 SCC 792 in which it has been held:In Banda Development Authority v. Moti Lal Agarwal [(2011) 5 SCC 394 : (2011) 2 SCC (Civ) 747] , the Court referred to the judgments in Balwant Narayan Bhagde v. M.D. Bhagwat [(1976) 1 SCC 700] , Balmokand Khatri Educational and Industrial Trust v. State of Punjab [(1996) 4 SCC 212] , P.K. Kalburqi v. State of Karnataka [(2005) 12 SCC 489] , NTPC Ltd. v. Mahesh Dutta [(2009) 8 SCC 339 : (2009) 3 SCC (Civ) 375] , Sita Ram Bhandar Society v. Govt. (NCT of Delhi) [(2009) 10 SCC 501 : (2009) 4 SCC (Civ) 268] and culled out the following propositions: (Banda Development Authority case [(2011) 5 SCC 394 : (2011) 2 SCC (Civ) 747] , SCC p. 411, para 37)(i) No hard-and-fast rule can be laid down as to what act would constitute taking of possession of the acquired land(ii) If the acquired land is vacant, the act of the State authority concerned to go to the spot and prepare a panchnama will ordinarily be treated as sufficient to constitute taking of possession(iii) If crop is standing on the acquired land or building/structure exists, mere going on the spot by the authority concerned will, by itself, be not sufficient for taking possession. Ordinarily, in such cases, the authority concerned will have to give notice to the occupier of the building/structure or the person who has cultivated the land and take possession in the presence of independent witnesses and get their signatures on the panchnama. Of course, refusal of the owner of the land or building/structure may not lead to an inference that the possession of the acquired land has not been taken(iv) If the acquisition is of a large tract of land, it may not be possible for the acquiring/designated authority to take physical possession of each and every parcel of the land and it will be sufficient that symbolic possession is taken by preparing appropriate document in the presence of independent witnesses and getting their signatures on such document(v) If beneficiary of the acquisition is an agency/instrumentality of the State and 80% of the total compensation is deposited in terms of Section 17(3-A) and substantial portion of the acquired land has been utilised in furtherance of the particular public purpose, then the court may reasonably presume that possession of the acquired land has been taken. [para 27]29. As the present case will fall within sub-paragraph (ii), physical possession of the land can be said to have been taken on the facts of the present case30. Having regard to the law declared in the Pune Municipal Corporation case, as followed by the other judgments of this Court, we are of the opinion that the High Court is correct and that the impugned judgment calls for no interference. | 0 | 11,379 | 877 | ### Instruction:
Ascertain if the court will uphold (1) or dismiss (0) the appeal in the case proceeding, and then clarify this prediction by discussing critical sentences from the text.
### Input:
of the title to the land which is vested in the Government. Section 17(1) states so in unmistakable terms. Clearly, Section 11A can have no application to cases of acquisitions under Section 17 because the lands have already vested in the Government and there is no provision in the said Act by which land statutorily vested in the Government can revert to the owner. [para 15] 26. Satendra Prasad Jains case has been held in a subsequent judgment, namely, Laxmi Devi v. State of Bihar, (2015) 10 SCC 241 , to have a limited ratio. The limited ratio has been said to be that it is not open to the beneficiary of an acquisition who has failed to make the necessary monies available, and who has been in occupation of the land since its possession was taken, to subsequently urge that such possession was taken illegally. It is clear that on the facts of that case, it was the land owners who filed a writ petition asking for a mandamus to complete the acquisition proceedings, and the State and the beneficiary of acquisition tried to resile from it by contending that the acquisition proceedings had lapsed under Section 11A of the Act. It was in these peculiar circumstances that the aforesaid judgment was delivered. 27. Even going by paragraph 15 of the Satendra Prasad Jains case, we find that the difference in phraseology between Section 11A of the Land Acquisition Act and Section 24(2) of the 2013 Act really clinches the issue in favour of the land owners. The expression used in Section 24(2), namely, deemed to have lapsed is of great significance and differs from the use of the expression lapsed in Section 11A. As is well settled, a deeming fiction is enacted so that a putative state of affairs must be imagined, the mind not being allowed to boggle at the logical consequence of such putative state of affairs. Even if we are to agree with Shri Sharan that, post vesting, acquisition proceedings cannot be said to lapse, yet we have to give effect to the deeming fiction contained in Section 24(2). In fact, Section 24(2) uses the expression deemed to have lapsed because the Legislature was cognizant of the fact that, in cases where compensation has not been paid, and physical possession handed over to the State, vesting has taken place, after which land acquisition proceedings could be said to have ended. For this reason also, we are of the view that Pune Municipal Corporation does not require to be revisited. 28. It remains to deal with one submission of Shri A.K. Sanghi. According to Shri Sanghi, physical possession has not been taken of the land in dispute. We are afraid this may not be correct. The Panchnama dated 27th January, 2000 specifically records that possession of the land above stated was recovered and handed over to the representatives of the Office of Land and Buildings. The Panchnama is also signed by all the necessary officers. This piece of land admittedly being open land is governed by the ratio of Raghbir Singh Sehrawat v. State of Haryana & Ors., (2012) 1 SCC 792 in which it has been held: In Banda Development Authority v. Moti Lal Agarwal [(2011) 5 SCC 394 : (2011) 2 SCC (Civ) 747] , the Court referred to the judgments in Balwant Narayan Bhagde v. M.D. Bhagwat [(1976) 1 SCC 700] , Balmokand Khatri Educational and Industrial Trust v. State of Punjab [(1996) 4 SCC 212] , P.K. Kalburqi v. State of Karnataka [(2005) 12 SCC 489] , NTPC Ltd. v. Mahesh Dutta [(2009) 8 SCC 339 : (2009) 3 SCC (Civ) 375] , Sita Ram Bhandar Society v. Govt. (NCT of Delhi) [(2009) 10 SCC 501 : (2009) 4 SCC (Civ) 268] and culled out the following propositions: (Banda Development Authority case [(2011) 5 SCC 394 : (2011) 2 SCC (Civ) 747] , SCC p. 411, para 37) (i) No hard-and-fast rule can be laid down as to what act would constitute taking of possession of the acquired land. (ii) If the acquired land is vacant, the act of the State authority concerned to go to the spot and prepare a panchnama will ordinarily be treated as sufficient to constitute taking of possession. (iii) If crop is standing on the acquired land or building/structure exists, mere going on the spot by the authority concerned will, by itself, be not sufficient for taking possession. Ordinarily, in such cases, the authority concerned will have to give notice to the occupier of the building/structure or the person who has cultivated the land and take possession in the presence of independent witnesses and get their signatures on the panchnama. Of course, refusal of the owner of the land or building/structure may not lead to an inference that the possession of the acquired land has not been taken. (iv) If the acquisition is of a large tract of land, it may not be possible for the acquiring/designated authority to take physical possession of each and every parcel of the land and it will be sufficient that symbolic possession is taken by preparing appropriate document in the presence of independent witnesses and getting their signatures on such document. (v) If beneficiary of the acquisition is an agency/instrumentality of the State and 80% of the total compensation is deposited in terms of Section 17(3-A) and substantial portion of the acquired land has been utilised in furtherance of the particular public purpose, then the court may reasonably presume that possession of the acquired land has been taken. [para 27] 29. As the present case will fall within sub-paragraph (ii), physical possession of the land can be said to have been taken on the facts of the present case. 30. Having regard to the law declared in the Pune Municipal Corporation case, as followed by the other judgments of this Court, we are of the opinion that the High Court is correct and that the impugned judgment calls for no interference.
### Response:
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### Explanation:
20. On facts, it is clear that neither tender, that is offer to the original claimant nor payment has been made in the manner provided by Section 31 read with Standing Order No. 28 of 1909. In the present case, as has been admitted in the affidavit filed in this Court, the DDA was not ready with compensation payable on the day the award was pronounced, but only handed over such compensation to the Land Acquisition Collector five years after the award was pronounced, that is, in 2002. The Land Acquisition Collector, in its turn, did nothing whatsoever to offer the said sum or pay it to the original owners. On the contrary, by moving an application on the eve of the coming into force of the 2013 Act, and by depositing the said amount of compensation paid to it in the year 2002 only on 30th December, 2013, it is clear that the aforesaid mandatory provision and procedure were not followed by the authorities. The present original land owners lands were notified for acquisition on 24th October, 1961, of which possession was taken four decades later, in 2000; after which the land owners have yet to see the colour of the paltry amount of compensation offered which has neither been tendered nor paid to them. In the facts disclosed by this case, there could not be stronger facts to hold such acquisition non est in accordance with the object sought to be achieved by Section 24 (2) of the 2013 Act. This piece of land admittedly being open land is governed by the ratio of Raghbir Singh Sehrawat v. State of Haryana & Ors., (2012) 1 SCC 792 in which it has been held:In Banda Development Authority v. Moti Lal Agarwal [(2011) 5 SCC 394 : (2011) 2 SCC (Civ) 747] , the Court referred to the judgments in Balwant Narayan Bhagde v. M.D. Bhagwat [(1976) 1 SCC 700] , Balmokand Khatri Educational and Industrial Trust v. State of Punjab [(1996) 4 SCC 212] , P.K. Kalburqi v. State of Karnataka [(2005) 12 SCC 489] , NTPC Ltd. v. Mahesh Dutta [(2009) 8 SCC 339 : (2009) 3 SCC (Civ) 375] , Sita Ram Bhandar Society v. Govt. (NCT of Delhi) [(2009) 10 SCC 501 : (2009) 4 SCC (Civ) 268] and culled out the following propositions: (Banda Development Authority case [(2011) 5 SCC 394 : (2011) 2 SCC (Civ) 747] , SCC p. 411, para 37)(i) No hard-and-fast rule can be laid down as to what act would constitute taking of possession of the acquired land(ii) If the acquired land is vacant, the act of the State authority concerned to go to the spot and prepare a panchnama will ordinarily be treated as sufficient to constitute taking of possession(iii) If crop is standing on the acquired land or building/structure exists, mere going on the spot by the authority concerned will, by itself, be not sufficient for taking possession. Ordinarily, in such cases, the authority concerned will have to give notice to the occupier of the building/structure or the person who has cultivated the land and take possession in the presence of independent witnesses and get their signatures on the panchnama. Of course, refusal of the owner of the land or building/structure may not lead to an inference that the possession of the acquired land has not been taken(iv) If the acquisition is of a large tract of land, it may not be possible for the acquiring/designated authority to take physical possession of each and every parcel of the land and it will be sufficient that symbolic possession is taken by preparing appropriate document in the presence of independent witnesses and getting their signatures on such document(v) If beneficiary of the acquisition is an agency/instrumentality of the State and 80% of the total compensation is deposited in terms of Section 17(3-A) and substantial portion of the acquired land has been utilised in furtherance of the particular public purpose, then the court may reasonably presume that possession of the acquired land has been taken. [para 27]29. As the present case will fall within sub-paragraph (ii), physical possession of the land can be said to have been taken on the facts of the present case30. Having regard to the law declared in the Pune Municipal Corporation case, as followed by the other judgments of this Court, we are of the opinion that the High Court is correct and that the impugned judgment calls for no interference.
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Swadesh Kumar Agarwal Vs. Dinesh Kumar Agarwal & Ors, etc., etc | terms of the agreement, the arbitration clause has already been invoked by one of the parties thereto under the ICC Rules, the provisions of sub-section (6) cannot be invoked again, and, in case the other party is dissatisfied or aggrieved by the appointment of an arbitrator in terms of the agreement, his/its remedy would be by way of a petition under Section 13, and, thereafter, under Section 34 of the 1996 Act. 9. Following the aforesaid decision in the subsequent decision of this Court in the case of S.P. Singla Constructions Private Limited (supra), it is observed and held by this Court that once the arbitrator had been appointed as per clause 65 of the agreement (in that case) and as per provisions of the law, the arbitration agreement could not have been invoked for second time. 9.1 Now so far as reliance being placed upon the decisions of this Court by learned counsel appearing on behalf of respondent No. 1 in the cases of ACC Limited (supra) and Uttar Pradesh State Bridge Corporation Limited (supra) are concerned as such there cannot be any dispute with respect to the position of law laid down by this Court in the aforesaid decisions to the effect that in case of any of the eventualities occurring as mentioned in section 14 and 15 of the Act, 1996, the mandate of the arbitrator shall stand terminated. However, the question is in a case where there is a dispute/controversy on the mandate of the arbitration being terminated on the ground set out in section 14(1)(a) of the Act, whether such a dispute shall have to be raised before the concerned court defined under section 2(e) of the Act or such a dispute can be considered on an application under section 11(6) of the Act? Before this Court in the aforesaid decisions such a controversy was not raised. Therefore, the aforesaid decisions shall not be of any assistance to respondents and/or the same shall not be applicable to the facts of the case on hand, while deciding the issue, whether termination of the mandate of the arbitrator on the ground mentioned under section 14(1)(a) of the Act, 1996 can be decided under section 14(2) or under section 11(6) of the Act, 1996. 10. It is to be noted that as such in the present case the proceedings before the concerned court under section 14(2) of the Act, 1996 at the instance of respondent No. 1 and 3 herein to terminate the mandate of the sole respondent under section 14(1)(a) of the Act were already pending before the concerned court when respondent No. 1 moved an application under section 11(6) of the Act and such a dispute was at large before the court in a proceeding under section 14(2) of the Act. 11. In view of the aforesaid discussion and for the reasons stated above, it is observed and held as under: - (i) That there is a difference and distinction between section 11(5) and section 11(6) of the Act, 1996; (ii) In a case where there is no written agreement between the parties on the procedure for appointing an arbitrator or arbitrators, parties are free to agree on a procedure by mutual consent and/or agreement and the dispute can be referred to a sole arbitrator/arbitrators who can be appointed by mutual consent and failing any agreement referred to section 11(2), section 11(5) of the Act shall be attracted and in such a situation, the application for appointment of arbitrator or arbitrators shall be maintainable under section 11(5) of the Act and not under section 11(6) of the Act; (iii) In a case where there is a written agreement and/or contract containing the arbitration agreement and the appointment or procedure is agreed upon by the parties, an application under section 11(6) of the Act shall be maintainable and the High Court or its nominee can appoint an arbitrator or arbitrators in case any of the eventualities occurring under section 11(6) (a) to (c) of the Act; (iv) Once the dispute is referred to arbitration and the sole arbitrator is appointed by the parties by mutual consent and the arbitrator/arbitrators is/are so appointed, the arbitration agreement cannot be invoked for the second time; (v) In a case where there is a dispute/controversy on the mandate of the arbitrator being terminated on the ground mentioned in section 14(1)(a), such a dispute has to be raised before the court, defined under section 2(e) of the Act, 1996 and such a dispute cannot be decided on an application filed under section 11(6) of the Act, 1996. 12. Now the next question which is posed for consideration of this Court is whether the learned Trial Court was justified in rejecting the application submitted by the appellant, which was filed to reject the applications under section 14 of the Act, in exercise of powers under Order VII Rule 11 of CPC is concerned, having gone through the averments in the application under Order VII Rule 11 of CPC, it appears and it is not in dispute that the application under section 14(2) of the Act was sought to be rejected on the ground that there was no undue delay on the part of the arbitrator and therefore, his mandate is not required to be terminated under section 14(1)(a) of the Act, 1996. However, such a dispute is to be adjudicated on merits by the concerned court before whom the proceedings under section 14(2) of the Act were initiated and at the most, it can be said to be the defence, which was to be adjudicated by the concerned court. As per the settled position of law, at the stage of deciding the application under Order VII Rule 11 of CPC only the averments and allegations in the application/plaint are to be considered and not the written statement and/or reply to the application and/or the defence. Therefore, as such the learned Trial Court rightly dismissed the application under Order VII Rule 11 of CPC. | 0[ds]6.3 In the present case, the sole arbitrator was appointed by the parties themselves by mutual consent and in the absence of any written contract containing the arbitration agreement. Therefore, application under section 11(6) of the Act, 1996 in absence of any written agreement containing arbitration agreement was not maintainable at all.6.7 Therefore, on a conjoint reading of section 13, 14 and 15 of the Act, if the challenge to the arbitrator is made on any of the grounds mentioned in section 12 of the Act, the party aggrieved has to submit an appropriate application before the Arbitral Tribunal itself. However, in case of any of the eventualities mentioned in section 14(1)(a) of the Act, 1996 and the mandate of the arbitrator is sought to be terminated on the ground that the sole arbitrator has become de jure and/or de facto unable to perform his functions or for other reasons fails to act without undue delay, the aggrieved party has to approach the concerned court as defined under section 2(e) of the Act, 1996. The concerned court has to adjudicate on whether, in fact, the sole arbitrator/arbitrators has/have become de jure and de facto unable to perform his/their functions or for other reasons he fails to act without undue delay. The reason why such a dispute is to be raised before the court is that eventualities mentioned in section 14(1)(a) can be said to be a disqualification of the sole arbitrator and therefore, such a dispute/controversy will have to be adjudicated before the concerned court as provided under section 14(2) of the Act, 1996.So far as the termination of the mandate of the arbitrator and/or termination of the proceedings mentioned in other provisions like in section 15(1)(a) where he withdraws from office for any reason; or (b) by or pursuant to an agreement of the parties, the dispute need not be raised before the concerned court. For example, where the sole arbitrator himself withdraws from office for any reason or when both the parties agree to terminate the mandate of the arbitrator and for substitution of the arbitrator, thereafter, there is no further controversy as either the sole arbitrator himself has withdrawn from office and/or the parties themselves have agreed to terminate the mandate of the arbitrator and to substitute the arbitrator. Thus, there is no question of raising such a dispute before the court. Therefore, the legislation has deliberately provided that the dispute with respect to the termination of the mandate of the arbitrator under section 14(1)(a) alone will have to be raised before the court. Hence, whenever there is a dispute and/or controversy that the mandate of the arbitrator is to be terminated on the grounds mentioned in section 14(1)(a), such a controversy/dispute has to be raised before the concerned court only and after the decision by the concerned court as defined under section 2(e) of the Act, 1996 and ultimately it is held that the mandate of the arbitrator is terminated, thereafter, the arbitrator is to be substituted accordingly, that too, according to the rules that were applicable to the initial appointment of the arbitrator. Therefore, normally and generally, the same procedure is required to be followed which was followed at the time of appointment of the sole arbitrator whose mandate is terminated and/or who is replaced.7.1 It is to be noted that in the present case as such the application under section 14(2) of the Act, 1996 to terminate the mandate of the arbitrator was already pending before the concerned court on the ground that his mandate stood terminated in view of section 14(1)(a) of the Act, 1996.7.2 As observed hereinabove, there is a difference and distinction between the arbitrator to be appointed under section 11(5) and under section 11(6) of the Act, 1996. As observed above, even in the absence of any arbitration agreement in writing between the parties, with consent the parties may refer the dispute for arbitration and appoint a sole arbitrator/arbitrators by mutual consent and parties may agree mutually on a procedure for appointing an arbitrator or arbitrators even in the absence of any written agreement. In such a situation and failing an agreement referred to sub-section (2), the aggrieved party may approach the High Court for appointment of an arbitrator under sub-section (5) of section 11 and in such a situation sub-section (5) of section 11 shall be attracted. However, where there is a written agreement on the appointment procedure agreed upon by the parties and there is a failure to appoint an arbitrator or arbitrators, in that case, sub- section (6) of section 11 shall be attracted and an aggrieved party may approach the High Court for appointment of an arbitrator under sub-section (6) of section 11 of the Act, 1996. Therefore, an application under section 11(6) of the Act, 1996 shall be maintainable only in a case where there is a written agreement and/or the contract containing the arbitration agreement and the appointment procedure agreed upon by the parties, application under section 11(6) of the Act, 1996 shall be maintainable. Otherwise, the application under section 11(6) of the Act, 1996 shall not be maintainable.7.3 In the present case, the parties themselves agreed on a procedure for appointment of the arbitrator and appointed and nominated an arbitrator by mutual consent. Therefore, the application under section 11(6) of the Act, 1996 was not maintainable at all.8. Even otherwise, once the arbitrator was appointed by mutual consent and it was alleged that the mandate of the sole arbitrator stood terminated in view of section 14(1)(a) of the Act, 1996, the application under section 11(6) of the Act, 1996 to terminate the mandate of the arbitrator in view of section 14(1)(a) of the Act shall not be maintainable. Once the appointment of the arbitrator is made, the dispute whether the mandate of the arbitrator has been terminated on the grounds set out in section 14(1)(a) of the Act, shall not have to be decided in an application under section 11(6) of the Act, 1996. Such a dispute cannot be decided on an application under section 11(6) of the Act and the aggrieved party has to approach the concerned court as per sub-section (2) of section 14 of the Act. In the case of Antrix Corporation Limited (supra) in para 31 and 33, it is observed and held as under: -31. The matter is not as complex as it seems and in our view, once the arbitration agreement had been invoked by Devas and a nominee arbitrator had also been appointed by it, the arbitration agreement could not have been invoked for a second time by the petitioner, which was fully aware of the appointment made by the respondent. It would lead to an anomalous state of affairs if the appointment of an arbitrator once made, could be questioned in a subsequent proceeding initiated by the other party also for the appointment of an arbitrator. In our view, while the petitioner was certainly entitled to challenge the appointment of the arbitrator at the instance of Devas, it could not do so by way of an independent proceeding under Section 11(6) of the 1996 Act. While power has been vested in the Chief Justice to appoint an arbitrator under Section 11(6) of the 1996 Act, such appointment can be questioned under Section 13 thereof. In a proceeding under Section 11 of the 1996 Act, the Chief Justice cannot replace one arbitrator already appointed in exercise of the arbitration agreement.33. Sub-section (6) of Section 11 of the 1996 Act, quite categorically provides that where the parties fail to act in terms of a procedure agreed upon by them, the provisions of sub-section (6) may be invoked by any of the parties. Where in terms of the agreement, the arbitration clause has already been invoked by one of the parties thereto under the ICC Rules, the provisions of sub-section (6) cannot be invoked again, and, in case the other party is dissatisfied or aggrieved by the appointment of an arbitrator in terms of the agreement, his/its remedy would be by way of a petition under Section 13, and, thereafter, under Section 34 of the 1996 Act.9. Following the aforesaid decision in the subsequent decision of this Court in the case of S.P. Singla Constructions Private Limited (supra), it is observed and held by this Court that once the arbitrator had been appointed as per clause 65 of the agreement (in that case) and as per provisions of the law, the arbitration agreement could not have been invoked for second time.9.1 Now so far as reliance being placed upon the decisions of this Court by learned counsel appearing on behalf of respondent No. 1 in the cases of ACC Limited (supra) and Uttar Pradesh State Bridge Corporation Limited (supra) are concerned as such there cannot be any dispute with respect to the position of law laid down by this Court in the aforesaid decisions to the effect that in case of any of the eventualities occurring as mentioned in section 14 and 15 of the Act, 1996, the mandate of the arbitrator shall stand terminated. However, the question is in a case where there is a dispute/controversy on the mandate of the arbitration being terminated on the ground set out in section 14(1)(a) of the Act, whether such a dispute shall have to be raised before the concerned court defined under section 2(e) of the Act or such a dispute can be considered on an application under section 11(6) of the Act? Before this Court in the aforesaid decisions such a controversy was not raised. Therefore, the aforesaid decisions shall not be of any assistance to respondents and/or the same shall not be applicable to the facts of the case on hand, while deciding the issue, whether termination of the mandate of the arbitrator on the ground mentioned under section 14(1)(a) of the Act, 1996 can be decided under section 14(2) or under section 11(6) of the Act, 1996.10. It is to be noted that as such in the present case the proceedings before the concerned court under section 14(2) of the Act, 1996 at the instance of respondent No. 1 and 3 herein to terminate the mandate of the sole respondent under section 14(1)(a) of the Act were already pending before the concerned court when respondent No. 1 moved an application under section 11(6) of the Act and such a dispute was at large before the court in a proceeding under section 14(2) of the Act.11. In view of the aforesaid discussion and for the reasons stated above, it is observed and held as under: -(i) That there is a difference and distinction between section 11(5) and section 11(6) of the Act, 1996;(ii) In a case where there is no written agreement between the parties on the procedure for appointing an arbitrator or arbitrators, parties are free to agree on a procedure by mutual consent and/or agreement and the dispute can be referred to a sole arbitrator/arbitrators who can be appointed by mutual consent and failing any agreement referred to section 11(2), section 11(5) of the Act shall be attracted and in such a situation, the application for appointment of arbitrator or arbitrators shall be maintainable under section 11(5) of the Act and not under section 11(6) of the Act;(iii) In a case where there is a written agreement and/or contract containing the arbitration agreement and the appointment or procedure is agreed upon by the parties, an application under section 11(6) of the Act shall be maintainable and the High Court or its nominee can appoint an arbitrator or arbitrators in case any of the eventualities occurring under section 11(6) (a) to (c) of the Act;(iv) Once the dispute is referred to arbitration and the sole arbitrator is appointed by the parties by mutual consent and the arbitrator/arbitrators is/are so appointed, the arbitration agreement cannot be invoked for the second time;(v) In a case where there is a dispute/controversy on the mandate of the arbitrator being terminated on the ground mentioned in section 14(1)(a), such a dispute has to be raised before the court, defined under section 2(e) of the Act, 1996 and such a dispute cannot be decided on an application filed under section 11(6) of the Act, 1996.12. Now the next question which is posed for consideration of this Court is whether the learned Trial Court was justified in rejecting the application submitted by the appellant, which was filed to reject the applications under section 14 of the Act,in exercise of powers under Order VII Rule 11 of CPC is concerned, having gone through the averments in the application under Order VII Rule 11 of CPC, it appears and it is not in dispute that the application under section 14(2) of the Act was sought to be rejected on the ground that there was no undue delay on the part of the arbitrator and therefore, his mandate is not required to be terminated under section 14(1)(a) of the Act, 1996. However, such a dispute is to be adjudicated on merits by the concerned court before whom the proceedings under section 14(2) of the Act were initiated and at the most, it can be said to be the defence, which was to be adjudicated by the concerned court. As per the settled position of law, at the stage of deciding the application under Order VII Rule 11 of CPC only the averments and allegations in the application/plaint are to be considered and not the written statement and/or reply to the application and/or the defence. Therefore, as such the learned Trial Court rightly dismissed the application under Order VII Rule 11 of CPC. | 0 | 8,940 | 2,683 | ### 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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terms of the agreement, the arbitration clause has already been invoked by one of the parties thereto under the ICC Rules, the provisions of sub-section (6) cannot be invoked again, and, in case the other party is dissatisfied or aggrieved by the appointment of an arbitrator in terms of the agreement, his/its remedy would be by way of a petition under Section 13, and, thereafter, under Section 34 of the 1996 Act. 9. Following the aforesaid decision in the subsequent decision of this Court in the case of S.P. Singla Constructions Private Limited (supra), it is observed and held by this Court that once the arbitrator had been appointed as per clause 65 of the agreement (in that case) and as per provisions of the law, the arbitration agreement could not have been invoked for second time. 9.1 Now so far as reliance being placed upon the decisions of this Court by learned counsel appearing on behalf of respondent No. 1 in the cases of ACC Limited (supra) and Uttar Pradesh State Bridge Corporation Limited (supra) are concerned as such there cannot be any dispute with respect to the position of law laid down by this Court in the aforesaid decisions to the effect that in case of any of the eventualities occurring as mentioned in section 14 and 15 of the Act, 1996, the mandate of the arbitrator shall stand terminated. However, the question is in a case where there is a dispute/controversy on the mandate of the arbitration being terminated on the ground set out in section 14(1)(a) of the Act, whether such a dispute shall have to be raised before the concerned court defined under section 2(e) of the Act or such a dispute can be considered on an application under section 11(6) of the Act? Before this Court in the aforesaid decisions such a controversy was not raised. Therefore, the aforesaid decisions shall not be of any assistance to respondents and/or the same shall not be applicable to the facts of the case on hand, while deciding the issue, whether termination of the mandate of the arbitrator on the ground mentioned under section 14(1)(a) of the Act, 1996 can be decided under section 14(2) or under section 11(6) of the Act, 1996. 10. It is to be noted that as such in the present case the proceedings before the concerned court under section 14(2) of the Act, 1996 at the instance of respondent No. 1 and 3 herein to terminate the mandate of the sole respondent under section 14(1)(a) of the Act were already pending before the concerned court when respondent No. 1 moved an application under section 11(6) of the Act and such a dispute was at large before the court in a proceeding under section 14(2) of the Act. 11. In view of the aforesaid discussion and for the reasons stated above, it is observed and held as under: - (i) That there is a difference and distinction between section 11(5) and section 11(6) of the Act, 1996; (ii) In a case where there is no written agreement between the parties on the procedure for appointing an arbitrator or arbitrators, parties are free to agree on a procedure by mutual consent and/or agreement and the dispute can be referred to a sole arbitrator/arbitrators who can be appointed by mutual consent and failing any agreement referred to section 11(2), section 11(5) of the Act shall be attracted and in such a situation, the application for appointment of arbitrator or arbitrators shall be maintainable under section 11(5) of the Act and not under section 11(6) of the Act; (iii) In a case where there is a written agreement and/or contract containing the arbitration agreement and the appointment or procedure is agreed upon by the parties, an application under section 11(6) of the Act shall be maintainable and the High Court or its nominee can appoint an arbitrator or arbitrators in case any of the eventualities occurring under section 11(6) (a) to (c) of the Act; (iv) Once the dispute is referred to arbitration and the sole arbitrator is appointed by the parties by mutual consent and the arbitrator/arbitrators is/are so appointed, the arbitration agreement cannot be invoked for the second time; (v) In a case where there is a dispute/controversy on the mandate of the arbitrator being terminated on the ground mentioned in section 14(1)(a), such a dispute has to be raised before the court, defined under section 2(e) of the Act, 1996 and such a dispute cannot be decided on an application filed under section 11(6) of the Act, 1996. 12. Now the next question which is posed for consideration of this Court is whether the learned Trial Court was justified in rejecting the application submitted by the appellant, which was filed to reject the applications under section 14 of the Act, in exercise of powers under Order VII Rule 11 of CPC is concerned, having gone through the averments in the application under Order VII Rule 11 of CPC, it appears and it is not in dispute that the application under section 14(2) of the Act was sought to be rejected on the ground that there was no undue delay on the part of the arbitrator and therefore, his mandate is not required to be terminated under section 14(1)(a) of the Act, 1996. However, such a dispute is to be adjudicated on merits by the concerned court before whom the proceedings under section 14(2) of the Act were initiated and at the most, it can be said to be the defence, which was to be adjudicated by the concerned court. As per the settled position of law, at the stage of deciding the application under Order VII Rule 11 of CPC only the averments and allegations in the application/plaint are to be considered and not the written statement and/or reply to the application and/or the defence. Therefore, as such the learned Trial Court rightly dismissed the application under Order VII Rule 11 of CPC.
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(6) may be invoked by any of the parties. Where in terms of the agreement, the arbitration clause has already been invoked by one of the parties thereto under the ICC Rules, the provisions of sub-section (6) cannot be invoked again, and, in case the other party is dissatisfied or aggrieved by the appointment of an arbitrator in terms of the agreement, his/its remedy would be by way of a petition under Section 13, and, thereafter, under Section 34 of the 1996 Act.9. Following the aforesaid decision in the subsequent decision of this Court in the case of S.P. Singla Constructions Private Limited (supra), it is observed and held by this Court that once the arbitrator had been appointed as per clause 65 of the agreement (in that case) and as per provisions of the law, the arbitration agreement could not have been invoked for second time.9.1 Now so far as reliance being placed upon the decisions of this Court by learned counsel appearing on behalf of respondent No. 1 in the cases of ACC Limited (supra) and Uttar Pradesh State Bridge Corporation Limited (supra) are concerned as such there cannot be any dispute with respect to the position of law laid down by this Court in the aforesaid decisions to the effect that in case of any of the eventualities occurring as mentioned in section 14 and 15 of the Act, 1996, the mandate of the arbitrator shall stand terminated. However, the question is in a case where there is a dispute/controversy on the mandate of the arbitration being terminated on the ground set out in section 14(1)(a) of the Act, whether such a dispute shall have to be raised before the concerned court defined under section 2(e) of the Act or such a dispute can be considered on an application under section 11(6) of the Act? Before this Court in the aforesaid decisions such a controversy was not raised. Therefore, the aforesaid decisions shall not be of any assistance to respondents and/or the same shall not be applicable to the facts of the case on hand, while deciding the issue, whether termination of the mandate of the arbitrator on the ground mentioned under section 14(1)(a) of the Act, 1996 can be decided under section 14(2) or under section 11(6) of the Act, 1996.10. It is to be noted that as such in the present case the proceedings before the concerned court under section 14(2) of the Act, 1996 at the instance of respondent No. 1 and 3 herein to terminate the mandate of the sole respondent under section 14(1)(a) of the Act were already pending before the concerned court when respondent No. 1 moved an application under section 11(6) of the Act and such a dispute was at large before the court in a proceeding under section 14(2) of the Act.11. In view of the aforesaid discussion and for the reasons stated above, it is observed and held as under: -(i) That there is a difference and distinction between section 11(5) and section 11(6) of the Act, 1996;(ii) In a case where there is no written agreement between the parties on the procedure for appointing an arbitrator or arbitrators, parties are free to agree on a procedure by mutual consent and/or agreement and the dispute can be referred to a sole arbitrator/arbitrators who can be appointed by mutual consent and failing any agreement referred to section 11(2), section 11(5) of the Act shall be attracted and in such a situation, the application for appointment of arbitrator or arbitrators shall be maintainable under section 11(5) of the Act and not under section 11(6) of the Act;(iii) In a case where there is a written agreement and/or contract containing the arbitration agreement and the appointment or procedure is agreed upon by the parties, an application under section 11(6) of the Act shall be maintainable and the High Court or its nominee can appoint an arbitrator or arbitrators in case any of the eventualities occurring under section 11(6) (a) to (c) of the Act;(iv) Once the dispute is referred to arbitration and the sole arbitrator is appointed by the parties by mutual consent and the arbitrator/arbitrators is/are so appointed, the arbitration agreement cannot be invoked for the second time;(v) In a case where there is a dispute/controversy on the mandate of the arbitrator being terminated on the ground mentioned in section 14(1)(a), such a dispute has to be raised before the court, defined under section 2(e) of the Act, 1996 and such a dispute cannot be decided on an application filed under section 11(6) of the Act, 1996.12. Now the next question which is posed for consideration of this Court is whether the learned Trial Court was justified in rejecting the application submitted by the appellant, which was filed to reject the applications under section 14 of the Act,in exercise of powers under Order VII Rule 11 of CPC is concerned, having gone through the averments in the application under Order VII Rule 11 of CPC, it appears and it is not in dispute that the application under section 14(2) of the Act was sought to be rejected on the ground that there was no undue delay on the part of the arbitrator and therefore, his mandate is not required to be terminated under section 14(1)(a) of the Act, 1996. However, such a dispute is to be adjudicated on merits by the concerned court before whom the proceedings under section 14(2) of the Act were initiated and at the most, it can be said to be the defence, which was to be adjudicated by the concerned court. As per the settled position of law, at the stage of deciding the application under Order VII Rule 11 of CPC only the averments and allegations in the application/plaint are to be considered and not the written statement and/or reply to the application and/or the defence. Therefore, as such the learned Trial Court rightly dismissed the application under Order VII Rule 11 of CPC.
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Manubhai Jehtalal Patel and Another Vs. State of Gujarat and Others | 1. These appeals by certificate arise from the decision of the High Court of Gujarat in Special Civil Application No. 46 of 1966 and connected petitions. The certificate was granted under unamended Article 133(1)(c). The substantial question of law of general public importance which appealed to the High Court to grant certificate was about the vires of Sections 4, 5-A and 6 of the Land Acquisition Act, 1894.2. Vires of Section 4 were examined by this Court in Bai Malimabu v. State of Gujarat [AIR 1978 SC 515 : (1978) 2 SCC 373 ] and it was held that Section 4 was intra vires the Constitution. In reaching this conclusion this Court referred to the two earlier decisions of this Court on the subject and held that Section 4 was intra vires the Constitution. Nothing was made out to depart from this view. The reasons which weighed with this Court to uphold the validity of Section 4 would mutatis mutandis apply to the challenge to the vires of Sections 5-A and 6 of the Land Acquisition Act. We accordingly hold the Sections 5-A and 6 of the Land Acquisition Act are intra vires the Constitution. In fact that disposes of the certificate.3. However, Mr. Gopal Subramaniam learned counsel for the appellants in all these appeals raised two other contentions. The first contention canvassed by him on behalf of the appellants is that the Gujarat State Road Transport Corporation is a company within the meaning of the expression in the Companies Act as well as in Part VII of the Land Acquisition Act and this being an acquisition for a company it was obligatory to comply with the provisions contained in Part VII as well as Company Acquisition Rules and that admittedly having not been done, the acquisition is contrary to law, illegal and invalid. Land is indisputably acquired for the benefit of Gujarat State Road Transport Corporation which is a company. Even where land is acquired for a company, the State Government has the power to acquire land for a public purpose from the revenue of the State. In other words, this is an acquisition for public purpose with contribution from the State revenue. The State is acquiring land to carry out public purpose with the instrumentality of the Gujarat State Road Transport Corporation. It is not an acquisition for a company with the funds exclusively provided by the company which would attract Part VII of the Land Acquisition Act. In our opinion, the High Court is right in reaching the conclusion that neither Part VII of the Land Acquisition Act nor the Company Acquisition Rules would be attracted. Therefore, we are in agreement with the conclusions reached by the High Court.4. The last contention of Mr. Gopal Subramaniam is that the contribution from the public exchequer in the amount of Re 1 which enable the High Court to hold that it was an acquisition for a public purpose for a company is in fact illusory and therefore, it cannot be said that the power to acquire land has been exercised by the State Government for a public purpose. In Somavanti v. State of Punjab [(1963) 2 SCR 774 : AIR 1963 SC 151 : (1963) 33 Com Cas 745] a contribution of Rs. 100 from the public exchequer was held sufficient to come to the conclusion that the acquisition is for a public purpose with the aid of State fund. It is not correct to determine the validity of acquisition keeping in view the amount of contribution but the motivation for making the contribution would help in determining the bona fides of acquisition. Further in Malimabu case [AIR 1978 SC 515 : (1978) 2 SCC 373 ] contribution of Re 1 from the State revenue was held adequate to hold that acquisition was for public purpose with State fund. Therefore the contribution of Re 1 from public exchequer cannot be dubbed as illusory so as to invalidate the acquisition. | 0[ds]Even where land is acquired for a company, the State Government has the power to acquire land for a public purpose from the revenue of the State. In other words, this is an acquisition for public purpose with contribution from the State revenue. The State is acquiring land to carry out public purpose with the instrumentality of the Gujarat State Road Transport Corporation. It is not an acquisition for a company with the funds exclusively provided by the company which would attract Part VII of the Land Acquisition Act. In our opinion, the High Court is right in reaching the conclusion that neither Part VII of the Land Acquisition Act nor the Company Acquisition Rules would be attracted. Therefore, we are in agreement with the conclusions reached by the Highis not correct to determine the validity of acquisition keeping in view the amount of contribution but the motivation for making the contribution would help in determining the bona fides of acquisition. Further in Malimabu case [AIR 1978 SC 515 : (1978) 2 SCC 373 ] contribution of Re 1 from the State revenue was held adequate to hold that acquisition was for public purpose with State fund. Therefore the contribution of Re 1 from public exchequer cannot be dubbed as illusory so as to invalidate the acquisition. | 0 | 716 | 237 | ### 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. These appeals by certificate arise from the decision of the High Court of Gujarat in Special Civil Application No. 46 of 1966 and connected petitions. The certificate was granted under unamended Article 133(1)(c). The substantial question of law of general public importance which appealed to the High Court to grant certificate was about the vires of Sections 4, 5-A and 6 of the Land Acquisition Act, 1894.2. Vires of Section 4 were examined by this Court in Bai Malimabu v. State of Gujarat [AIR 1978 SC 515 : (1978) 2 SCC 373 ] and it was held that Section 4 was intra vires the Constitution. In reaching this conclusion this Court referred to the two earlier decisions of this Court on the subject and held that Section 4 was intra vires the Constitution. Nothing was made out to depart from this view. The reasons which weighed with this Court to uphold the validity of Section 4 would mutatis mutandis apply to the challenge to the vires of Sections 5-A and 6 of the Land Acquisition Act. We accordingly hold the Sections 5-A and 6 of the Land Acquisition Act are intra vires the Constitution. In fact that disposes of the certificate.3. However, Mr. Gopal Subramaniam learned counsel for the appellants in all these appeals raised two other contentions. The first contention canvassed by him on behalf of the appellants is that the Gujarat State Road Transport Corporation is a company within the meaning of the expression in the Companies Act as well as in Part VII of the Land Acquisition Act and this being an acquisition for a company it was obligatory to comply with the provisions contained in Part VII as well as Company Acquisition Rules and that admittedly having not been done, the acquisition is contrary to law, illegal and invalid. Land is indisputably acquired for the benefit of Gujarat State Road Transport Corporation which is a company. Even where land is acquired for a company, the State Government has the power to acquire land for a public purpose from the revenue of the State. In other words, this is an acquisition for public purpose with contribution from the State revenue. The State is acquiring land to carry out public purpose with the instrumentality of the Gujarat State Road Transport Corporation. It is not an acquisition for a company with the funds exclusively provided by the company which would attract Part VII of the Land Acquisition Act. In our opinion, the High Court is right in reaching the conclusion that neither Part VII of the Land Acquisition Act nor the Company Acquisition Rules would be attracted. Therefore, we are in agreement with the conclusions reached by the High Court.4. The last contention of Mr. Gopal Subramaniam is that the contribution from the public exchequer in the amount of Re 1 which enable the High Court to hold that it was an acquisition for a public purpose for a company is in fact illusory and therefore, it cannot be said that the power to acquire land has been exercised by the State Government for a public purpose. In Somavanti v. State of Punjab [(1963) 2 SCR 774 : AIR 1963 SC 151 : (1963) 33 Com Cas 745] a contribution of Rs. 100 from the public exchequer was held sufficient to come to the conclusion that the acquisition is for a public purpose with the aid of State fund. It is not correct to determine the validity of acquisition keeping in view the amount of contribution but the motivation for making the contribution would help in determining the bona fides of acquisition. Further in Malimabu case [AIR 1978 SC 515 : (1978) 2 SCC 373 ] contribution of Re 1 from the State revenue was held adequate to hold that acquisition was for public purpose with State fund. Therefore the contribution of Re 1 from public exchequer cannot be dubbed as illusory so as to invalidate the acquisition.
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0
### Explanation:
Even where land is acquired for a company, the State Government has the power to acquire land for a public purpose from the revenue of the State. In other words, this is an acquisition for public purpose with contribution from the State revenue. The State is acquiring land to carry out public purpose with the instrumentality of the Gujarat State Road Transport Corporation. It is not an acquisition for a company with the funds exclusively provided by the company which would attract Part VII of the Land Acquisition Act. In our opinion, the High Court is right in reaching the conclusion that neither Part VII of the Land Acquisition Act nor the Company Acquisition Rules would be attracted. Therefore, we are in agreement with the conclusions reached by the Highis not correct to determine the validity of acquisition keeping in view the amount of contribution but the motivation for making the contribution would help in determining the bona fides of acquisition. Further in Malimabu case [AIR 1978 SC 515 : (1978) 2 SCC 373 ] contribution of Re 1 from the State revenue was held adequate to hold that acquisition was for public purpose with State fund. Therefore the contribution of Re 1 from public exchequer cannot be dubbed as illusory so as to invalidate the acquisition.
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Ram Autar Singh Bhadauria Vs. Ram Gopal Singh And Others | officer had rightly accepted 301 votes be cause Rule 47 was directory and not mandatory. It was contended that the electors were not at fault and that the wrong ballot papers were issued due to the lapse on the part of the Returning officer and that to reject the votes of the electors for the failure of the Polling officer to deliver the correct ballot papers under Rule 23 would be to disfranchise them, and that a construction which involve such a consequence should not be adopted. This Court repelled the contention in these terms:"If the word shall is thus to be construed in a mandatory sense in Rule 47(1) (a), (b) and (d), it would be proper to construe it in the same sense in Rule 47(1) (c) also. There is another reason which clinches the matter against the 1st respondent. The practical bearing of the distinction between a provision which is mandatory and one which is directory is that while the former must be strictly observed in the case of the latter it is sufficient that it is substantially complied with. How is this rule to be worked when the Rule provides that a ballot paper shall be rejected ? There can be no degrees of compliance so far as rejection is concerned, and that is conclusive to show that the provision i s mandatory."16. The above observations are apposite. Judged by the guiding principle enunciated therein, it can safely be said that the provisions of rule 56(2) (a) and (b) read with Rule 38, are mandatory and not merely directory.17. It was contended by the learned Counsel for the respondent before us, that the Provisos to sub-rule (2) of Rule 56 are only illustrative and not exhaustive, and consequently, the principles underlying these Provisos would give a discretion to the Returning Officer not to reject a ballot paper on the ground of a defect caused by mistake or negligence of the Presiding officer/or Polling officer, notwithstanding that such defect is one mentioned in clauses (a), (b), (c), (d), (e) and (f) of Rule 56(2). This contention is not tenable. The word shall used in the opening Part of sub-rule (2) read in the context of the general scheme of this Rule shows that it is mandatory. Sub-rule (5)puts the matter beyond doubt. It says that "every ballot paper which is not rejected under this sub-rule shall be counted as one valid vote". Rule 56 is a complete code by itself. The Provisos to Sub-rule (2) are exhaustive of the kinds of defects which the Returning officer may con done, if those defects are caused by the mistake or failure of the Polling Staff. The first Proviso is in terms limited to defects falling under Clause (g) or (h). Neither of these Provisos appears to be attracted if the A defects is any of the defects mentioned in clauses (a) or (b).The learned Judge of the High Court has not applied his mind as to whether the facts alleged in Paragraph 11(b) of the petition, if correct, would fall within the mischief of clause (d) of Rule 5 6(2). This will necessarily require consideration of the issue whether there has been an infringement if any of the provisions of Rule 38, referable to clause (a) of Rule 56(2). Another point in this context, for consideration will be whether the "counterfoil" can be said to be an integral part of the "ballot paper" so that any writing or marks of identification of the voter on a counterfoil issued to the voter by mistake, is to be deemed to be a defect of the nature mentioned in clause (a) of Rule 56(2). The High Court has not at all addressed itself any of these questions.18. Times out of number, this Court has pointed out that a general Scrutiny and recount of the ballot papers should not be lightly ordered. Before making such an extraordinary order, the Court must be satisfied that all the material facts have been pleaded and proved and that such a course is imperatively necessary in the interest of justice. In the case in hand. the allegations in the election petition (vide Paragraph 11) are confined to 41 plus 9, total 50 votes only (vide Paragraph). There was no foundation in the petition for ordering a general recount. Nor could the Additional Pleas in the written statement of the returned candidate be take n into account for making an order for general inspection of the ballots, because investigation of those pleas was beyond the scope of the case alleged in Para 11 of the petition falling under section 100(1) (d) (iii) of the Act.19. We have said enough. We will close the discussion by repeating the note of caution that this Court speaking through V. Krishna Iyer J. recently sounded in Chanda Singh v. Ch. Shiv Ram(1)."A democracy runs smooth on the wheels of periodic and pure elections. The verdict at the polls announced by the Returning Officers leads to the formation of Governments. A certain amount of stability in the electoral process is essential. If the counting of the ballots a re interfered with by too frequent and flippant recounts by courts a new system is introduced through the judicial instrument. Moreover, the secrecy of the ballot which is sacrosanct becomes exposed to deleterious prying, if recount of votes is made easy. The general reaction, if there is judicial relaxation on this issue, may well be a fresh pressure on luckless candidates, particularly when the winning margin is only of a few hundred votes as here, to ask for a recount Micawberishly looking for numerical good fortune or windfall of chance discovery of illegal rejection or reception of ballots. This may tend to a dangerous disorientation which invades the democratic order by injecting widespread scope for reopening of declared returns, unless the Court restricts recourse to recount to cases of genuine apprehension of miscount or illegality or other compulsions of justice necessitating such a drastic step."20. | 1[ds]Having heard learned Counsel on both sides, we are or opinion that the order made by the High Court for a general scrutiny and recount of all the ballot papers cast at the election, was notreturned candidate had not categorically and specifically admitted the allegations made in the election petition with regard to the improper rejection of the ballot-papers. This will be clear from a comparative reading of Paragraph 11 (a) and (b) of the petition and the answers thereto given in the written statement, which have been reproduced above verbatim. It is to be noted that the reply of the returned candidate to the contents of the aforesaid sub-paras (a) and (b) starts with a denial or a non-admission. Such a traverse is then followed by qualified and vague admissions that some ballot-papers were rejected because they were not marked with the instrument meant for this purpose, or bore the names or signatures of the voters on the counter-foils that remained attached to them, owing to the mistake of the Presiding Officer. After having thus replied to the petitioners allegations, the returned candidate said that most of these rejected ballots had been cast for him and not for the petitioner. This was a counter-assertion which was not, strictly speaking, relevant to the case set up in thethis place it will be sufficient to say that since the returned candidate in his written statement did not specifically and fully admit all the facts alleged in Paragraph 11 (a) and (b) of the petition, the Court could not dispense with proof of those factsinstance, in reply to the facts alleged in Para 11 (a) of the petition, the returned candidate did not admit that the instrument with which such rejected ballot papers were found stamped, was supplied by the Presiding officer. On the contrary, the reply to sub-para (a) begins with a clear traverse: "that the contents of paragraph No. 11 (a) of the petition are wrong and denied". This denial notwithstanding, the learned Judge appears to have erroneously assumed this fact as admitted by the returned candidate. The parties being at variance on this material point, this issue of fact was required to be proved by the party allegingwe come to the finding of the learned Judge as to the wrong reception and rejection of votes being a common ground between the parties. We have catalogued this finding as ground (b) which is one of the four pillars on which the impugned order rests. This ground, according to Mr. Mukherji, draws particulars support from the "Additional Pleas" set up in the written statement. We do not propose to over-burden this judgment by reproducing all that has been stated in Paragraph 47 to 56 of the written statement under the caption "Additionalwe may say so with respect, in taking these Additional Pleas into account, the learned Judge completely misdirected himself. He overlooked the fact that these Pleas were irrelevant to and beyond the scope of the enquiry into the allegations in the election-petition falling under s. 100(1)(d)(iii) of the Representation of the people Act, 1951. These "Additional Pleas" were in the nature of recriminatory` pleas which could not be investigated in this electionhe instant case, it is a matter of controversy to be decided as to whetherthe recriminatory petition filed by the appellant is within time orabove being the law on the point, it is clear that the learned Judge was in error in ordering general inspection and recount of the total votes polled at the election, merely because in these Additional Pleas the returned candidate also had by way of recrimination, complained of wrong reception and rejection of votes and wrong counting of votes. The pleas at this stage could not be investigated even in the recriminatory petition filed by the returned candidate. They were beyond the scope of the enquiry into the petitioners case which (as set up in Para 11 of the petition) fall under s. 100(1)(d)(iii) of the, the High Court did not properly apply its mind to the question, whetheron the facts alleged in Para 11 (a) and (b) of the petition-assuming the same to be correct-a prima facie case for improper rejection of The 50 ballot papers referred to therein, had been made out.In other words, if the defects in these SO ballot papers were attributable to the mistakes or negligence of the Presiding officer or his staff, would it take those ballot papers out of the mischief of clauses (a) and (b) of Rule 56(2) of the Conduct of Election Rules,object of these rules is to secure not only the secrecy of the ballot but also to eliminate chances of sharp practices in the conduct of elections. Their requirements are therefore mandatory, and a defect arising from their non-observance inexorably entails rejection of the defective ballot paper except to the extent covered by the Provisions to Rulewill be sufficient to reiterate that the provisions of Rules 38 and 56(2) (a) and (b) with which we are concerned in this case are mandatory and strict compliance therewith is essential. Once it is established that the fault specified in clauses (a) or (b) of Rule 56(2) has been committed, there is no option left with the Returning officer but to reject the faulty ballot paper. We would further make it clear that eve n if any such defect as is mentioned in clauses (a) or (b) of Rule 56 is caused by any mistake or failure on the part of the Returning officer or Polling Officer, the Returning officer would be bound to reject the ballot paper on the ground o f such defect. That such is the imperative of Rule 56(2) is clear from the fact that the said clauses (a) and (b) have advisedly been excluded from the first Proviso to Rule 56(2) which gives a limited discretion in the matter of rejection to the Returning officer only where the defect is of a kind mentioned in clauses (g) and (h) of thisabove observations are apposite. Judged by the guiding principle enunciated therein, it can safely be said that the provisions of rule 56(2) (a) and (b) read with Rule 38, are mandatory and not merelycontention is not tenable. The word shall used in the opening Part of sub-rule (2) read in the context of the general scheme of this Rule shows that it is mandatory. Sub-rule (5)puts the matter beyond doubt. It says that "every ballot paper which is not rejected under this sub-rule shall be counted as one valid vote". Rule 56 is a complete code by itself. The Provisos to Sub-rule (2) are exhaustive of the kinds of defects which the Returning officer may con done, if those defects are caused by the mistake or failure of the Polling Staff. The first Proviso is in terms limited to defects falling under Clause (g) or (h). Neither of these Provisos appears to be attracted if the A defects is any of the defects mentioned in clauses (a) or (b).The learned Judge of the High Court has not applied his mind as to whether the facts alleged in Paragraph 11(b) of the petition, if correct, would fall within the mischief of clause (d) of Rule 5 6(2). This will necessarily require consideration of the issue whether there has been an infringement if any of the provisions of Rule 38, referable to clause (a) of Rule 56(2). Another point in this context, for consideration will be whether the "counterfoil" can be said to be an integral part of the "ballot paper" so that any writing or marks of identification of the voter on a counterfoil issued to the voter by mistake, is to be deemed to be a defect of the nature mentioned in clause (a) of Rule 56(2). The High Court has not at all addressed itself any of theseout of number, this Court has pointed out that a general Scrutiny and recount of the ballot papers should not be lightly ordered. Before making such an extraordinary order, the Court must be satisfied that all the material facts have been pleaded and proved and that such a course is imperatively necessary in the interest of justice. In the case in hand. the allegations in the election petition (vide Paragraph 11) are confined to 41 plus 9, total 50 votes only (vide Paragraph). There was no foundation in the petition for ordering a general recount. Nor could the Additional Pleas in the written statement of the returned candidate be take n into account for making an order for general inspection of the ballots, because investigation of those pleas was beyond the scope of the case alleged in Para 11 of the petition falling under section 100(1) (d) (iii) of thehave said enough. We will close the discussion by repeating the note of caution that this Court speaking through V. Krishna Iyer J. recently sounded in Chanda Singh v. Ch. Shiv Ram(1)."A democracy runs smooth on the wheels of periodic and pure elections. The verdict at the polls announced by the Returning Officers leads to the formation of Governments. A certain amount of stability in the electoral process is essential. If the counting of the ballots a re interfered with by too frequent and flippant recounts by courts a new system is introduced through the judicial instrument. Moreover, the secrecy of the ballot which is sacrosanct becomes exposed to deleterious prying, if recount of votes is made easy. The general reaction, if there is judicial relaxation on this issue, may well be a fresh pressure on luckless candidates, particularly when the winning margin is only of a few hundred votes as here, to ask for a recount Micawberishly looking for numerical good fortune or windfall of chance discovery of illegal rejection or reception of ballots. This may tend to a dangerous disorientation which invades the democratic order by injecting widespread scope for reopening of declared returns, unless the Court restricts recourse to recount to cases of genuine apprehension of miscount or illegality or other compulsions of justice necessitating such a drastic step." | 1 | 5,564 | 1,936 | ### 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:
officer had rightly accepted 301 votes be cause Rule 47 was directory and not mandatory. It was contended that the electors were not at fault and that the wrong ballot papers were issued due to the lapse on the part of the Returning officer and that to reject the votes of the electors for the failure of the Polling officer to deliver the correct ballot papers under Rule 23 would be to disfranchise them, and that a construction which involve such a consequence should not be adopted. This Court repelled the contention in these terms:"If the word shall is thus to be construed in a mandatory sense in Rule 47(1) (a), (b) and (d), it would be proper to construe it in the same sense in Rule 47(1) (c) also. There is another reason which clinches the matter against the 1st respondent. The practical bearing of the distinction between a provision which is mandatory and one which is directory is that while the former must be strictly observed in the case of the latter it is sufficient that it is substantially complied with. How is this rule to be worked when the Rule provides that a ballot paper shall be rejected ? There can be no degrees of compliance so far as rejection is concerned, and that is conclusive to show that the provision i s mandatory."16. The above observations are apposite. Judged by the guiding principle enunciated therein, it can safely be said that the provisions of rule 56(2) (a) and (b) read with Rule 38, are mandatory and not merely directory.17. It was contended by the learned Counsel for the respondent before us, that the Provisos to sub-rule (2) of Rule 56 are only illustrative and not exhaustive, and consequently, the principles underlying these Provisos would give a discretion to the Returning Officer not to reject a ballot paper on the ground of a defect caused by mistake or negligence of the Presiding officer/or Polling officer, notwithstanding that such defect is one mentioned in clauses (a), (b), (c), (d), (e) and (f) of Rule 56(2). This contention is not tenable. The word shall used in the opening Part of sub-rule (2) read in the context of the general scheme of this Rule shows that it is mandatory. Sub-rule (5)puts the matter beyond doubt. It says that "every ballot paper which is not rejected under this sub-rule shall be counted as one valid vote". Rule 56 is a complete code by itself. The Provisos to Sub-rule (2) are exhaustive of the kinds of defects which the Returning officer may con done, if those defects are caused by the mistake or failure of the Polling Staff. The first Proviso is in terms limited to defects falling under Clause (g) or (h). Neither of these Provisos appears to be attracted if the A defects is any of the defects mentioned in clauses (a) or (b).The learned Judge of the High Court has not applied his mind as to whether the facts alleged in Paragraph 11(b) of the petition, if correct, would fall within the mischief of clause (d) of Rule 5 6(2). This will necessarily require consideration of the issue whether there has been an infringement if any of the provisions of Rule 38, referable to clause (a) of Rule 56(2). Another point in this context, for consideration will be whether the "counterfoil" can be said to be an integral part of the "ballot paper" so that any writing or marks of identification of the voter on a counterfoil issued to the voter by mistake, is to be deemed to be a defect of the nature mentioned in clause (a) of Rule 56(2). The High Court has not at all addressed itself any of these questions.18. Times out of number, this Court has pointed out that a general Scrutiny and recount of the ballot papers should not be lightly ordered. Before making such an extraordinary order, the Court must be satisfied that all the material facts have been pleaded and proved and that such a course is imperatively necessary in the interest of justice. In the case in hand. the allegations in the election petition (vide Paragraph 11) are confined to 41 plus 9, total 50 votes only (vide Paragraph). There was no foundation in the petition for ordering a general recount. Nor could the Additional Pleas in the written statement of the returned candidate be take n into account for making an order for general inspection of the ballots, because investigation of those pleas was beyond the scope of the case alleged in Para 11 of the petition falling under section 100(1) (d) (iii) of the Act.19. We have said enough. We will close the discussion by repeating the note of caution that this Court speaking through V. Krishna Iyer J. recently sounded in Chanda Singh v. Ch. Shiv Ram(1)."A democracy runs smooth on the wheels of periodic and pure elections. The verdict at the polls announced by the Returning Officers leads to the formation of Governments. A certain amount of stability in the electoral process is essential. If the counting of the ballots a re interfered with by too frequent and flippant recounts by courts a new system is introduced through the judicial instrument. Moreover, the secrecy of the ballot which is sacrosanct becomes exposed to deleterious prying, if recount of votes is made easy. The general reaction, if there is judicial relaxation on this issue, may well be a fresh pressure on luckless candidates, particularly when the winning margin is only of a few hundred votes as here, to ask for a recount Micawberishly looking for numerical good fortune or windfall of chance discovery of illegal rejection or reception of ballots. This may tend to a dangerous disorientation which invades the democratic order by injecting widespread scope for reopening of declared returns, unless the Court restricts recourse to recount to cases of genuine apprehension of miscount or illegality or other compulsions of justice necessitating such a drastic step."20.
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### Explanation:
in Para 11 (a) and (b) of the petition-assuming the same to be correct-a prima facie case for improper rejection of The 50 ballot papers referred to therein, had been made out.In other words, if the defects in these SO ballot papers were attributable to the mistakes or negligence of the Presiding officer or his staff, would it take those ballot papers out of the mischief of clauses (a) and (b) of Rule 56(2) of the Conduct of Election Rules,object of these rules is to secure not only the secrecy of the ballot but also to eliminate chances of sharp practices in the conduct of elections. Their requirements are therefore mandatory, and a defect arising from their non-observance inexorably entails rejection of the defective ballot paper except to the extent covered by the Provisions to Rulewill be sufficient to reiterate that the provisions of Rules 38 and 56(2) (a) and (b) with which we are concerned in this case are mandatory and strict compliance therewith is essential. Once it is established that the fault specified in clauses (a) or (b) of Rule 56(2) has been committed, there is no option left with the Returning officer but to reject the faulty ballot paper. We would further make it clear that eve n if any such defect as is mentioned in clauses (a) or (b) of Rule 56 is caused by any mistake or failure on the part of the Returning officer or Polling Officer, the Returning officer would be bound to reject the ballot paper on the ground o f such defect. That such is the imperative of Rule 56(2) is clear from the fact that the said clauses (a) and (b) have advisedly been excluded from the first Proviso to Rule 56(2) which gives a limited discretion in the matter of rejection to the Returning officer only where the defect is of a kind mentioned in clauses (g) and (h) of thisabove observations are apposite. Judged by the guiding principle enunciated therein, it can safely be said that the provisions of rule 56(2) (a) and (b) read with Rule 38, are mandatory and not merelycontention is not tenable. The word shall used in the opening Part of sub-rule (2) read in the context of the general scheme of this Rule shows that it is mandatory. Sub-rule (5)puts the matter beyond doubt. It says that "every ballot paper which is not rejected under this sub-rule shall be counted as one valid vote". Rule 56 is a complete code by itself. The Provisos to Sub-rule (2) are exhaustive of the kinds of defects which the Returning officer may con done, if those defects are caused by the mistake or failure of the Polling Staff. The first Proviso is in terms limited to defects falling under Clause (g) or (h). Neither of these Provisos appears to be attracted if the A defects is any of the defects mentioned in clauses (a) or (b).The learned Judge of the High Court has not applied his mind as to whether the facts alleged in Paragraph 11(b) of the petition, if correct, would fall within the mischief of clause (d) of Rule 5 6(2). This will necessarily require consideration of the issue whether there has been an infringement if any of the provisions of Rule 38, referable to clause (a) of Rule 56(2). Another point in this context, for consideration will be whether the "counterfoil" can be said to be an integral part of the "ballot paper" so that any writing or marks of identification of the voter on a counterfoil issued to the voter by mistake, is to be deemed to be a defect of the nature mentioned in clause (a) of Rule 56(2). The High Court has not at all addressed itself any of theseout of number, this Court has pointed out that a general Scrutiny and recount of the ballot papers should not be lightly ordered. Before making such an extraordinary order, the Court must be satisfied that all the material facts have been pleaded and proved and that such a course is imperatively necessary in the interest of justice. In the case in hand. the allegations in the election petition (vide Paragraph 11) are confined to 41 plus 9, total 50 votes only (vide Paragraph). There was no foundation in the petition for ordering a general recount. Nor could the Additional Pleas in the written statement of the returned candidate be take n into account for making an order for general inspection of the ballots, because investigation of those pleas was beyond the scope of the case alleged in Para 11 of the petition falling under section 100(1) (d) (iii) of thehave said enough. We will close the discussion by repeating the note of caution that this Court speaking through V. Krishna Iyer J. recently sounded in Chanda Singh v. Ch. Shiv Ram(1)."A democracy runs smooth on the wheels of periodic and pure elections. The verdict at the polls announced by the Returning Officers leads to the formation of Governments. A certain amount of stability in the electoral process is essential. If the counting of the ballots a re interfered with by too frequent and flippant recounts by courts a new system is introduced through the judicial instrument. Moreover, the secrecy of the ballot which is sacrosanct becomes exposed to deleterious prying, if recount of votes is made easy. The general reaction, if there is judicial relaxation on this issue, may well be a fresh pressure on luckless candidates, particularly when the winning margin is only of a few hundred votes as here, to ask for a recount Micawberishly looking for numerical good fortune or windfall of chance discovery of illegal rejection or reception of ballots. This may tend to a dangerous disorientation which invades the democratic order by injecting widespread scope for reopening of declared returns, unless the Court restricts recourse to recount to cases of genuine apprehension of miscount or illegality or other compulsions of justice necessitating such a drastic step."
|
P.C. Patel And Ors Vs. Smt. T.H. Pathak And Ors | have been examined by the High Court and it has given satisfactory reasons for taking the view that this was not so. It will be enough to say that the Dircctorate of Civil Supplies (Accounts) was not included in appendix B to the Scheme which formed part of the resolution dated November 21, 1960 by which certain posts were brought within the purview of the Public Service Commission. It has in fact been admitted in the affidavit of K.K. Joshipura, Under Secretary to the State Government, dated September 4, 1974, that it was "true the office of the D.C.S.(A) was not under the purview of the Gujarat Public Service Commission at the time of the appointment of the petitioners." There is therefore nothing wrong with the view which has prevailed with the High Court that the Directorate did not come under the purview of the Public Service Commission until March 1, 1969.3. As regards the Centralised Recruitment Scheme and the resolution of January 21, 1963, the High Court has again rightly held that the resolution applied to recruitment of clerks in district and regional offices and as the Directorate of Civil Supplies (Accounts) was not such an office, the Scheme did not apply to it. We have gone through the other resolution dated July 9, 1964, which modified the Scheme, but here again the High Court has rightly taken the view that merely because of use of the expression "state cadre", it could not be said that the modified scheme was made applicable to the Directorate. We have gone through the whole of the Scheme and we have no doubt that it governed recruitment to district and regional offices, and there is no justification for the argument that it become applicable for recruitment of clerks in the Directorate of Civil Supplies (Accounts) as well. As it is, nothing has been shown to justify the view taken by the State Government that the initial appointments of the writ petitioners were irregular and had to be regularised in accordance with the provisions of rule 29 of the Rules. The rule provides as follows, --"29. Notwithstanding anything contained in these rules the following eases shall be regularised in the manner shown below in relaxation of their upper age, provisions of Recruitment Rules concerned and/or rules for pre-service training made by Government in this behalf to the extent indicated below:--(1) (a) Persons initially recruited otherwise than through the Gujarat Public Service Commission, or Centralized Recruitment Scheme, as clerks, clerk-typists or typists in the offices to which the Rules apply, and who have rendered not less than 2 years continuous service, as clerk or clerk-typist or typist, as the case may be, as on 31st December, 1968 in one or more offices and who are continuing in Government service as clerks, clerk-typists or typists, as the case may be, on the date of this notification or such persons whose names are kept on the Waiting List for provision al appointment for the reason that they had to be discharged for want of posts even though they had rendered 2 years continuous service as on 31st December, 1968 shall be required to appear at the special interview and/or the special typing test to be held for them for their selection for appointment to the post of clerk, clerk-typist or typist, as the case may be."4. Then follow the other sub-rules with which we are not concerned. The writ petitioners were initially recruited otherwise than through the Gujarat Public Service Commission and the Centralised Recruitment Scheme and they had rendered not less than two years continuous service as clerk, clerk-typists or typists by December 31, 1968, but, as would appear from the history of their service, it could not be said that they were continuing in Government service as clerks, clerk-typists or typists on April 17, 1970, which was the date of the notification of the Rules. The State Government therefore again erred in thinking that their service was governed by rule 29(1) (a). So when the appointments of the writ petitioners were not irregular, and they were not continuing in Government service as clerks, clerk-typists or typists on April 17. 1970, rule 30 of the Rules was also not applicable to them and it was not permissible for the authorities concerned to determine their allotment and seniority under that rule. The view taken by the High Court is therefore quite justified and does not call for interference. The write petitioners had put in several years of service, and had received promotions from time to time. Their appointments were however temporary all through. It appears that the State Government thought of amelior ating their lot for that reason and attempted to do so by making the aforesaid rule 29 of the Rules. But, as has been shown, in doing so the State Government laboured under the impression that the initial appointments of the writ petitioners were irregular, and had to be regularised. As this was not a correct premise, and as rule 29 is not really applicable to the writ petitioners for the reasons mentioned above, it would perhaps be advisable for the SLate Government to re-examine the whole matter and to take appropriate action to give effect to their intention of ameliorating the lot of the writ petitioners. That is however not a matter for this Court to decide. The High Court was therefore not justified in directing that the seniority of the writ petitioners should be computed on the basis that "their services with effect from the respective dates of their joining service as Clerks in the Directorate of Civil Supplies (Accounts) were regular and in accordance with law." As it would have been enough for the High Court to say that the State Government, may reexamine the question of fixing the seniority of the writ petitioners and to take appropriate action to ameliorate their lot as temporary employees, the operative part of the impugned judgment of the High Court is modified to this extent.5. | 0[ds]Then follow the other sub-rules with which we are not concerned. The writ petitioners were initially recruited otherwise than through the Gujarat Public Service Commission and the Centralised Recruitment Scheme and they had rendered not less than two years continuous service as clerk, clerk-typists or typists by December 31, 1968, but, as would appear from the history of their service, it could not be said that they were continuing in Government service as clerks, clerk-typists or typists on April 17, 1970, which was the date of the notification of the Rules. The State Government therefore again erred in thinking that their service was governed by rule 29(1) (a). So when the appointments of the writ petitioners were not irregular, and they were not continuing in Government service as clerks, clerk-typists or typists on April 17. 1970, rule 30 of the Rules was also not applicable to them and it was not permissible for the authorities concerned to determine their allotment and seniority under that rule. The view taken by the High Court is therefore quite justified and does not call for interference. The write petitioners had put in several years of service, and had received promotions from time to time. Their appointments were however temporary all through. It appears that the State Government thought of amelior ating their lot for that reason and attempted to do so by making the aforesaid rule 29 of the Rules. But, as has been shown, in doing so the State Government laboured under the impression that the initial appointments of the writ petitioners were irregular, and had to be regularised. As this was not a correct premise, and as rule 29 is not really applicable to the writ petitioners for the reasons mentioned above, it would perhaps be advisable for the SLate Government to re-examine the whole matter and to take appropriate action to give effect to their intention of ameliorating the lot of the writ petitioners. That is however not a matter for this Court to decide. The High Court was therefore not justified in directing that the seniority of the writ petitioners should be computed on the basis that "their services with effect from the respective dates of their joining service as Clerks in the Directorate of Civil Supplies (Accounts) were regular and in accordance with law." As it would have been enough for the High Court to say that the State Government, may reexamine the question of fixing the seniority of the writ petitioners and to take appropriate action to ameliorate their lot as temporary employees, the operative part of the impugned judgment of the High Court is modified to this extent. | 0 | 2,099 | 487 | ### 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:
have been examined by the High Court and it has given satisfactory reasons for taking the view that this was not so. It will be enough to say that the Dircctorate of Civil Supplies (Accounts) was not included in appendix B to the Scheme which formed part of the resolution dated November 21, 1960 by which certain posts were brought within the purview of the Public Service Commission. It has in fact been admitted in the affidavit of K.K. Joshipura, Under Secretary to the State Government, dated September 4, 1974, that it was "true the office of the D.C.S.(A) was not under the purview of the Gujarat Public Service Commission at the time of the appointment of the petitioners." There is therefore nothing wrong with the view which has prevailed with the High Court that the Directorate did not come under the purview of the Public Service Commission until March 1, 1969.3. As regards the Centralised Recruitment Scheme and the resolution of January 21, 1963, the High Court has again rightly held that the resolution applied to recruitment of clerks in district and regional offices and as the Directorate of Civil Supplies (Accounts) was not such an office, the Scheme did not apply to it. We have gone through the other resolution dated July 9, 1964, which modified the Scheme, but here again the High Court has rightly taken the view that merely because of use of the expression "state cadre", it could not be said that the modified scheme was made applicable to the Directorate. We have gone through the whole of the Scheme and we have no doubt that it governed recruitment to district and regional offices, and there is no justification for the argument that it become applicable for recruitment of clerks in the Directorate of Civil Supplies (Accounts) as well. As it is, nothing has been shown to justify the view taken by the State Government that the initial appointments of the writ petitioners were irregular and had to be regularised in accordance with the provisions of rule 29 of the Rules. The rule provides as follows, --"29. Notwithstanding anything contained in these rules the following eases shall be regularised in the manner shown below in relaxation of their upper age, provisions of Recruitment Rules concerned and/or rules for pre-service training made by Government in this behalf to the extent indicated below:--(1) (a) Persons initially recruited otherwise than through the Gujarat Public Service Commission, or Centralized Recruitment Scheme, as clerks, clerk-typists or typists in the offices to which the Rules apply, and who have rendered not less than 2 years continuous service, as clerk or clerk-typist or typist, as the case may be, as on 31st December, 1968 in one or more offices and who are continuing in Government service as clerks, clerk-typists or typists, as the case may be, on the date of this notification or such persons whose names are kept on the Waiting List for provision al appointment for the reason that they had to be discharged for want of posts even though they had rendered 2 years continuous service as on 31st December, 1968 shall be required to appear at the special interview and/or the special typing test to be held for them for their selection for appointment to the post of clerk, clerk-typist or typist, as the case may be."4. Then follow the other sub-rules with which we are not concerned. The writ petitioners were initially recruited otherwise than through the Gujarat Public Service Commission and the Centralised Recruitment Scheme and they had rendered not less than two years continuous service as clerk, clerk-typists or typists by December 31, 1968, but, as would appear from the history of their service, it could not be said that they were continuing in Government service as clerks, clerk-typists or typists on April 17, 1970, which was the date of the notification of the Rules. The State Government therefore again erred in thinking that their service was governed by rule 29(1) (a). So when the appointments of the writ petitioners were not irregular, and they were not continuing in Government service as clerks, clerk-typists or typists on April 17. 1970, rule 30 of the Rules was also not applicable to them and it was not permissible for the authorities concerned to determine their allotment and seniority under that rule. The view taken by the High Court is therefore quite justified and does not call for interference. The write petitioners had put in several years of service, and had received promotions from time to time. Their appointments were however temporary all through. It appears that the State Government thought of amelior ating their lot for that reason and attempted to do so by making the aforesaid rule 29 of the Rules. But, as has been shown, in doing so the State Government laboured under the impression that the initial appointments of the writ petitioners were irregular, and had to be regularised. As this was not a correct premise, and as rule 29 is not really applicable to the writ petitioners for the reasons mentioned above, it would perhaps be advisable for the SLate Government to re-examine the whole matter and to take appropriate action to give effect to their intention of ameliorating the lot of the writ petitioners. That is however not a matter for this Court to decide. The High Court was therefore not justified in directing that the seniority of the writ petitioners should be computed on the basis that "their services with effect from the respective dates of their joining service as Clerks in the Directorate of Civil Supplies (Accounts) were regular and in accordance with law." As it would have been enough for the High Court to say that the State Government, may reexamine the question of fixing the seniority of the writ petitioners and to take appropriate action to ameliorate their lot as temporary employees, the operative part of the impugned judgment of the High Court is modified to this extent.5.
### Response:
0
### Explanation:
Then follow the other sub-rules with which we are not concerned. The writ petitioners were initially recruited otherwise than through the Gujarat Public Service Commission and the Centralised Recruitment Scheme and they had rendered not less than two years continuous service as clerk, clerk-typists or typists by December 31, 1968, but, as would appear from the history of their service, it could not be said that they were continuing in Government service as clerks, clerk-typists or typists on April 17, 1970, which was the date of the notification of the Rules. The State Government therefore again erred in thinking that their service was governed by rule 29(1) (a). So when the appointments of the writ petitioners were not irregular, and they were not continuing in Government service as clerks, clerk-typists or typists on April 17. 1970, rule 30 of the Rules was also not applicable to them and it was not permissible for the authorities concerned to determine their allotment and seniority under that rule. The view taken by the High Court is therefore quite justified and does not call for interference. The write petitioners had put in several years of service, and had received promotions from time to time. Their appointments were however temporary all through. It appears that the State Government thought of amelior ating their lot for that reason and attempted to do so by making the aforesaid rule 29 of the Rules. But, as has been shown, in doing so the State Government laboured under the impression that the initial appointments of the writ petitioners were irregular, and had to be regularised. As this was not a correct premise, and as rule 29 is not really applicable to the writ petitioners for the reasons mentioned above, it would perhaps be advisable for the SLate Government to re-examine the whole matter and to take appropriate action to give effect to their intention of ameliorating the lot of the writ petitioners. That is however not a matter for this Court to decide. The High Court was therefore not justified in directing that the seniority of the writ petitioners should be computed on the basis that "their services with effect from the respective dates of their joining service as Clerks in the Directorate of Civil Supplies (Accounts) were regular and in accordance with law." As it would have been enough for the High Court to say that the State Government, may reexamine the question of fixing the seniority of the writ petitioners and to take appropriate action to ameliorate their lot as temporary employees, the operative part of the impugned judgment of the High Court is modified to this extent.
|
Jabalpur Electric Supply Co Vs. Sambhu Prasad Srivastava & Others | writing of the misconduct alleged against him and that he shall be given an opportunity to produce evidence in his defence. Clause 20 does not deal with dismissal or suspension but provides that "the company has at all times a general right to discharge an employee from service not only for proved misconduct but also when the employer has lost confidence in the employee". Clause 21 provides for notice of censure to be given for certain acts or omissions.7. An examination of these provisions shows that for an order of dismissal under Cl. 19 to be made a special procedure is to be followed and when it is made the employee is not entitled to any compensation. Examining now the order made on January 16, 1958 we find that while Cl. 20 has not been mentioned it does not say that the employee has been found guilty of misconduct but merely states that "the Company does not find it possible to retain (this employees) services" and reference is made to the investigations in the case against him and to an interview he had with the Chief Engineer, Mr. J. W. Fawcett, on the morning of the 15th January, 1958.The only reasonable view to take of this order, in our opinion, is that this order was being made under Cl. 20 on the ground that the employer had lost confidence in the employee and was in fact and in law an order of discharge as distinct from an order of dismissal or suspension. It appears to us that while the Resident Engineer who held the enquiry may have been satisfied that an act of misconduct for which the employee was liable to dismissal had been proved he took a merciful view of his conduct in view of his previous clean record and proceeded accordingly to act under Cl. 20 of the Standing Orders instead of proceeding under Cl. 19. This is a case in which the employer has acted fairly and even generously in terminating the services of the employee under Cl. 20.8. The question remains whether the Resident Engineer could take action under Cl. 20. The employees argument, which found favour with the High Court was that it was the Company alone which could take action under Cl. 20 and the Resident Engineer in his capacity as the Resident Engineer apart from anything else, was not competent to take action under Cl. 20. For, Cl. 20 empowers the Company and not the Resident Engineer as such to discharge an employee on the ground that the employer had lost confidence in him. In the present case, however, it was not the Resident Engineer in his capacity as the Resident Engineer that made the order of discharge. Clearly, in making the order of discharge he was acting on the basis of the power of attorney executed in his favour on June 26, 1957. Under Cl. 10 of the power of attorney he had power "subject to the Standing Orders from time to time given by the Company to appoint, dismiss, suspend or terminate the services of any of the employees of the company at Jabalpur". The power of the Company under Cl. 19 of the Standing Orders to dismiss or suspend and its power under Cl. 20 to discharge an employee are both covered by Cl. 10 of the power of attorney. If there by nothing in law to prevent these powers being delegated to the Resident Engineer there could be no escape from the conclusion that the exercise of the power under Cl. 20 in the present case by the Resident Engineer amounted in law to an exercise of the power by the company itself. Is there anything in law which bars such delegation? We are unable to find any. It is obvious and admitted that when a company has to exercise its powers in connection with the management of its business it is not all the share-holders of the Company that have to meet to exercise the power. How the Company will regulate its business is prescribed in its Articles of Association. It is nobodys case that in the Articles of Association of the Jabalpur Electric Supply Co., there is anything barring the delegation of the disciplinary powers of the Company to any of its officers. In law therefore delegation of the functions of the Company may properly be made having regard to the exigencies of the business and the Articles of Association. It cannot be reasonably disputed that where the Head Office of the Company is at Calcutta and the main business is to be carried on at Jabalpur the exigencies of the business do require delegation of the Companys power to take disciplinary action against its employees to a responsible official like the Resident Engineer. But whether or not the Company might have done without such delegation is a matter which it is unnecessary for us to enquire into. The delegation was made and neither on principle nor on authority is it possible to say that the delegation was against the provisions of law.9. Nor can we see that the words "subject to the Standing Orders from time to time given by the Company" with which Cl. 10 of the power of attorney opens affects the delegation. On a proper interpretation of these words their only effect is that in exercising the power to appoint, dismiss, suspend or terminate the services of the employees at Jabalpur the delegate cannot do anything beyond what the Company itself can do under the Standing Orders. On no reasonable construction of the words can they mean that the delegate cannot exercise these powers at all, because under the Standing Orders the Company itself is given these powers. Whether it is the power to take action under Cl. 19 or under Cl. 20 of the Standing Orders the delegate can exercise these powers under Cl. 10 of the power of attorney in the same way as if the delegate was the Company itself. | 1[ds]7. An examination of these provisions shows that for an order of dismissal under Cl. 19 to be made a special procedure is to be followed and when it is made the employee is not entitled to any compensation. Examining now the order made on January 16, 1958 we find that while Cl. 20 has not been mentioned it does not say that the employee has been found guilty of misconduct but merely states that "the Company does not find it possible to retain (this employees) services" and reference is made to the investigations in the case against him and to an interview he had with the Chief Engineer, Mr. J. W. Fawcett, on the morning of the 15th January, 1958.The only reasonable view to take of this order, in our opinion, is that this order was being made under Cl. 20 on the ground that the employer had lost confidence in the employee and was in fact and in law an order of discharge as distinct from an order of dismissal or suspension. It appears to us that while the Resident Engineer who held the enquiry may have been satisfied that an act of misconduct for which the employee was liable to dismissal had been proved he took a merciful view of his conduct in view of his previous clean record and proceeded accordingly to act under Cl. 20 of the Standing Orders instead of proceeding under Cl. 19. This is a case in which the employer has acted fairly and even generously in terminating the services of the employee under Cl.employees argument, which found favour with the High Court was that it was the Company alone which could take action under Cl. 20 and the Resident Engineer in his capacity as the Resident Engineer apart from anything else, was not competent to take action under Cl. 20. For, Cl. 20 empowers the Company and not the Resident Engineer as such to discharge an employee on the ground that the employer had lost confidence in him. In the present case, however, it was not the Resident Engineer in his capacity as the Resident Engineer that made the order of discharge. Clearly, in making the order of discharge he was acting on the basis of the power of attorney executed in his favour on June 26, 1957. Under Cl. 10 of the power of attorney he had power "subject to the Standing Orders from time to time given by the Company to appoint, dismiss, suspend or terminate the services of any of the employees of the company at Jabalpur". The power of the Company under Cl. 19 of the Standing Orders to dismiss or suspend and its power under Cl. 20 to discharge an employee are both covered by Cl. 10 of the power of attorney. If there by nothing in law to prevent these powers being delegated to the Resident Engineer there could be no escape from the conclusion that the exercise of the power under Cl. 20 in the present case by the Resident Engineer amounted in law to an exercise of the power by the company itself. Is there anything in law which bars such delegation? We are unable to find any. It is obvious and admitted that when a company has to exercise its powers in connection with the management of its business it is not all the share-holders of the Company that have to meet to exercise the power. How the Company will regulate its business is prescribed in its Articles of Association. It is nobodys case that in the Articles of Association of the Jabalpur Electric Supply Co., there is anything barring the delegation of the disciplinary powers of the Company to any of its officers. In law therefore delegation of the functions of the Company may properly be made having regard to the exigencies of the business and the Articles of Association. It cannot be reasonably disputed that where the Head Office of the Company is at Calcutta and the main business is to be carried on at Jabalpur the exigencies of the business do require delegation of the Companys power to take disciplinary action against its employees to a responsible official like the Resident Engineer. But whether or not the Company might have done without such delegation is a matter which it is unnecessary for us to enquire into. The delegation was made and neither on principle nor on authority is it possible to say that the delegation was against the provisions of law.9. Nor can we see that the words "subject to the Standing Orders from time to time given by the Company" with which Cl. 10 of the power of attorney opens affects the delegation. On a proper interpretation of these words their only effect is that in exercising the power to appoint, dismiss, suspend or terminate the services of the employees at Jabalpur the delegate cannot do anything beyond what the Company itself can do under the Standing Orders. On no reasonable construction of the words can they mean that the delegate cannot exercise these powers at all, because under the Standing Orders the Company itself is given these powers. Whether it is the power to take action under Cl. 19 or under Cl. 20 of the Standing Orders the delegate can exercise these powers under Cl. 10 of the power of attorney in the same way as if the delegate was the Company itself. | 1 | 2,204 | 981 | ### 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:
writing of the misconduct alleged against him and that he shall be given an opportunity to produce evidence in his defence. Clause 20 does not deal with dismissal or suspension but provides that "the company has at all times a general right to discharge an employee from service not only for proved misconduct but also when the employer has lost confidence in the employee". Clause 21 provides for notice of censure to be given for certain acts or omissions.7. An examination of these provisions shows that for an order of dismissal under Cl. 19 to be made a special procedure is to be followed and when it is made the employee is not entitled to any compensation. Examining now the order made on January 16, 1958 we find that while Cl. 20 has not been mentioned it does not say that the employee has been found guilty of misconduct but merely states that "the Company does not find it possible to retain (this employees) services" and reference is made to the investigations in the case against him and to an interview he had with the Chief Engineer, Mr. J. W. Fawcett, on the morning of the 15th January, 1958.The only reasonable view to take of this order, in our opinion, is that this order was being made under Cl. 20 on the ground that the employer had lost confidence in the employee and was in fact and in law an order of discharge as distinct from an order of dismissal or suspension. It appears to us that while the Resident Engineer who held the enquiry may have been satisfied that an act of misconduct for which the employee was liable to dismissal had been proved he took a merciful view of his conduct in view of his previous clean record and proceeded accordingly to act under Cl. 20 of the Standing Orders instead of proceeding under Cl. 19. This is a case in which the employer has acted fairly and even generously in terminating the services of the employee under Cl. 20.8. The question remains whether the Resident Engineer could take action under Cl. 20. The employees argument, which found favour with the High Court was that it was the Company alone which could take action under Cl. 20 and the Resident Engineer in his capacity as the Resident Engineer apart from anything else, was not competent to take action under Cl. 20. For, Cl. 20 empowers the Company and not the Resident Engineer as such to discharge an employee on the ground that the employer had lost confidence in him. In the present case, however, it was not the Resident Engineer in his capacity as the Resident Engineer that made the order of discharge. Clearly, in making the order of discharge he was acting on the basis of the power of attorney executed in his favour on June 26, 1957. Under Cl. 10 of the power of attorney he had power "subject to the Standing Orders from time to time given by the Company to appoint, dismiss, suspend or terminate the services of any of the employees of the company at Jabalpur". The power of the Company under Cl. 19 of the Standing Orders to dismiss or suspend and its power under Cl. 20 to discharge an employee are both covered by Cl. 10 of the power of attorney. If there by nothing in law to prevent these powers being delegated to the Resident Engineer there could be no escape from the conclusion that the exercise of the power under Cl. 20 in the present case by the Resident Engineer amounted in law to an exercise of the power by the company itself. Is there anything in law which bars such delegation? We are unable to find any. It is obvious and admitted that when a company has to exercise its powers in connection with the management of its business it is not all the share-holders of the Company that have to meet to exercise the power. How the Company will regulate its business is prescribed in its Articles of Association. It is nobodys case that in the Articles of Association of the Jabalpur Electric Supply Co., there is anything barring the delegation of the disciplinary powers of the Company to any of its officers. In law therefore delegation of the functions of the Company may properly be made having regard to the exigencies of the business and the Articles of Association. It cannot be reasonably disputed that where the Head Office of the Company is at Calcutta and the main business is to be carried on at Jabalpur the exigencies of the business do require delegation of the Companys power to take disciplinary action against its employees to a responsible official like the Resident Engineer. But whether or not the Company might have done without such delegation is a matter which it is unnecessary for us to enquire into. The delegation was made and neither on principle nor on authority is it possible to say that the delegation was against the provisions of law.9. Nor can we see that the words "subject to the Standing Orders from time to time given by the Company" with which Cl. 10 of the power of attorney opens affects the delegation. On a proper interpretation of these words their only effect is that in exercising the power to appoint, dismiss, suspend or terminate the services of the employees at Jabalpur the delegate cannot do anything beyond what the Company itself can do under the Standing Orders. On no reasonable construction of the words can they mean that the delegate cannot exercise these powers at all, because under the Standing Orders the Company itself is given these powers. Whether it is the power to take action under Cl. 19 or under Cl. 20 of the Standing Orders the delegate can exercise these powers under Cl. 10 of the power of attorney in the same way as if the delegate was the Company itself.
### Response:
1
### Explanation:
7. An examination of these provisions shows that for an order of dismissal under Cl. 19 to be made a special procedure is to be followed and when it is made the employee is not entitled to any compensation. Examining now the order made on January 16, 1958 we find that while Cl. 20 has not been mentioned it does not say that the employee has been found guilty of misconduct but merely states that "the Company does not find it possible to retain (this employees) services" and reference is made to the investigations in the case against him and to an interview he had with the Chief Engineer, Mr. J. W. Fawcett, on the morning of the 15th January, 1958.The only reasonable view to take of this order, in our opinion, is that this order was being made under Cl. 20 on the ground that the employer had lost confidence in the employee and was in fact and in law an order of discharge as distinct from an order of dismissal or suspension. It appears to us that while the Resident Engineer who held the enquiry may have been satisfied that an act of misconduct for which the employee was liable to dismissal had been proved he took a merciful view of his conduct in view of his previous clean record and proceeded accordingly to act under Cl. 20 of the Standing Orders instead of proceeding under Cl. 19. This is a case in which the employer has acted fairly and even generously in terminating the services of the employee under Cl.employees argument, which found favour with the High Court was that it was the Company alone which could take action under Cl. 20 and the Resident Engineer in his capacity as the Resident Engineer apart from anything else, was not competent to take action under Cl. 20. For, Cl. 20 empowers the Company and not the Resident Engineer as such to discharge an employee on the ground that the employer had lost confidence in him. In the present case, however, it was not the Resident Engineer in his capacity as the Resident Engineer that made the order of discharge. Clearly, in making the order of discharge he was acting on the basis of the power of attorney executed in his favour on June 26, 1957. Under Cl. 10 of the power of attorney he had power "subject to the Standing Orders from time to time given by the Company to appoint, dismiss, suspend or terminate the services of any of the employees of the company at Jabalpur". The power of the Company under Cl. 19 of the Standing Orders to dismiss or suspend and its power under Cl. 20 to discharge an employee are both covered by Cl. 10 of the power of attorney. If there by nothing in law to prevent these powers being delegated to the Resident Engineer there could be no escape from the conclusion that the exercise of the power under Cl. 20 in the present case by the Resident Engineer amounted in law to an exercise of the power by the company itself. Is there anything in law which bars such delegation? We are unable to find any. It is obvious and admitted that when a company has to exercise its powers in connection with the management of its business it is not all the share-holders of the Company that have to meet to exercise the power. How the Company will regulate its business is prescribed in its Articles of Association. It is nobodys case that in the Articles of Association of the Jabalpur Electric Supply Co., there is anything barring the delegation of the disciplinary powers of the Company to any of its officers. In law therefore delegation of the functions of the Company may properly be made having regard to the exigencies of the business and the Articles of Association. It cannot be reasonably disputed that where the Head Office of the Company is at Calcutta and the main business is to be carried on at Jabalpur the exigencies of the business do require delegation of the Companys power to take disciplinary action against its employees to a responsible official like the Resident Engineer. But whether or not the Company might have done without such delegation is a matter which it is unnecessary for us to enquire into. The delegation was made and neither on principle nor on authority is it possible to say that the delegation was against the provisions of law.9. Nor can we see that the words "subject to the Standing Orders from time to time given by the Company" with which Cl. 10 of the power of attorney opens affects the delegation. On a proper interpretation of these words their only effect is that in exercising the power to appoint, dismiss, suspend or terminate the services of the employees at Jabalpur the delegate cannot do anything beyond what the Company itself can do under the Standing Orders. On no reasonable construction of the words can they mean that the delegate cannot exercise these powers at all, because under the Standing Orders the Company itself is given these powers. Whether it is the power to take action under Cl. 19 or under Cl. 20 of the Standing Orders the delegate can exercise these powers under Cl. 10 of the power of attorney in the same way as if the delegate was the Company itself.
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SHRI REVANSIDDESHWAR PATTAN SAHAKARI BANK NIYAMIT Vs. TALUKA TOKREKOLI (AMBIGA SAMAJI C VIKAS SANGH INDI) | Abhay Manohar Sapre, J. 1. Leave granted. 2. This appeal is filed against the final judgment and order dated 28.06.2018 passed by the High Court of Karnataka at Kalaburagi in Writ Petition No.203932 of 2015 whereby the High Court partly allowed the writ petition filed by respondent No.1 herein. 3. A few facts need mention infra for the disposal of this appeal, which involves a short question. 4. The appellant is defendant No. 2, respondent No. 1 is the plaintiff and respondent No. 2 is defendant No. 1 in O.S. No.445/2013 before the Court of Civil Judge, Indi at Indi. 5. Respondent No. 1 has filed a civil suit against respondent No. 2¬Deputy Commissioner, Bijapur (defendant No. 1) and the appellant (defendant No. 2). The suit is for a declaration and injunction in relation to the suit land as detailed in the plaint. 6. In this suit, the plaintiff (respondent No. 1 herein) as well as defendant No. 2 (appellant herein) both filed an application for grant of injunction against each other under Order 39 Rules 1 and 2 read with Section 151 of the Code of Civil Procedure, 1908 being IA No.1 and IA No.2 respectively. 7. The Trial Court by order 10.03.2014 dismissed both the applications. Defendant No. 2 (appellant herein) felt aggrieved by the dismissal of his application (IA No.2) filed Misc. Appeal No. 7/2014 in the Court of Senior Civil Judge & JMFC, Indi. By order dated 16.07.2015 (Annexure P-9), the appellate Court allowed the appeal and granted injunction which reads as under: The appeal filed by the defendant No.2/appellant is allowed. The orders passed by the Trial Court, Civil Judge & JMFC, Indi on I.A.No.2 filed by defendant No.2/appellant under Order 39 Rules 1 and 2 of CPC in O.S. No.445/2013 dated 10.3.2014 is hereby set aside. The plaintiff/respondent No.1 is hereby restrained from causing obstruction to the defendant No.2/appellant in making constructing over the property as prayed in the application I.A.No.2 till the disposal of suit. No order as to costs. 8. The plaintiff (respondent No. 1) felt aggrieved and filed W.P. No.203932/2015 in the High Court of Karnataka, Kalaburagi and questioned its legality and correctness. By impugned order, the Single Judge of the High Court partly allowed the writ petition filed by the plaintiff (respondent No. 1). The High Court confirmed the injunction granted to defendant No. 2 by the Appellate Court and at the same time also granted injunction in favour of the plaintiff and restrained defendant No. 2 from interfering in plaintiffs possession. The order reads as under: Therefore, the petition is partly allowed. The order dated 16.7.2015 passed by the appellate Court, i.e., the Senior Civil Judge and JMFC, Indi, in Miscellaneous Appeal No.07 of 2014 granting injunction to the defendants with respect to property bearing CTS No.1336A/1B1B/1A1A/1A1A/29 measuring 30x55=1650 sq. ft. situated at Indi is confirmed. At the same time, the application filed by the plaintiff for injunction against the defendants with respect to property bearing CTS No.1336A/1B/1A/1/1A/1A measuring 30x40 and further 15x30 situated at Indi is allowed. The defendants are restrained from interfering in the peaceful possession of the plaintiffs property bearing CTS No.1336A/1B/1A/1/1A/1A measuring 30x40 and further 15x30 situated at Indi. The plaintiff is restrained from interfering in the defendants possession of property bearing CTS No.1336A/1B1B/1A1A/1A1A/29 measuring 30x55=1650 sq.ft. situated at Indi. 9. It is against this order of the High Court, defendant No. 2 has felt aggrieved and filed this appeal by way of special leave in this Court. 10. So, the short question, which arises for consideration in this appeal, is whether the High Court was justified in allowing the plaintiffs writ petition in part. 11. Having heard the learned counsel for the parties and on perusal of the record of the case, we are inclined to allow the appeal and while setting aside the impugned order remand the case to the High Court for hearing the writ petition afresh in accordance with law. 12. The need to remand the case to the High Court has occasioned for the reason that firstly, the High Court did not assign any reasons for allowing the writ petition and secondly, the High Court seemed to have passed somewhat inconsistent order. 13. It is clear from the fact that the High Court allowed the injunction application made by both the parties against each other though the writ petition was filed by the plaintiff against the appellate order, which was passed only on the injunction application filed by defendant No. 2 ( IA No.2) in their favour. 14. In other words, the only question before the High Court was whether the Appellate Court was justified in allowing the defendant No.2s appeal and in consequence was justified in allowing his (defendants) injunction application (I.A.No.2) made against the plaintiff seeking injunction in relation to the suit property. 15. The reason was that it was not in dispute that the plaintiff did not challenge before the Appellate Court that part of the order of the Trial Court by which his injunction application was dismissed. 16. In this view of the matter when the plaintiffs injunction application stood dismissed by the Trial Court and the same was not carried in appeal at his instance, the same could not have been revived by the High Court in a writ petition filed by the plaintiff. 17. We are, therefore, unable to agree with the view taken by the High Court as the High Court neither examined the facts of the case properly nor the legal questions arising in the case, therefore such order is legally unsustainable. | 1[ds]11. Having heard the learned counsel for the parties and on perusal of the record of the case, we are inclined to allow the appeal and while setting aside the impugned order remand the case to the High Court for hearing the writ petition afresh in accordance with law12. The need to remand the case to the High Court has occasioned for the reason that firstly, the High Court did not assign any reasons for allowing the writpetition and secondly, the High Court seemed to have passed somewhat inconsistent order13. It is clear from the fact that the High Court allowed the injunction application made by both the parties against each other though the writ petition was filed by the plaintiff against the appellate order, which was passed only on the injunction application filed by defendant No. 2 ( IA No.2) in their favour14. In other words, the only question before the High Court was whether the Appellate Court was justified in allowing the defendant No.2s appeal and in consequence was justified in allowing his (defendants) injunction application (I.A.No.2) made against the plaintiff seeking injunction in relation to the suit property15. The reason was that it was not in dispute that the plaintiff did not challenge before the Appellate Court that part of the order of the Trial Court by which his injunction application was dismissed16. In this view of the matter when the plaintiffs injunction application stood dismissed by the Trial Court and the same was not carried in appeal at his instance, the same could not have been revived by the High Court in a writ petition filed by the plaintiff17. We are, therefore, unable to agree with the view taken by the High Court as the High Court neither examined the facts of the case properly nor the legal questions arising in the case, therefore such order is legally unsustainable. | 1 | 1,059 | 340 | ### Instruction:
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Abhay Manohar Sapre, J. 1. Leave granted. 2. This appeal is filed against the final judgment and order dated 28.06.2018 passed by the High Court of Karnataka at Kalaburagi in Writ Petition No.203932 of 2015 whereby the High Court partly allowed the writ petition filed by respondent No.1 herein. 3. A few facts need mention infra for the disposal of this appeal, which involves a short question. 4. The appellant is defendant No. 2, respondent No. 1 is the plaintiff and respondent No. 2 is defendant No. 1 in O.S. No.445/2013 before the Court of Civil Judge, Indi at Indi. 5. Respondent No. 1 has filed a civil suit against respondent No. 2¬Deputy Commissioner, Bijapur (defendant No. 1) and the appellant (defendant No. 2). The suit is for a declaration and injunction in relation to the suit land as detailed in the plaint. 6. In this suit, the plaintiff (respondent No. 1 herein) as well as defendant No. 2 (appellant herein) both filed an application for grant of injunction against each other under Order 39 Rules 1 and 2 read with Section 151 of the Code of Civil Procedure, 1908 being IA No.1 and IA No.2 respectively. 7. The Trial Court by order 10.03.2014 dismissed both the applications. Defendant No. 2 (appellant herein) felt aggrieved by the dismissal of his application (IA No.2) filed Misc. Appeal No. 7/2014 in the Court of Senior Civil Judge & JMFC, Indi. By order dated 16.07.2015 (Annexure P-9), the appellate Court allowed the appeal and granted injunction which reads as under: The appeal filed by the defendant No.2/appellant is allowed. The orders passed by the Trial Court, Civil Judge & JMFC, Indi on I.A.No.2 filed by defendant No.2/appellant under Order 39 Rules 1 and 2 of CPC in O.S. No.445/2013 dated 10.3.2014 is hereby set aside. The plaintiff/respondent No.1 is hereby restrained from causing obstruction to the defendant No.2/appellant in making constructing over the property as prayed in the application I.A.No.2 till the disposal of suit. No order as to costs. 8. The plaintiff (respondent No. 1) felt aggrieved and filed W.P. No.203932/2015 in the High Court of Karnataka, Kalaburagi and questioned its legality and correctness. By impugned order, the Single Judge of the High Court partly allowed the writ petition filed by the plaintiff (respondent No. 1). The High Court confirmed the injunction granted to defendant No. 2 by the Appellate Court and at the same time also granted injunction in favour of the plaintiff and restrained defendant No. 2 from interfering in plaintiffs possession. The order reads as under: Therefore, the petition is partly allowed. The order dated 16.7.2015 passed by the appellate Court, i.e., the Senior Civil Judge and JMFC, Indi, in Miscellaneous Appeal No.07 of 2014 granting injunction to the defendants with respect to property bearing CTS No.1336A/1B1B/1A1A/1A1A/29 measuring 30x55=1650 sq. ft. situated at Indi is confirmed. At the same time, the application filed by the plaintiff for injunction against the defendants with respect to property bearing CTS No.1336A/1B/1A/1/1A/1A measuring 30x40 and further 15x30 situated at Indi is allowed. The defendants are restrained from interfering in the peaceful possession of the plaintiffs property bearing CTS No.1336A/1B/1A/1/1A/1A measuring 30x40 and further 15x30 situated at Indi. The plaintiff is restrained from interfering in the defendants possession of property bearing CTS No.1336A/1B1B/1A1A/1A1A/29 measuring 30x55=1650 sq.ft. situated at Indi. 9. It is against this order of the High Court, defendant No. 2 has felt aggrieved and filed this appeal by way of special leave in this Court. 10. So, the short question, which arises for consideration in this appeal, is whether the High Court was justified in allowing the plaintiffs writ petition in part. 11. Having heard the learned counsel for the parties and on perusal of the record of the case, we are inclined to allow the appeal and while setting aside the impugned order remand the case to the High Court for hearing the writ petition afresh in accordance with law. 12. The need to remand the case to the High Court has occasioned for the reason that firstly, the High Court did not assign any reasons for allowing the writ petition and secondly, the High Court seemed to have passed somewhat inconsistent order. 13. It is clear from the fact that the High Court allowed the injunction application made by both the parties against each other though the writ petition was filed by the plaintiff against the appellate order, which was passed only on the injunction application filed by defendant No. 2 ( IA No.2) in their favour. 14. In other words, the only question before the High Court was whether the Appellate Court was justified in allowing the defendant No.2s appeal and in consequence was justified in allowing his (defendants) injunction application (I.A.No.2) made against the plaintiff seeking injunction in relation to the suit property. 15. The reason was that it was not in dispute that the plaintiff did not challenge before the Appellate Court that part of the order of the Trial Court by which his injunction application was dismissed. 16. In this view of the matter when the plaintiffs injunction application stood dismissed by the Trial Court and the same was not carried in appeal at his instance, the same could not have been revived by the High Court in a writ petition filed by the plaintiff. 17. We are, therefore, unable to agree with the view taken by the High Court as the High Court neither examined the facts of the case properly nor the legal questions arising in the case, therefore such order is legally unsustainable.
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11. Having heard the learned counsel for the parties and on perusal of the record of the case, we are inclined to allow the appeal and while setting aside the impugned order remand the case to the High Court for hearing the writ petition afresh in accordance with law12. The need to remand the case to the High Court has occasioned for the reason that firstly, the High Court did not assign any reasons for allowing the writpetition and secondly, the High Court seemed to have passed somewhat inconsistent order13. It is clear from the fact that the High Court allowed the injunction application made by both the parties against each other though the writ petition was filed by the plaintiff against the appellate order, which was passed only on the injunction application filed by defendant No. 2 ( IA No.2) in their favour14. In other words, the only question before the High Court was whether the Appellate Court was justified in allowing the defendant No.2s appeal and in consequence was justified in allowing his (defendants) injunction application (I.A.No.2) made against the plaintiff seeking injunction in relation to the suit property15. The reason was that it was not in dispute that the plaintiff did not challenge before the Appellate Court that part of the order of the Trial Court by which his injunction application was dismissed16. In this view of the matter when the plaintiffs injunction application stood dismissed by the Trial Court and the same was not carried in appeal at his instance, the same could not have been revived by the High Court in a writ petition filed by the plaintiff17. We are, therefore, unable to agree with the view taken by the High Court as the High Court neither examined the facts of the case properly nor the legal questions arising in the case, therefore such order is legally unsustainable.
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T. V. R. Subbu Chetty'S Family Charities Vs. M. Raghava Mudaliar And Others | the respondent had supported the plaintiff in the said suit it was necessary that he should have got himself transposed as a plaintiff, when he found that the original plaintiff was allowing the suit to be dismissed for non-prosecution. In our opinion, this argument is far-fetched and cannot possibly sustain the plea of ratification against the respondent. If the respondent took possession of the property under the arrangement with the distinct understanding that the arrangement was to last only during the lifetime of the widow, we see no justification for the assumption that he should have carried on Civil Suit No. 1117 of 1921 or should in fact have challenged the said arrangement at all. 18. The last argument urged in support of the plea of ratification is based on the oral evidence given by the respondent in the present case. The respondent was asked about the quarrels between the mother and the widow of the deceased Mudaliar, and he said that they were living together and that there were quarrels between them. Then he was asked as to whether he got the property under the impugned arrangement, and he said that his grandmother gave him the house with the Collectors certificate and told him that she was going to die soon and so he may take the house. The respondent also admitted that since the house was thus delivered to him and to his sister they were in possession of it and in enjoyment of its income. The respondent then stated that he was not aware of the document of 1895 until 1916, and that he came to know about the division between the two widows only in 1910. It is urged that this statement should not be believed, and that the reluctance of the respondent to disclose the truth should lead to the inference that he knew all about the impugned transaction and its effect, and that when he took possession of the property allotted to him under the said transaction he knew fully well about his rights and he accepted the benefits with the object of ratifying the whole transaction. In our opinion there is no substance in this argument. 19. In this connection it is relevant to remember that until Act II of 1929 was passed a sister son, like the respondent, would have had very few chances of becoming an actual reversioner; he would have come in the list of bandhus; and so it would be difficult to assume that at the time when the respondent accepted the gift of the house he knew about his rights as a possible reversioner. Besides, the benefit which he obtained under the impugned transaction could also in substance have been claimed by him under an earlier arrangement entered into between Govinda, Mudaliar and Madhva Ramanuja Mudaliar on February 7, 1887, (Ex. D-1). Having regard to the arrangement disclosed by the said document the benefit given to the respondent and the other children of the sisters of the deceased Mudaliar may as well have been based on the said arrangement, and all that the transactions of 1893 and 1895 did was to give effect to it (Exs. D-2 and D-5). Besides, as we have already pointed out, in 1893 the respondent was a minor, and when subsequent to 1895 he took possession of the property it does not appear on evidence that he knew that the intention of the widows was to treat the property as absolute owners and to convey absolute titles to the respective donees and transferees under the said transaction. He also could not have known about his rights as a possible reversioner. Therefore, in our opinion, the High Court was right in holding that the appellant had failed to establish his plea of ratification against the respondent. Indeed, to hold otherwise would be in the words of the Privy Council a quite unwarrantable proposition: 46 Ind App 72 at p. 87: (AIR 1918 PC 196 at p. 202). 20. That leaves the question of legal necessity to be considered. The High Court has held that the impugned transfer cannot be said to have been justified by legal necessity; and, in our opinion, the finding of the High Court on this point is obviously right. In dealing with this question it may be relevant to recall that the widow of the deceased Mudaliar had obtained letters of administration to the estate of the deceased on April 26, 1893, and, as usual, in issuing the letters limitation had been imposed upon the widow that she could not deal with or transfer the property in question without the requisite sanction. There is some force in the argument urged before us by Mr. Sastri on behalf of the respondent that it was with a view to avoid the necessity to obtain the requisite sanction that the widow of the deceased Mudaliar was persuaded by her mother-in-law to enter into the impugned transaction under the guise of a family arrangement. The document itself (Ex. D-5) does not purport to be justified by legal necessity. In terms it purports to give effect to the original arrangement of 1893 (Ex. D-2); and if the said arrangement is not valid as a family arrangement the subsequent transfer would also be invalid. Besides, out of a total consideration of about Rs. 10,000 the amount of Rs. 776 can be taken to represent the debts due by the deceased Mudaliar; the rest of the items of consideration cannot be treated as constituting a legal necessity at all. The amount of Rs. 558 was the expense incurred for executing the document; similarly the amount of Rs. 409 representing the funeral expense of the deceased Mudaliar, had apparently been spent by the widow who wanted to reimburse herself and that cannot be a legal necessity. The other items of consideration do not even purport to be for legal necessity. Therefore, in our opinion, the conclusion is inescapable that the impugned transfer is not justified by legal necessity. | 0[ds]There is of course no doubt about the correctness of the principle thus enunciated, but the difficulty in the way of the appellant arises when the applicability of the said principle is tested in the light of the relevant material findings in that caseThese two decisions also emphasies the fact that if a person having full knowledge of his rights as a possible reversioner enters into a transaction which settles his claim as well as the claim of his opponents at the relevant time, he cannot be permitted to go back on that arrangement when reversion actually falls open14. There can be no doubt that the transaction which took place on May 27, 1893, as a result of the dispute between the two widows and with the intervention of the well-wishers of the family is not a family arrangement as understood under Hindu Law. This position was conceded before the High Court and is not disputed before usThus in dealing with the question as to whetherthe respondent is precluded from challenging the validity of the impugned transactionit is necessary to bear in mind that the original transaction is not a transaction in the nature of a family arrangement. Besides, he was then a minor and admittedly he was not a party to any of the said transactionsThe explanation given by the respondent for not producing the patta is attacked as unsatisfactory, and it is urged that the said explanation cannot possibly conceal his intention to keep back the document from the Court. In his cross-examination the respondent stated that the Collectors certificate which had been given to him by his grand-mother had been filed by him in Suit No. 495 of 1916 in the City Civil Court, and he added that his advocate in the said suit had not returned the document to him. We may assume that the respondent has not produced the document though it was in his possession; but we have on the record two documents which were issued to the other donees, and all that the appellant is entitled to assume is that a similar document had been issued in favour of the respondent. In our opinion, the two documents on the record do not assist the appellants argument that any representation had been made by the respondent to the Collector before he obtained a patta in his favour. In fact the issue of the patta is a routine matter which would necessarily follow on the execution of the registered sale deed (Ex. D-5). On the registration of the said document persons who got certain immovable properties under it were given the certificates by the Collector in ordinary course, and so no argument can be built up against the respondent that the acceptance of the patta amounts to the ratification of the original transaction of saleIt appears that the plaintiff in that suit had based her claim on the said impugned transaction, and in respect of the said claim the respondent had alleged in paragraph 2 of his written statement that he admitted that in consequence of certain disputes which arose between the mother and the widow of the deceased Govinda Mudaliar a compromise settlement was arrived at in pursuance of which some transfers were effected. This, it is said, amounts to an admission of the validity of the said transaction (Ex. D-15). This argument, however, fails to take notice of the fact that while referring to the said compromise settlement the respondent had expressly added that the said compromise settlement was obviously to take effect only during the life tenancy of the widow of the deceased Govinda Mudaliar (Ex. P-3). In other words, taking the statement as a whole, as we must, the respondent looked upon the said compromise settlement as an alienation made by the widow and as intended to take effect during her lifetime and no more. In other words, far from supporting a plea of ratification against the respondent this statement strengthens his case that he took the benefit with the knowledge and under the belief that the arrangement under which the said benefit flowed was intended to be operative during the lifetime of the widow, and as such he had no occasion to challenge its validity whilst the widow was aliveIt is unnecessary to refer to the pleadings in the said suit or to specify in detail the reliefs claimed. The only point which is relevant to consider is that the reversioner had challenged the arrangement in question. The respondent by his written statement had purported to support the plea made by the plaintiff, and had added that he was no personally aware of any attempt on the part of defendants 2 to 4 to alienate the properties in respect of their possession and enjoyment. This suit, however, did not proceed to a trial as it was dismissed for want of prosecution, and the argument is that since the respondent had supported the plaintiff in the said suit it was necessary that he should have got himself transposed as a plaintiff, when he found that the original plaintiff was allowing the suit to be dismissed for non-prosecution. In our opinion, this argument is far-fetched and cannot possibly sustain the plea of ratification against the respondent. If the respondent took possession of the property under the arrangement with the distinct understanding that the arrangement was to last only during the lifetime of the widow, we see no justification for the assumption that he should have carried on Civil Suit No. 1117 of 1921 or should in fact have challenged the said arrangement at allIn our opinion there is no substance in this argumentHaving regard to the arrangement disclosed by the said document the benefit given to the respondent and the other children of the sisters of the deceased Mudaliar may as well have been based on the said arrangement, and all that the transactions of 1893 and 1895 did was to give effect to it (Exs. D-2 and D-5). Besides, as we have already pointed out, in 1893 the respondent was a minor, and when subsequent to 1895 he took possession of the property it does not appear on evidence that he knew that the intention of the widows was to treat the property as absolute owners and to convey absolute titles to the respective donees and transferees under the said transaction. He also could not have known about his rights as a possible reversioner. Therefore, in our opinion, the High Court was right in holding that the appellant had failed to establish his plea of ratification against the respondentIn dealing with this question it may be relevant to recall that the widow of the deceased Mudaliar had obtained letters of administration to the estate of the deceased on April 26, 1893, and, as usual, in issuing the letters limitation had been imposed upon the widow that she could not deal with or transfer the property in question without the requisite sanction. There is some force in the argument urged before us by Mr. Sastri on behalf of the respondent that it was with a view to avoid the necessity to obtain the requisite sanction that the widow of the deceased Mudaliar was persuaded by her mother-in-law to enter into the impugned transaction under the guise of a family arrangement. The document itself (Ex. D-5) does not purport to be justified by legal necessity. In terms it purports to give effect to the original arrangement of 1893 (Ex. D-2); and if the said arrangement is not valid as a family arrangement the subsequent transfer would also be invalid. Besides, out of a total consideration of about Rs. 10,000 the amount of Rs. 776 can be taken to represent the debts due by the deceased Mudaliar; the rest of the items of consideration cannot be treated as constituting a legal necessity at all. The amount of Rs. 558 was the expense incurred for executing the document; similarly the amount of Rs. 409 representing the funeral expense of the deceased Mudaliar, had apparently been spent by the widow who wanted to reimburse herself and that cannot be a legal necessity. The other items of consideration do not even purport to be for legal necessity. Therefore, in our opinion, the conclusion is inescapable that the impugned transfer is not justified by legal necessity. | 0 | 5,589 | 1,494 | ### Instruction:
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the respondent had supported the plaintiff in the said suit it was necessary that he should have got himself transposed as a plaintiff, when he found that the original plaintiff was allowing the suit to be dismissed for non-prosecution. In our opinion, this argument is far-fetched and cannot possibly sustain the plea of ratification against the respondent. If the respondent took possession of the property under the arrangement with the distinct understanding that the arrangement was to last only during the lifetime of the widow, we see no justification for the assumption that he should have carried on Civil Suit No. 1117 of 1921 or should in fact have challenged the said arrangement at all. 18. The last argument urged in support of the plea of ratification is based on the oral evidence given by the respondent in the present case. The respondent was asked about the quarrels between the mother and the widow of the deceased Mudaliar, and he said that they were living together and that there were quarrels between them. Then he was asked as to whether he got the property under the impugned arrangement, and he said that his grandmother gave him the house with the Collectors certificate and told him that she was going to die soon and so he may take the house. The respondent also admitted that since the house was thus delivered to him and to his sister they were in possession of it and in enjoyment of its income. The respondent then stated that he was not aware of the document of 1895 until 1916, and that he came to know about the division between the two widows only in 1910. It is urged that this statement should not be believed, and that the reluctance of the respondent to disclose the truth should lead to the inference that he knew all about the impugned transaction and its effect, and that when he took possession of the property allotted to him under the said transaction he knew fully well about his rights and he accepted the benefits with the object of ratifying the whole transaction. In our opinion there is no substance in this argument. 19. In this connection it is relevant to remember that until Act II of 1929 was passed a sister son, like the respondent, would have had very few chances of becoming an actual reversioner; he would have come in the list of bandhus; and so it would be difficult to assume that at the time when the respondent accepted the gift of the house he knew about his rights as a possible reversioner. Besides, the benefit which he obtained under the impugned transaction could also in substance have been claimed by him under an earlier arrangement entered into between Govinda, Mudaliar and Madhva Ramanuja Mudaliar on February 7, 1887, (Ex. D-1). Having regard to the arrangement disclosed by the said document the benefit given to the respondent and the other children of the sisters of the deceased Mudaliar may as well have been based on the said arrangement, and all that the transactions of 1893 and 1895 did was to give effect to it (Exs. D-2 and D-5). Besides, as we have already pointed out, in 1893 the respondent was a minor, and when subsequent to 1895 he took possession of the property it does not appear on evidence that he knew that the intention of the widows was to treat the property as absolute owners and to convey absolute titles to the respective donees and transferees under the said transaction. He also could not have known about his rights as a possible reversioner. Therefore, in our opinion, the High Court was right in holding that the appellant had failed to establish his plea of ratification against the respondent. Indeed, to hold otherwise would be in the words of the Privy Council a quite unwarrantable proposition: 46 Ind App 72 at p. 87: (AIR 1918 PC 196 at p. 202). 20. That leaves the question of legal necessity to be considered. The High Court has held that the impugned transfer cannot be said to have been justified by legal necessity; and, in our opinion, the finding of the High Court on this point is obviously right. In dealing with this question it may be relevant to recall that the widow of the deceased Mudaliar had obtained letters of administration to the estate of the deceased on April 26, 1893, and, as usual, in issuing the letters limitation had been imposed upon the widow that she could not deal with or transfer the property in question without the requisite sanction. There is some force in the argument urged before us by Mr. Sastri on behalf of the respondent that it was with a view to avoid the necessity to obtain the requisite sanction that the widow of the deceased Mudaliar was persuaded by her mother-in-law to enter into the impugned transaction under the guise of a family arrangement. The document itself (Ex. D-5) does not purport to be justified by legal necessity. In terms it purports to give effect to the original arrangement of 1893 (Ex. D-2); and if the said arrangement is not valid as a family arrangement the subsequent transfer would also be invalid. Besides, out of a total consideration of about Rs. 10,000 the amount of Rs. 776 can be taken to represent the debts due by the deceased Mudaliar; the rest of the items of consideration cannot be treated as constituting a legal necessity at all. The amount of Rs. 558 was the expense incurred for executing the document; similarly the amount of Rs. 409 representing the funeral expense of the deceased Mudaliar, had apparently been spent by the widow who wanted to reimburse herself and that cannot be a legal necessity. The other items of consideration do not even purport to be for legal necessity. Therefore, in our opinion, the conclusion is inescapable that the impugned transfer is not justified by legal necessity.
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a patta in his favour. In fact the issue of the patta is a routine matter which would necessarily follow on the execution of the registered sale deed (Ex. D-5). On the registration of the said document persons who got certain immovable properties under it were given the certificates by the Collector in ordinary course, and so no argument can be built up against the respondent that the acceptance of the patta amounts to the ratification of the original transaction of saleIt appears that the plaintiff in that suit had based her claim on the said impugned transaction, and in respect of the said claim the respondent had alleged in paragraph 2 of his written statement that he admitted that in consequence of certain disputes which arose between the mother and the widow of the deceased Govinda Mudaliar a compromise settlement was arrived at in pursuance of which some transfers were effected. This, it is said, amounts to an admission of the validity of the said transaction (Ex. D-15). This argument, however, fails to take notice of the fact that while referring to the said compromise settlement the respondent had expressly added that the said compromise settlement was obviously to take effect only during the life tenancy of the widow of the deceased Govinda Mudaliar (Ex. P-3). In other words, taking the statement as a whole, as we must, the respondent looked upon the said compromise settlement as an alienation made by the widow and as intended to take effect during her lifetime and no more. In other words, far from supporting a plea of ratification against the respondent this statement strengthens his case that he took the benefit with the knowledge and under the belief that the arrangement under which the said benefit flowed was intended to be operative during the lifetime of the widow, and as such he had no occasion to challenge its validity whilst the widow was aliveIt is unnecessary to refer to the pleadings in the said suit or to specify in detail the reliefs claimed. The only point which is relevant to consider is that the reversioner had challenged the arrangement in question. The respondent by his written statement had purported to support the plea made by the plaintiff, and had added that he was no personally aware of any attempt on the part of defendants 2 to 4 to alienate the properties in respect of their possession and enjoyment. This suit, however, did not proceed to a trial as it was dismissed for want of prosecution, and the argument is that since the respondent had supported the plaintiff in the said suit it was necessary that he should have got himself transposed as a plaintiff, when he found that the original plaintiff was allowing the suit to be dismissed for non-prosecution. In our opinion, this argument is far-fetched and cannot possibly sustain the plea of ratification against the respondent. If the respondent took possession of the property under the arrangement with the distinct understanding that the arrangement was to last only during the lifetime of the widow, we see no justification for the assumption that he should have carried on Civil Suit No. 1117 of 1921 or should in fact have challenged the said arrangement at allIn our opinion there is no substance in this argumentHaving regard to the arrangement disclosed by the said document the benefit given to the respondent and the other children of the sisters of the deceased Mudaliar may as well have been based on the said arrangement, and all that the transactions of 1893 and 1895 did was to give effect to it (Exs. D-2 and D-5). Besides, as we have already pointed out, in 1893 the respondent was a minor, and when subsequent to 1895 he took possession of the property it does not appear on evidence that he knew that the intention of the widows was to treat the property as absolute owners and to convey absolute titles to the respective donees and transferees under the said transaction. He also could not have known about his rights as a possible reversioner. Therefore, in our opinion, the High Court was right in holding that the appellant had failed to establish his plea of ratification against the respondentIn dealing with this question it may be relevant to recall that the widow of the deceased Mudaliar had obtained letters of administration to the estate of the deceased on April 26, 1893, and, as usual, in issuing the letters limitation had been imposed upon the widow that she could not deal with or transfer the property in question without the requisite sanction. There is some force in the argument urged before us by Mr. Sastri on behalf of the respondent that it was with a view to avoid the necessity to obtain the requisite sanction that the widow of the deceased Mudaliar was persuaded by her mother-in-law to enter into the impugned transaction under the guise of a family arrangement. The document itself (Ex. D-5) does not purport to be justified by legal necessity. In terms it purports to give effect to the original arrangement of 1893 (Ex. D-2); and if the said arrangement is not valid as a family arrangement the subsequent transfer would also be invalid. Besides, out of a total consideration of about Rs. 10,000 the amount of Rs. 776 can be taken to represent the debts due by the deceased Mudaliar; the rest of the items of consideration cannot be treated as constituting a legal necessity at all. The amount of Rs. 558 was the expense incurred for executing the document; similarly the amount of Rs. 409 representing the funeral expense of the deceased Mudaliar, had apparently been spent by the widow who wanted to reimburse herself and that cannot be a legal necessity. The other items of consideration do not even purport to be for legal necessity. Therefore, in our opinion, the conclusion is inescapable that the impugned transfer is not justified by legal necessity.
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The State Of Assam Vs. Remesh Chandra Dey And Others | in the course of inter-State trade and the levy of tax thereon was within the prohibition enacted by Art. 286(2). We do not agree with this contention. The transactions of sales which have been taxed were wholly inside the State of Orissa. They were sales by persons in the State of Orissa to persons within the State of Orissa of goods which were in Orissa. The fact that the purchaser sold those very goods to dealers outside the State is not relevant, as those sales are distinct and separate from the sales on which the taxes in question have been imposed. The present levy is not on the sales by the petitioner to persons outside the State, but on the purchases by him inside the State. The former sales are in the course of inter-State trade, and are not taxable under Art. 286(2), but the latter are purely intra-State sales, and tax imposed thereon does not offend Art. 286(2)."These observations are entirely applicable in the context of the fact, as are to be found in this appeal. Indeed, all that is necessary to apply the above passage to the facts of this case is to substitute "Assam" in the place of "Orissa." In our opinion this point must be held to be concluded against the respondent.6. That leaves over for consideration the reasons given by Ram Labhaya, J., in his concurring judgment. Section 3 of the Act which created a liability to tax, was amended by Act 4 of 1951 by the introduction of sub-sec. (1)A in that section. That sub-section reads as follows ;"(1)A. Nothing in sub-sec. (1) shall, except in cases covered by the first proviso to sub-sec. (12) of S. 2 of this Act be deemed to render any dealer liable to tax on the sale of goods where such sale takes place-(i) outside the State of Assam;(ii) in the course of the import of the goods into, or export of the goods out of, the territory of India; or(iii) in the course of inter-State trade or commerce except in so far as Parliament may by law otherwise provide."The introduction of sub-s. (1)A did no more than repeat in the Act the prohibition contained in Art. 286. The first two clauses of this sub-section reiterate the prohibition contained in Art. 286(1), and the third clause reiterates the prohibition contained in Art. 286(2) of the Constitution. The first proviso to S, 2(12), which is referred to in sub-sec. (1)A, enacts the Explanation to cl. (1) of Art. 286.7. Now, it is quite clear that from the operation of the charging section Sales of a particular character are kept out. This provision saves from taxation. all those transactions which, if they were taxed, would have fallen within the ban of Art. 286. The effect of this saving is to make such transactions immune from taxation, and no further amendment of the law in the machinery section was necessary. What S. 15 does, is to grant an additional exemption in respect of sales in which the goods, though sold to a registered dealer, are meant for resale in the State itself. It is quite easy, to see that unless this exemption was granted, it was possible that there would have been sales tax at more than one point, namely, at the point at which the first registered dealer sold to the second registered dealer and again when the second registered dealer sold in his turn. To avoid taxation at multiple points on transactions of sale of the same goods within the State, it was provided that the tax shall be paid only on the last sale and not on the previous sales, so long as the previous sales were from registered dealers to registered dealers in respect of goods mentioned in the registration certificate of the latter and provided the goods were for resale in the State. When the charging section itself excluded taxation of sales in the course of inter-State trade or commerce it was hardly necessary to look for a repetition of the same exemption in the machinery section. It is an error to think that because the machinery section, namely, S. 15, does not repeat the exemption given by the charging section, the turnover of a dealer would necessarily include the sales in the course of inter-State trade or commerce. Even if the net turn over did so include such sales the dealer would, under sub-sec. (1)A of S. 3, be able to claim that those transactions were not taxable, because they fell within the ban of Art. 286(2) as well as S. 3(1)A(iii) of the Act. What has already been excluded by the operation of the Constitution and the Act cannot become taxable, because the net turnover has to be calculated in a particular manner. From that net turnover, such sales must be excluded by the operation of Art, 286(2) and S. 3(1)A of the Act. In our opinion, the ban of Art. 286(2), which is again re-enacted by S. 3(1)A, makes it incumbent that the sales falling within those provisions should be excluded from the net turnover.8. Reference was made to sub-sec. (2) of S. 3, and it was said that sub-sec (2) stated that every dealer to whom sub-sec. (1) did not apply shall be liable to be taxed under this Act, and that there was no mention of sub-sec. (1)A there. No doubt sub-sec. (2) does not mention sub-sec (1)A; but sub-sec. (1)A is not rendered ineffective by the omission. Sub-section (1)A speaks of its own force, and has to be given effect to, along with the remaining sub-sections of S. 3. Sub-section (1)A has the added support of Art. 286, and the Constitution must prevail. Thus, both Art. 286 and sub-sec, (1)A of S. 3 are there to save from taxation all sales in the course of inter-State trade or commerce, and there is no need to look further into the Act to see whether they are exempted once again or not. | 1[ds]In so far as the decision of the learned Chief Justice is concerned the point has been before this Court in another case.In Endupuri Narasimham and Son v. State of Orissa, WP No. 12 of 1959, D/14-3-1961: (AIR 1961 SC 1344 ) a similar question had arisen in connection with the Orissa Sales Tax Act, 1947. In dealing with transactions such as these this Court pointed out that only sales which affected inter-State trade or commerce directly and were an integral part thereof were saved under Art. 286 (2). On that occasion, reference was made to all the authorities of this Court which had discussed the question from the angle of Art. 286(1) of the Constitution and it was pointed out that the same reasoning applied also to Art. 286(2).It was observed in the case as follows :"The argument on behalf of the petitioner is that as the goods were purchased for the purpose of being sold to dealers outside the State, and they were, in fact, so sold, the purchases were in the course of inter-State trade and the levy of tax thereon was within the prohibition enacted by Art. 286(2). We do not agree with this contention. The transactions of sales which have been taxed were wholly inside the State of Orissa. They were sales by persons in the State of Orissa to persons within the State of Orissa of goods which were in Orissa. The fact that the purchaser sold those very goods to dealers outside the State is not relevant, as those sales are distinct and separate from the sales on which the taxes in question have been imposed. The present levy is not on the sales by the petitioner to persons outside the State, but on the purchases by him inside the State. The former sales are in the course of inter-State trade, and are not taxable under Art. 286(2), but the latter are purely intra-State sales, and tax imposed thereon does not offend Art. 286(2)."These observations are entirely applicable in the context of the fact, as are to be found in this appeal. Indeed, all that is necessary to apply the above passage to the facts of this case is to substitute "Assam" in the place of "Orissa." In our opinion this point must be held to be concluded against the respondent.Now, it is quite clear that from the operation of the charging section Sales of a particular character are kept out. This provision saves from taxation. all those transactions which, if they were taxed, would have fallen within the ban of Art. 286. The effect of this saving is to make such transactions immune from taxation, and no further amendment of the law in the machinery section was necessary. What S. 15 does, is to grant an additional exemption in respect of sales in which the goods, though sold to a registered dealer, are meant for resale in the State itself. It is quite easy, to see that unless this exemption was granted, it was possible that there would have been sales tax at more than one point, namely, at the point at which the first registered dealer sold to the second registered dealer and again when the second registered dealer sold in his turn. To avoid taxation at multiple points on transactions of sale of the same goods within the State, it was provided that the tax shall be paid only on the last sale and not on the previous sales, so long as the previous sales were from registered dealers to registered dealers in respect of goods mentioned in the registration certificate of the latter and provided the goods were for resale in the State. When the charging section itself excluded taxation of sales in the course of inter-State trade or commerce it was hardly necessary to look for a repetition of the same exemption in the machinery section. It is an error to think that because the machinery section, namely, S. 15, does not repeat the exemption given by the charging section, the turnover of a dealer would necessarily include the sales in the course of inter-State trade or commerce. Even if the net turn over did so include such sales the dealer would, under sub-sec. (1)A of S. 3, be able to claim that those transactions were not taxable, because they fell within the ban of Art. 286(2) as well as S. 3(1)A(iii) of the Act. What has already been excluded by the operation of the Constitution and the Act cannot become taxable, because the net turnover has to be calculated in a particular manner. From that net turnover, such sales must be excluded by the operation of Art, 286(2) and S. 3(1)A of the Act. In our opinion, the ban of Art. 286(2), which is again re-enacted by S. 3(1)A, makes it incumbent that the sales falling within those provisions should be excluded from the net turnover.8. Reference was made to sub-sec. (2) of S. 3, and it was said that sub-sec (2) stated that every dealer to whom sub-sec. (1) did not apply shall be liable to be taxed under this Act, and that there was no mention of sub-sec. (1)A there. No doubt sub-sec. (2) does not mention sub-sec (1)A; but sub-sec. (1)A is not rendered ineffective by the omission. Sub-section (1)A speaks of its own force, and has to be given effect to, along with the remaining sub-sections of S. 3. Sub-section (1)A has the added support of Art. 286, and the Constitution must prevail. Thus, both Art. 286 and sub-sec, (1)A of S. 3 are there to save from taxation all sales in the course of inter-State trade or commerce, and there is no need to look further into the Act to see whether they are exempted once again or not. | 1 | 2,527 | 1,150 | ### 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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in the course of inter-State trade and the levy of tax thereon was within the prohibition enacted by Art. 286(2). We do not agree with this contention. The transactions of sales which have been taxed were wholly inside the State of Orissa. They were sales by persons in the State of Orissa to persons within the State of Orissa of goods which were in Orissa. The fact that the purchaser sold those very goods to dealers outside the State is not relevant, as those sales are distinct and separate from the sales on which the taxes in question have been imposed. The present levy is not on the sales by the petitioner to persons outside the State, but on the purchases by him inside the State. The former sales are in the course of inter-State trade, and are not taxable under Art. 286(2), but the latter are purely intra-State sales, and tax imposed thereon does not offend Art. 286(2)."These observations are entirely applicable in the context of the fact, as are to be found in this appeal. Indeed, all that is necessary to apply the above passage to the facts of this case is to substitute "Assam" in the place of "Orissa." In our opinion this point must be held to be concluded against the respondent.6. That leaves over for consideration the reasons given by Ram Labhaya, J., in his concurring judgment. Section 3 of the Act which created a liability to tax, was amended by Act 4 of 1951 by the introduction of sub-sec. (1)A in that section. That sub-section reads as follows ;"(1)A. Nothing in sub-sec. (1) shall, except in cases covered by the first proviso to sub-sec. (12) of S. 2 of this Act be deemed to render any dealer liable to tax on the sale of goods where such sale takes place-(i) outside the State of Assam;(ii) in the course of the import of the goods into, or export of the goods out of, the territory of India; or(iii) in the course of inter-State trade or commerce except in so far as Parliament may by law otherwise provide."The introduction of sub-s. (1)A did no more than repeat in the Act the prohibition contained in Art. 286. The first two clauses of this sub-section reiterate the prohibition contained in Art. 286(1), and the third clause reiterates the prohibition contained in Art. 286(2) of the Constitution. The first proviso to S, 2(12), which is referred to in sub-sec. (1)A, enacts the Explanation to cl. (1) of Art. 286.7. Now, it is quite clear that from the operation of the charging section Sales of a particular character are kept out. This provision saves from taxation. all those transactions which, if they were taxed, would have fallen within the ban of Art. 286. The effect of this saving is to make such transactions immune from taxation, and no further amendment of the law in the machinery section was necessary. What S. 15 does, is to grant an additional exemption in respect of sales in which the goods, though sold to a registered dealer, are meant for resale in the State itself. It is quite easy, to see that unless this exemption was granted, it was possible that there would have been sales tax at more than one point, namely, at the point at which the first registered dealer sold to the second registered dealer and again when the second registered dealer sold in his turn. To avoid taxation at multiple points on transactions of sale of the same goods within the State, it was provided that the tax shall be paid only on the last sale and not on the previous sales, so long as the previous sales were from registered dealers to registered dealers in respect of goods mentioned in the registration certificate of the latter and provided the goods were for resale in the State. When the charging section itself excluded taxation of sales in the course of inter-State trade or commerce it was hardly necessary to look for a repetition of the same exemption in the machinery section. It is an error to think that because the machinery section, namely, S. 15, does not repeat the exemption given by the charging section, the turnover of a dealer would necessarily include the sales in the course of inter-State trade or commerce. Even if the net turn over did so include such sales the dealer would, under sub-sec. (1)A of S. 3, be able to claim that those transactions were not taxable, because they fell within the ban of Art. 286(2) as well as S. 3(1)A(iii) of the Act. What has already been excluded by the operation of the Constitution and the Act cannot become taxable, because the net turnover has to be calculated in a particular manner. From that net turnover, such sales must be excluded by the operation of Art, 286(2) and S. 3(1)A of the Act. In our opinion, the ban of Art. 286(2), which is again re-enacted by S. 3(1)A, makes it incumbent that the sales falling within those provisions should be excluded from the net turnover.8. Reference was made to sub-sec. (2) of S. 3, and it was said that sub-sec (2) stated that every dealer to whom sub-sec. (1) did not apply shall be liable to be taxed under this Act, and that there was no mention of sub-sec. (1)A there. No doubt sub-sec. (2) does not mention sub-sec (1)A; but sub-sec. (1)A is not rendered ineffective by the omission. Sub-section (1)A speaks of its own force, and has to be given effect to, along with the remaining sub-sections of S. 3. Sub-section (1)A has the added support of Art. 286, and the Constitution must prevail. Thus, both Art. 286 and sub-sec, (1)A of S. 3 are there to save from taxation all sales in the course of inter-State trade or commerce, and there is no need to look further into the Act to see whether they are exempted once again or not.
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In so far as the decision of the learned Chief Justice is concerned the point has been before this Court in another case.In Endupuri Narasimham and Son v. State of Orissa, WP No. 12 of 1959, D/14-3-1961: (AIR 1961 SC 1344 ) a similar question had arisen in connection with the Orissa Sales Tax Act, 1947. In dealing with transactions such as these this Court pointed out that only sales which affected inter-State trade or commerce directly and were an integral part thereof were saved under Art. 286 (2). On that occasion, reference was made to all the authorities of this Court which had discussed the question from the angle of Art. 286(1) of the Constitution and it was pointed out that the same reasoning applied also to Art. 286(2).It was observed in the case as follows :"The argument on behalf of the petitioner is that as the goods were purchased for the purpose of being sold to dealers outside the State, and they were, in fact, so sold, the purchases were in the course of inter-State trade and the levy of tax thereon was within the prohibition enacted by Art. 286(2). We do not agree with this contention. The transactions of sales which have been taxed were wholly inside the State of Orissa. They were sales by persons in the State of Orissa to persons within the State of Orissa of goods which were in Orissa. The fact that the purchaser sold those very goods to dealers outside the State is not relevant, as those sales are distinct and separate from the sales on which the taxes in question have been imposed. The present levy is not on the sales by the petitioner to persons outside the State, but on the purchases by him inside the State. The former sales are in the course of inter-State trade, and are not taxable under Art. 286(2), but the latter are purely intra-State sales, and tax imposed thereon does not offend Art. 286(2)."These observations are entirely applicable in the context of the fact, as are to be found in this appeal. Indeed, all that is necessary to apply the above passage to the facts of this case is to substitute "Assam" in the place of "Orissa." In our opinion this point must be held to be concluded against the respondent.Now, it is quite clear that from the operation of the charging section Sales of a particular character are kept out. This provision saves from taxation. all those transactions which, if they were taxed, would have fallen within the ban of Art. 286. The effect of this saving is to make such transactions immune from taxation, and no further amendment of the law in the machinery section was necessary. What S. 15 does, is to grant an additional exemption in respect of sales in which the goods, though sold to a registered dealer, are meant for resale in the State itself. It is quite easy, to see that unless this exemption was granted, it was possible that there would have been sales tax at more than one point, namely, at the point at which the first registered dealer sold to the second registered dealer and again when the second registered dealer sold in his turn. To avoid taxation at multiple points on transactions of sale of the same goods within the State, it was provided that the tax shall be paid only on the last sale and not on the previous sales, so long as the previous sales were from registered dealers to registered dealers in respect of goods mentioned in the registration certificate of the latter and provided the goods were for resale in the State. When the charging section itself excluded taxation of sales in the course of inter-State trade or commerce it was hardly necessary to look for a repetition of the same exemption in the machinery section. It is an error to think that because the machinery section, namely, S. 15, does not repeat the exemption given by the charging section, the turnover of a dealer would necessarily include the sales in the course of inter-State trade or commerce. Even if the net turn over did so include such sales the dealer would, under sub-sec. (1)A of S. 3, be able to claim that those transactions were not taxable, because they fell within the ban of Art. 286(2) as well as S. 3(1)A(iii) of the Act. What has already been excluded by the operation of the Constitution and the Act cannot become taxable, because the net turnover has to be calculated in a particular manner. From that net turnover, such sales must be excluded by the operation of Art, 286(2) and S. 3(1)A of the Act. In our opinion, the ban of Art. 286(2), which is again re-enacted by S. 3(1)A, makes it incumbent that the sales falling within those provisions should be excluded from the net turnover.8. Reference was made to sub-sec. (2) of S. 3, and it was said that sub-sec (2) stated that every dealer to whom sub-sec. (1) did not apply shall be liable to be taxed under this Act, and that there was no mention of sub-sec. (1)A there. No doubt sub-sec. (2) does not mention sub-sec (1)A; but sub-sec. (1)A is not rendered ineffective by the omission. Sub-section (1)A speaks of its own force, and has to be given effect to, along with the remaining sub-sections of S. 3. Sub-section (1)A has the added support of Art. 286, and the Constitution must prevail. Thus, both Art. 286 and sub-sec, (1)A of S. 3 are there to save from taxation all sales in the course of inter-State trade or commerce, and there is no need to look further into the Act to see whether they are exempted once again or not.
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H. Venkatachala Iyengar Vs. B.N. Thimmajamma & Others | him, the testatrix said that she would agree to whatever the appellant would get written. The relevant evidence of this witness is clearly inconsistent with the appellants case about previous instructions and so it would be difficult to treat the evidence of this witness as sufficient to prove that the testatrix fully understood the nature of the recitals in the preamble and the effect of the dispositions before she put her signature to the will. The evidence of the appellant (P. W. 7) cannot obviously be useful because it is the evidence of an interested witness and is besides not very satisfactory. On behalf of the appellant it was urged before us by Mr. Iyengar that the evidence of Kalbagal (P.W. 4) is disinterested and so it should be believed. That also appears to be the view taken by the trial Court. In our opinion, however, it would not be right or correct to describe Kalbagal as wholly disinterested. Respondent No. 5 who is the step-brother of Kalbagal and who stays with him in the same house along with their father has admittedly received substantial benefit under the will. If an undivided brother of P. W. 4 has received this benefit it would not be accurate to say that the witness is wholly disinterested. Besides, it appears from the evidence of Kalbagal that he knew nothing about the execution of the will until the appellant asked him to get some attesting witnesses for the will. This evidence does not strike us as natural or probable; but apart from it, even Kalbagals evidence does not show satisfactorily that the will was read out to the testatrix so as to enable her to understand its full effect before it was signed by her. That is the whole of the evidence led by the appellant on the question of the execution of the will. On this evidence we are not prepared to hold that the High Court was in error in coming to the conclusion that it was not shown that the testatrix fully understood the contents of the will and put her signature on the instrument intending that the recitals and the dispositions in the will should be her recitals and dispositions.39. In this connection we would like to add that the learned trial Judge appears to have misdirected himself in law inasmuch as he thought that the proof of the signature of the testatrix on the will raised a presumption that the will had been executed by her. In support of this view the learned Judge has referred to the decision of the Calcutta High Court in Surendra Nath v. Jahnavi Charan, I L R 56 Cal 390 : (A I R 1929 Cal 484 ).In this case no doubt the Calcutta High Court has held that on the proof of the signature of the deceased or his acknowledgment that he has signed the will he will be presumed to have known the provisions of the instrument he has signed; but Mr. Justice B. B. Ghose, in his judgment, has also added that the said presumption is liable to be rebutted by proof of suspicious circumstances and that undoubtedly is the true legal position. What circumstances would be regarded as suspicious cannot be precisely defined or exhaustively enumerated.That inevitably would be a question of fact in each case. Unfortunately the learned trial Judge did not properly assess the effect of suspicious circumstances in the present case to which we have already referred and that has introduced a serious infirmity in his final conclusion. Incidentally we may also refer to the fact that the appellant obtained a power of attorney from the testatrix on the same day; and that has given rise to the argument that the appellant was keen on taking possession and management of the properties under his control even before the death of the tastatrix. There is also another circumstance which may be mentioned and that is that the Sub-Registrar, in whose presence the document was registered on the same day, has not been examined though he was alive at the date of the trial.On these facts then we are inclined to hold that the High Court was justified in reversing the finding of the trial Court on the question of the due and valid execution of the will.40. Before we part with this case, however, we would like to add that the High Court was not justified in recording its findings on two other issues in the present appeal. As we have already indicated, the High Court itself has observed that, once it was held that the will had not been proved by the appellant, no other issue survived for decision. Even so, the High Court has expressed its conclusions in favour of respondent 1 on the question about the character of the subsequent acquisitions of items 3, 4 and 5 and about the subsisting title of the testatrix in respect of all the properties covered by the will. Having regard to the relationship between the parties it is difficult to understand how mere entries in the revenue record made in the name of Sadagpalachar or the long possession of Sadagopalachar and, after his death, of Narayana Iyengar can prove the transfer of Lakshmammas title or its extinction by adverse possession respectively. It is apparent that, in recording these conclusions, the High Court has not fully or properly considered all the relevant evidence; and consequently, the reasons given by it are open to serious challenge on the merits. Indeed Mr. Viswanatha Sastri did not appear to be inclined to support the said findings. We do not, however, propose to decide these questions on the merits because in view of our conclusion on the principal issue it is unnecessary to consider any other points. We would, therefore, like to make it clear that the said two issues are not decided in the present proceedings and may have to be considered afresh between the parties if and when they arise. | 0[ds]24. It would, therefore, be necessary at this stage to decide whether an execution of the will in the present case is surrounded by any suspicious circumstances. Does the will appear to be on the whole an improbable, unnatural and unfair instrument as held by the High Court ? That is the first question which falls to be considered. We have already indicated that the preamble to the will contains many argumentative recitals. Indeed it would not be unjust to say that the preamble purports to meet by anticipation the main objections which were likely to be raised to the competence of Lakshmamma to make a will in regard to the properties covered by it. The preamble in great detail makes out a case that the properties received by the testatrix and her husband under the gift deed (Ex. D) devolved upon her by survivorship after her husbands death, a plea which has not been accepted even by the trial Court. It also seeks to prove that the subsequent purchases made by her husband were in law the joint acquisitions of her husband and herself, a point on which the two courts below have differed. It sets out in detail the theory that the son of the testatrix has lost his right, title and interest in the properties which devolved on him after his fathers death because he had alienated more than his share in the said properties during his lifetime; and it even suggests that during his illness and to help him to build a house in Mysore the testatrix had advanced him money from her separate funds, pleas which have not been accepted by either Court below. It seems to us that the elaborate and well considered recitals which have been deliberately introduced in the preamble cannot possibly be the result of corresponding instructions given by the testatrix to the appellant for preparing the draft of her will. In the context these recitals sound artificial and unnatural and some of them at any rate are untrue. The draftsman of the will has tried to be over-wise and that itself is a very serious infirmity in the appellants case that the instrument represents the last will and testament of the testatrix. Take for instance the statement in the will that the testatrix had advanced Rs. 3,000 to her son to enable him to purchase a house at Mysore. By itself this is not a matter of very great importance; but this detail has been introduced in the will in order to make out a strong case that all the properties mentioned in the will were the separate properties of the testatrix and so it would be relevant to consider what the appellant himself has to say about this recital. In regard to the Rs. 3,000 in cross-examination the appellant has stated that Mr. B. G. Ramakrishna Iyengar had sent this amount to the husband of respondent 1 in 1942 or so. It was sent by cheque on Mysore Bank. The appellant then added that the husband of respondent 1 had deposited this amount with B.G. Ramakrishna Iyengars father-in-law after selling Goudanahalli lands with intent to purchase lands at Mysore; so that the claim made in the will that the testatrix had given this amount to her son out of her separate funds is inaccurate. The manner in which the several recitals have been made in the will amounts to a suspicious circumstance which must be satisfactorily explained by the appellant.25. The next circumstance which calls for an explanation is the exclusion of the grandchildren of the testatrix from any substantial legacies under the will. It is true that a bequest of Rs. 500 each is given to them but that can hardly be regarded as fair or just to these children. It was, however, urged by Mr. Iyengar before its that Narayana Iyengar had, during his lifetime, given lands to his sisters daughters. He had also spent considerable amounts on the occasion of their marriages and had given them each valuable ornaments. In this connection, he referred us to certain documents exhibited under Ex. G and attempted to show that the lands given to his sisters daughters were of the value of its.1,500 to Rs. 2000 each. Apart from the fact that the value of these lands is not clearly proved nor are the circumstances under which they came to be gifted to the donees, we do not think it would be possible to accept the argument that even with these gifts the testatrix would not have thought of making more substantial bequests to her grand-children. It is not suggested that the relations between the testatrix and these grand-children were not cordial and affectionate and so it would he reasonable to assume that they would have been the objects of her bounties in a more liberal measure in ordinary circumstances.26. There is one more point which must be considered in this connection. As we have already mentioned the appellants sons have received substantial bounties under the will. Are these bequests probable and natural ? It must be remembered that the appellant came into the family of Annaji by a option long after the testatrix was married. The record does not show that the testatrix was on such affectionate terms with the appellant that she would have preferred to" make a bequest to his sons rather than to her own grand-children. Indeed the appellant admitted that, at the relevant time, he was in straightened circumstances and was indebted to the extent of nearly Rs. 30,000; and it does not appear that when he was faced with financial difficulties of this magnitude he asked for or obtained any assistance from his adoptive sister. That is why the bequests to the appellants sons also amount to a suspicious circumstance which must be clearly explained by the appellant. We cannot easily reject the argument urged on behalf of respondent 1 that the bequests have been made in the names of the appellants sons because. if they had been made in his own name, the properties bequeathed would have been attached and sold at the instance of his numerous creditors. We do not propose to measure precisely the value of the properties bequeathed to the appellants sons. It would be enough to say that the said bequests are by no means insignificant or unsubstantial. Therefore, we are unable to see how the appellant can successfully challenge the finding of the High Court that some of the broad features of the will appear to be improbable and unfair; and if that be so, the appellant will have to remove the suspicions arising from these features before he can persuade the Court to accept the instrument as the last will and testament of the testatrix.27. In this connection it is necessary to bear in mind that the appellant whose sons have received the said bequests has admittedly taken a very prominent part in bringing about the execution of the will. He has prepared the draft and it was at his dictation that the scribe wrote the will. Indeed on the important question as to when and how instructions were given by the testatrix and whether or not in preparing the draft those instructions have been faithfully carried out, the only evidence adduced in the case is that of the appellant and no one else. Thus, the very important, if not the decisive, part played by the appellant in the execution of the will cannot at all be disputed in the present case.case.36. It is in the light of these decisions that the appellant wants us to consider the evidence which he has adduced in the present case. It would be convenient to begin with the appellants story about the instructions given by the testatrix for preparing the will. In the plaint the appellant has referred to the sudden illness of the testatrix at Mandya and it is alleged that when she took ill the testatrix sent for him with the obvious intention of making arrangements regarding her properties. Accordingly when he met her at Mandya she explained all her intentions to him in the matter of disposing all her properties and her rights thereto. In other words, the case made out in the plaint clearly and specifically is that when the testatrix was ill at Mandya she sent for the appellant and gave him instructions for preparing a draft of her will. However, when the appellant gave evidence he made a material improvement in his story. According to his evidence, the appellant had receive instructions from the testatrix a year before the will was actually drafted. It was then that the testatrix had given him the gift deed (Ex. D) and asked him to prepare the draft. Consistently with this new version the appellant has added in his evidence that when he met her at Mandya during her illness she reminded him that she had asked him to make a will for quite some time and she insisted that the draft should be prepared without any delay. In our opinion, the evidence given by the appellant on this point is clearly an after-thought and his story that he had received previous instructions cannot be accepted as true. Besides, it is somewhat remarkable that, on both the occasions when the testatrix talked to the appellant and gave instructions to him, no one else was present; and so the proof of this part of the appellants case rests solely on his own testimony. If the testatrix had really thought of making a will for over a year before it was actually executed, it is unlikely that she would not have talked about it to other relatives including Kalbagal with whom she was actually staying at the material time.37. Then it would be necessary to enquire whether the draft which the appellant prepared was consistent with the instructions alleged to have been given by the testatrix. The draft, however, has not been produced in the case on the plea that it had been destroyed; nor is it specifically stated by the appellant that this draft was read out fully to the testatrix before he dictated the contents of the will to the scribe. Thus even the interested testimony of the appellant does not show that he obtained approval of the draft from the testatrix after reading it out fully to her clause by clause. It is common ground that Mandya where the testatrix was lying ill is a place where the assistance of local lawyers would have been easily available; and in ordinary course the testatrix would have talked to Kalbagal and the appellant and they would have secured the assistance of the lawyers for drafting the will; but that is not what the appellant did. He went to Mysore and if his evidence is to be believed he prepared the draft without any legal assistance. Having regard to the nature of the recitals contained in the will it is not easy to accept this part of the appellants case. Besides, as we have already indicated, we find great difficulty in believing that the elaborate recitals could have been the result of the instructions given by the testatrix herself.38. It is in the light of these circumstances that the direct evidence about the execution of the will has to be considered. The evidence of P. W. 1 is really inconclusive on the point about the execution of the will. Apart from the fact that he had no clear recollection as to what happened on the day when he attested the will , this witness has frankly stated that he could not state definitely whether the whole of the document was read over to the testatrix before he put the attesting signature; and it was naturally of very great importance in this case to produce satisfactory evidence that the will was read out to the testatrix and she understood the nature and effect of its contents. On this point even if P. W. 1 is believed it does not help the appellants case. The evidence of P. W. 2 cannot carry much weight because his main story that he was present at the time when the will was written is wholly inconsistent with the evidence of P. Ws. 3, 4 and 7. That leaves the evidence of the scribe and the appellant himself. The scribe (P. W. 3) is a near relation of Kalbagal and even he does not at all support the appellants case about previous instruction because, according to him, the testatrix said that she would agree to whatever the appellant would get written. The relevant evidence of this witness is clearly inconsistent with the appellants case about previous instructions and so it would be difficult to treat the evidence of this witness as sufficient to prove that the testatrix fully understood the nature of the recitals in the preamble and the effect of the dispositions before she put her signature to the will. The evidence of the appellant (P. W. 7) cannot obviously be useful because it is the evidence of an interested witness and is besides not very satisfactory. On behalf of the appellant it was urged before us by Mr. Iyengar that the evidence of Kalbagal (P.W. 4) is disinterested and so it should be believed. That also appears to be the view taken by the trial Court. In our opinion, however, it would not be right or correct to describe Kalbagal as wholly disinterested. Respondent No. 5 who is the step-brother of Kalbagal and who stays with him in the same house along with their father has admittedly received substantial benefit under the will. If an undivided brother of P. W. 4 has received this benefit it would not be accurate to say that the witness is wholly disinterested. Besides, it appears from the evidence of Kalbagal that he knew nothing about the execution of the will until the appellant asked him to get some attesting witnesses for the will. This evidence does not strike us as natural or probable; but apart from it, even Kalbagals evidence does not show satisfactorily that the will was read out to the testatrix so as to enable her to understand its full effect before it was signed by her. That is the whole of the evidence led by the appellant on the question of the execution of the will. On this evidence we are not prepared to hold that the High Court was in error in coming to the conclusion that it was not shown that the testatrix fully understood the contents of the will and put her signature on the instrument intending that the recitals and the dispositions in the will should be her recitals and dispositions.39. In this connection we would like to add that the learned trial Judge appears to have misdirected himself in law inasmuch as he thought that the proof of the signature of the testatrix on the will raised a presumption that the will had been executed by her. In support of this view the learned Judge has referred to the decision of the Calcutta High Court in Surendra Nath v. Jahnavi Charan, I L R 56 Cal 390 : (A I R 1929 Cal 484 ).In this case no doubt the Calcutta High Court has held that on the proof of the signature of the deceased or his acknowledgment that he has signed the will he will be presumed to have known the provisions of the instrument he has signed; but Mr. Justice B. B. Ghose, in his judgment, has also added that the said presumption is liable to be rebutted by proof of suspicious circumstances and that undoubtedly is the true legal position. What circumstances would be regarded as suspicious cannot be precisely defined or exhaustively enumerated.That inevitably would be a question of fact in each case. Unfortunately the learned trial Judge did not properly assess the effect of suspicious circumstances in the present case to which we have already referred and that has introduced a serious infirmity in his final conclusion. Incidentally we may also refer to the fact that the appellant obtained a power of attorney from the testatrix on the same day; and that has given rise to the argument that the appellant was keen on taking possession and management of the properties under his control even before the death of the tastatrix. There is also another circumstance which may be mentioned and that is that the Sub-Registrar, in whose presence the document was registered on the same day, has not been examined though he was alive at the date of the trial.On these facts then we are inclined to hold that the High Court was justified in reversing the finding of the trial Court on the question of the due and valid execution of the will.40. Before we part with this case, however, we would like to add that the High Court was not justified in recording its findings on two other issues in the present appeal. As we have already indicated, the High Court itself has observed that, once it was held that the will had not been proved by the appellant, no other issue survived for decision. Even so, the High Court has expressed its conclusions in favour of respondent 1 on the question about the character of the subsequent acquisitions of items 3, 4 and 5 and about the subsisting title of the testatrix in respect of all the properties covered by the will. Having regard to the relationship between the parties it is difficult to understand how mere entries in the revenue record made in the name of Sadagpalachar or the long possession of Sadagopalachar and, after his death, of Narayana Iyengar can prove the transfer of Lakshmammas title or its extinction by adverse possession respectively. It is apparent that, in recording these conclusions, the High Court has not fully or properly considered all the relevant evidence; and consequently, the reasons given by it are open to serious challenge on the merits. Indeed Mr. Viswanatha Sastri did not appear to be inclined to support the said findings. We do not, however, propose to decide these questions on the merits because in view of our conclusion on the principal issue it is unnecessary to consider any other points. We would, therefore, like to make it clear that the said two issues are not decided in the present proceedings and may have to be considered afresh between the parties if and when they arise. | 0 | 14,891 | 3,294 | ### Instruction:
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him, the testatrix said that she would agree to whatever the appellant would get written. The relevant evidence of this witness is clearly inconsistent with the appellants case about previous instructions and so it would be difficult to treat the evidence of this witness as sufficient to prove that the testatrix fully understood the nature of the recitals in the preamble and the effect of the dispositions before she put her signature to the will. The evidence of the appellant (P. W. 7) cannot obviously be useful because it is the evidence of an interested witness and is besides not very satisfactory. On behalf of the appellant it was urged before us by Mr. Iyengar that the evidence of Kalbagal (P.W. 4) is disinterested and so it should be believed. That also appears to be the view taken by the trial Court. In our opinion, however, it would not be right or correct to describe Kalbagal as wholly disinterested. Respondent No. 5 who is the step-brother of Kalbagal and who stays with him in the same house along with their father has admittedly received substantial benefit under the will. If an undivided brother of P. W. 4 has received this benefit it would not be accurate to say that the witness is wholly disinterested. Besides, it appears from the evidence of Kalbagal that he knew nothing about the execution of the will until the appellant asked him to get some attesting witnesses for the will. This evidence does not strike us as natural or probable; but apart from it, even Kalbagals evidence does not show satisfactorily that the will was read out to the testatrix so as to enable her to understand its full effect before it was signed by her. That is the whole of the evidence led by the appellant on the question of the execution of the will. On this evidence we are not prepared to hold that the High Court was in error in coming to the conclusion that it was not shown that the testatrix fully understood the contents of the will and put her signature on the instrument intending that the recitals and the dispositions in the will should be her recitals and dispositions.39. In this connection we would like to add that the learned trial Judge appears to have misdirected himself in law inasmuch as he thought that the proof of the signature of the testatrix on the will raised a presumption that the will had been executed by her. In support of this view the learned Judge has referred to the decision of the Calcutta High Court in Surendra Nath v. Jahnavi Charan, I L R 56 Cal 390 : (A I R 1929 Cal 484 ).In this case no doubt the Calcutta High Court has held that on the proof of the signature of the deceased or his acknowledgment that he has signed the will he will be presumed to have known the provisions of the instrument he has signed; but Mr. Justice B. B. Ghose, in his judgment, has also added that the said presumption is liable to be rebutted by proof of suspicious circumstances and that undoubtedly is the true legal position. What circumstances would be regarded as suspicious cannot be precisely defined or exhaustively enumerated.That inevitably would be a question of fact in each case. Unfortunately the learned trial Judge did not properly assess the effect of suspicious circumstances in the present case to which we have already referred and that has introduced a serious infirmity in his final conclusion. Incidentally we may also refer to the fact that the appellant obtained a power of attorney from the testatrix on the same day; and that has given rise to the argument that the appellant was keen on taking possession and management of the properties under his control even before the death of the tastatrix. There is also another circumstance which may be mentioned and that is that the Sub-Registrar, in whose presence the document was registered on the same day, has not been examined though he was alive at the date of the trial.On these facts then we are inclined to hold that the High Court was justified in reversing the finding of the trial Court on the question of the due and valid execution of the will.40. Before we part with this case, however, we would like to add that the High Court was not justified in recording its findings on two other issues in the present appeal. As we have already indicated, the High Court itself has observed that, once it was held that the will had not been proved by the appellant, no other issue survived for decision. Even so, the High Court has expressed its conclusions in favour of respondent 1 on the question about the character of the subsequent acquisitions of items 3, 4 and 5 and about the subsisting title of the testatrix in respect of all the properties covered by the will. Having regard to the relationship between the parties it is difficult to understand how mere entries in the revenue record made in the name of Sadagpalachar or the long possession of Sadagopalachar and, after his death, of Narayana Iyengar can prove the transfer of Lakshmammas title or its extinction by adverse possession respectively. It is apparent that, in recording these conclusions, the High Court has not fully or properly considered all the relevant evidence; and consequently, the reasons given by it are open to serious challenge on the merits. Indeed Mr. Viswanatha Sastri did not appear to be inclined to support the said findings. We do not, however, propose to decide these questions on the merits because in view of our conclusion on the principal issue it is unnecessary to consider any other points. We would, therefore, like to make it clear that the said two issues are not decided in the present proceedings and may have to be considered afresh between the parties if and when they arise.
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said that she would agree to whatever the appellant would get written. The relevant evidence of this witness is clearly inconsistent with the appellants case about previous instructions and so it would be difficult to treat the evidence of this witness as sufficient to prove that the testatrix fully understood the nature of the recitals in the preamble and the effect of the dispositions before she put her signature to the will. The evidence of the appellant (P. W. 7) cannot obviously be useful because it is the evidence of an interested witness and is besides not very satisfactory. On behalf of the appellant it was urged before us by Mr. Iyengar that the evidence of Kalbagal (P.W. 4) is disinterested and so it should be believed. That also appears to be the view taken by the trial Court. In our opinion, however, it would not be right or correct to describe Kalbagal as wholly disinterested. Respondent No. 5 who is the step-brother of Kalbagal and who stays with him in the same house along with their father has admittedly received substantial benefit under the will. If an undivided brother of P. W. 4 has received this benefit it would not be accurate to say that the witness is wholly disinterested. Besides, it appears from the evidence of Kalbagal that he knew nothing about the execution of the will until the appellant asked him to get some attesting witnesses for the will. This evidence does not strike us as natural or probable; but apart from it, even Kalbagals evidence does not show satisfactorily that the will was read out to the testatrix so as to enable her to understand its full effect before it was signed by her. That is the whole of the evidence led by the appellant on the question of the execution of the will. On this evidence we are not prepared to hold that the High Court was in error in coming to the conclusion that it was not shown that the testatrix fully understood the contents of the will and put her signature on the instrument intending that the recitals and the dispositions in the will should be her recitals and dispositions.39. In this connection we would like to add that the learned trial Judge appears to have misdirected himself in law inasmuch as he thought that the proof of the signature of the testatrix on the will raised a presumption that the will had been executed by her. In support of this view the learned Judge has referred to the decision of the Calcutta High Court in Surendra Nath v. Jahnavi Charan, I L R 56 Cal 390 : (A I R 1929 Cal 484 ).In this case no doubt the Calcutta High Court has held that on the proof of the signature of the deceased or his acknowledgment that he has signed the will he will be presumed to have known the provisions of the instrument he has signed; but Mr. Justice B. B. Ghose, in his judgment, has also added that the said presumption is liable to be rebutted by proof of suspicious circumstances and that undoubtedly is the true legal position. What circumstances would be regarded as suspicious cannot be precisely defined or exhaustively enumerated.That inevitably would be a question of fact in each case. Unfortunately the learned trial Judge did not properly assess the effect of suspicious circumstances in the present case to which we have already referred and that has introduced a serious infirmity in his final conclusion. Incidentally we may also refer to the fact that the appellant obtained a power of attorney from the testatrix on the same day; and that has given rise to the argument that the appellant was keen on taking possession and management of the properties under his control even before the death of the tastatrix. There is also another circumstance which may be mentioned and that is that the Sub-Registrar, in whose presence the document was registered on the same day, has not been examined though he was alive at the date of the trial.On these facts then we are inclined to hold that the High Court was justified in reversing the finding of the trial Court on the question of the due and valid execution of the will.40. Before we part with this case, however, we would like to add that the High Court was not justified in recording its findings on two other issues in the present appeal. As we have already indicated, the High Court itself has observed that, once it was held that the will had not been proved by the appellant, no other issue survived for decision. Even so, the High Court has expressed its conclusions in favour of respondent 1 on the question about the character of the subsequent acquisitions of items 3, 4 and 5 and about the subsisting title of the testatrix in respect of all the properties covered by the will. Having regard to the relationship between the parties it is difficult to understand how mere entries in the revenue record made in the name of Sadagpalachar or the long possession of Sadagopalachar and, after his death, of Narayana Iyengar can prove the transfer of Lakshmammas title or its extinction by adverse possession respectively. It is apparent that, in recording these conclusions, the High Court has not fully or properly considered all the relevant evidence; and consequently, the reasons given by it are open to serious challenge on the merits. Indeed Mr. Viswanatha Sastri did not appear to be inclined to support the said findings. We do not, however, propose to decide these questions on the merits because in view of our conclusion on the principal issue it is unnecessary to consider any other points. We would, therefore, like to make it clear that the said two issues are not decided in the present proceedings and may have to be considered afresh between the parties if and when they arise.
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State of Haryana Vs. United Riceland (P.) Ltd | exemption Section and as the rice from the paddy procured by the Respondent from within the State was to be exported, the benefit of exemption Under Section 9(1)(b) of the Act was held in favour of the Respondents.2. The Haryana General Sales Tax Act was amended in the year 2003 by Amendment Act No. 4 of 2003 (hereinafter referred to as "2003 Amendment"), inter alia, amending Section 6 of the Act making the provisions of Section 6 of the Act subject to Sections 15 and 27 thereof in place of the "other provisions of the Act", as contained earlier. Section 9 of the Act which was already omitted/deleted with effect from 1st April, 1991 remained untouched by the 2003 Amendment. As the amended provisions of the Act were relied upon to deny the benefit of refund to the Respondents for purchase tax paid for periods when Section 9 was in force, the matter was re-agitated before the High Court of Punjab and Haryana. By the impugned order, the High Court answered the issue in favour of the Respondents. Aggrieved, these appeals have been filed.3. The opinion rendered by the High Court in the impugned order succinctly sum up the issue in the following terms:In the light of the above, we shall now consider whether the sole purpose of the impugned amendments is to nullify the judgment of the Supreme Court in Satnam Overseas (Export) v. State of Haryana {supra) and, therefore, the same are ultra vires to the legislative power of the state. A bare reading of the two Amending Acts shows that by amending Section 6 of the Haryana Sales Tax Act, the State Legislature has made the provisions of that Section subject to Sections 15 and 27, whereas un-amended Section 6 was subject to other provisions of the Act. Section 9(1)(b) of the Haryana Sales Tax Act, which was deleted w.e.f. 1-4-1991, has not been erased from the statute book with retrospective effect. Notwithstanding this, by virtue of Clause (3) of Haryana Act No. 4 of 2003 and Clause (f) of Haryana Act No. 4 of 2004, attempt has been made to validate and legalise the levy of tax on purchase of paddy on or after 1-4-1981. The use of the expression "notwithstanding" anything to the contrary contained in judgment, decree or order of any court...." in the validation Clause contained in Haryana Act No. 4 of 2003 leaves no manner of doubt that the sole purpose of that Clause is to nullify the effect of the judgment of the Supreme Court in Satnam Overseas (Export) v. State of Haryana (supra) vide which the levy of purchase tax on the paddy upto 31-3-1991 was declared illegal. What the Legislature has done is to simply override the judgment of the Supreme Court without amending the scheme of the Haryana Sales Tax Act and deleting Section 9(1)(b) under which the Petitioners and other dealers engaged in the manufacture of rice were entitled to exemption form levy of tax on the purchase of paddy. Therefore, by applying the ratio of the judgments of the Supreme Court in Prithvi Cotton Mills Ltd. v. Broach Borough Municipality (supra); D. Cawasju and Co. v. State of Mysore (supra) and Municipal Corporation of the city of Ahmedabad v. New Shrock Spinning and Co. Ltd. (supra), we hold that the validation Clause contained in Haryana Act No. 4 of 2003 and Clause (f) of Haryana Act No. 4 of 2004 are ultra vires to the powers of the State legislature. 4. We do not see how in the light of what was effected by the amendment made in the year 2003, the view taken by the High court that the lacuna in the Act which had led to the decision in Satnam Overseas (supra) can be understood to have been rectified by the amendment so as to confer legitimacy to the same, can be faulted with. On the aforesaid basis, the High Court construed the amendment and the actions thereunder to be an attempt to overcome the decision of this Court in Satnam Overseas (supra). Having considered the ratio of the decision laid down in Satnam Overseas (supra), as discussed above, and the purport and effect of the 2003 Amendment we do not see the said view can be faulted.5. An attempt has been made by Ms. Pinky Anand, learned Additional Solicitor General to open up the issue once again by contending that the view taken in Satnam Overseas (supra) with regard to Section 6 of the Act and the interpretation of Section 2(p) was in the context of the provisions of Section 2(p) as it then existed which was subsequently amended by Amendment Act of 1991 (No. 4 of 1991) with effect from 27th May, 1971. It is further submitted by the learned ASG that Explanation (2) to Section 2(p) of the Act, on the basis of which the view of this Court in Satnam Overseas (supra) with regard to Section 6 were expressed in paragraph 28 of the report in Satnam Overseas (supra), was deleted by the amendment. It is therefore contended that Satnam Overseas (supra), would require a reconsideration.6. We do not find any substance in the said contention advance inasmuch as by the Amendment it is only the first Part of Section 2(p) which has been amended with effect from 27th May, 1971 leaving the Explanations untouched. That apart, the contention now advanced by the learned ASG in our considered view, ought to have been brought to the notice of the Court after the pronouncement of the decision in Satnam Overseas (supra). Instead, a conscious decision was made by the State in bringing the amendment of the Act in 2003 ostensibly to cure the defects pointed out in Satnam Overseas (supra) which result, however, did not materialize. Rather the amendments brought in had the effect of assuming the colour of an attempt to overcome the verdict rendered in Satnam Overseas (supra) which is not a permissible course of action for the legislature. | 0[ds]4. We do not see how in the light of what was effected by the amendment made in the year 2003, the view taken by the High court that the lacuna in the Act which had led to the decision in Satnam Overseas (supra) can be understood to have been rectified by the amendment so as to confer legitimacy to the same, can be faulted with. On the aforesaid basis, the High Court construed the amendment and the actions thereunder to be an attempt to overcome the decision of this Court in Satnam Overseas (supra). Having considered the ratio of the decision laid down in Satnam Overseas (supra), as discussed above, and the purport and effect of the 2003 Amendment we do not see the said view can be faulted6. We do not find any substance in the said contention advance inasmuch as by the Amendment it is only the first Part of Section 2(p) which has been amended with effect from 27th May, 1971 leaving the Explanations untouched. That apart, the contention now advanced by the learned ASG in our considered view, ought to have been brought to the notice of the Court after the pronouncement of the decision in Satnam Overseas (supra). Instead, a conscious decision was made by the State in bringing the amendment of the Act in 2003 ostensibly to cure the defects pointed out in Satnam Overseas (supra) which result, however, did not materialize. Rather the amendments brought in had the effect of assuming the colour of an attempt to overcome the verdict rendered in Satnam Overseas (supra) which is not a permissible course of action for the legislature. | 0 | 1,419 | 312 | ### 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:
exemption Section and as the rice from the paddy procured by the Respondent from within the State was to be exported, the benefit of exemption Under Section 9(1)(b) of the Act was held in favour of the Respondents.2. The Haryana General Sales Tax Act was amended in the year 2003 by Amendment Act No. 4 of 2003 (hereinafter referred to as "2003 Amendment"), inter alia, amending Section 6 of the Act making the provisions of Section 6 of the Act subject to Sections 15 and 27 thereof in place of the "other provisions of the Act", as contained earlier. Section 9 of the Act which was already omitted/deleted with effect from 1st April, 1991 remained untouched by the 2003 Amendment. As the amended provisions of the Act were relied upon to deny the benefit of refund to the Respondents for purchase tax paid for periods when Section 9 was in force, the matter was re-agitated before the High Court of Punjab and Haryana. By the impugned order, the High Court answered the issue in favour of the Respondents. Aggrieved, these appeals have been filed.3. The opinion rendered by the High Court in the impugned order succinctly sum up the issue in the following terms:In the light of the above, we shall now consider whether the sole purpose of the impugned amendments is to nullify the judgment of the Supreme Court in Satnam Overseas (Export) v. State of Haryana {supra) and, therefore, the same are ultra vires to the legislative power of the state. A bare reading of the two Amending Acts shows that by amending Section 6 of the Haryana Sales Tax Act, the State Legislature has made the provisions of that Section subject to Sections 15 and 27, whereas un-amended Section 6 was subject to other provisions of the Act. Section 9(1)(b) of the Haryana Sales Tax Act, which was deleted w.e.f. 1-4-1991, has not been erased from the statute book with retrospective effect. Notwithstanding this, by virtue of Clause (3) of Haryana Act No. 4 of 2003 and Clause (f) of Haryana Act No. 4 of 2004, attempt has been made to validate and legalise the levy of tax on purchase of paddy on or after 1-4-1981. The use of the expression "notwithstanding" anything to the contrary contained in judgment, decree or order of any court...." in the validation Clause contained in Haryana Act No. 4 of 2003 leaves no manner of doubt that the sole purpose of that Clause is to nullify the effect of the judgment of the Supreme Court in Satnam Overseas (Export) v. State of Haryana (supra) vide which the levy of purchase tax on the paddy upto 31-3-1991 was declared illegal. What the Legislature has done is to simply override the judgment of the Supreme Court without amending the scheme of the Haryana Sales Tax Act and deleting Section 9(1)(b) under which the Petitioners and other dealers engaged in the manufacture of rice were entitled to exemption form levy of tax on the purchase of paddy. Therefore, by applying the ratio of the judgments of the Supreme Court in Prithvi Cotton Mills Ltd. v. Broach Borough Municipality (supra); D. Cawasju and Co. v. State of Mysore (supra) and Municipal Corporation of the city of Ahmedabad v. New Shrock Spinning and Co. Ltd. (supra), we hold that the validation Clause contained in Haryana Act No. 4 of 2003 and Clause (f) of Haryana Act No. 4 of 2004 are ultra vires to the powers of the State legislature. 4. We do not see how in the light of what was effected by the amendment made in the year 2003, the view taken by the High court that the lacuna in the Act which had led to the decision in Satnam Overseas (supra) can be understood to have been rectified by the amendment so as to confer legitimacy to the same, can be faulted with. On the aforesaid basis, the High Court construed the amendment and the actions thereunder to be an attempt to overcome the decision of this Court in Satnam Overseas (supra). Having considered the ratio of the decision laid down in Satnam Overseas (supra), as discussed above, and the purport and effect of the 2003 Amendment we do not see the said view can be faulted.5. An attempt has been made by Ms. Pinky Anand, learned Additional Solicitor General to open up the issue once again by contending that the view taken in Satnam Overseas (supra) with regard to Section 6 of the Act and the interpretation of Section 2(p) was in the context of the provisions of Section 2(p) as it then existed which was subsequently amended by Amendment Act of 1991 (No. 4 of 1991) with effect from 27th May, 1971. It is further submitted by the learned ASG that Explanation (2) to Section 2(p) of the Act, on the basis of which the view of this Court in Satnam Overseas (supra) with regard to Section 6 were expressed in paragraph 28 of the report in Satnam Overseas (supra), was deleted by the amendment. It is therefore contended that Satnam Overseas (supra), would require a reconsideration.6. We do not find any substance in the said contention advance inasmuch as by the Amendment it is only the first Part of Section 2(p) which has been amended with effect from 27th May, 1971 leaving the Explanations untouched. That apart, the contention now advanced by the learned ASG in our considered view, ought to have been brought to the notice of the Court after the pronouncement of the decision in Satnam Overseas (supra). Instead, a conscious decision was made by the State in bringing the amendment of the Act in 2003 ostensibly to cure the defects pointed out in Satnam Overseas (supra) which result, however, did not materialize. Rather the amendments brought in had the effect of assuming the colour of an attempt to overcome the verdict rendered in Satnam Overseas (supra) which is not a permissible course of action for the legislature.
### Response:
0
### Explanation:
4. We do not see how in the light of what was effected by the amendment made in the year 2003, the view taken by the High court that the lacuna in the Act which had led to the decision in Satnam Overseas (supra) can be understood to have been rectified by the amendment so as to confer legitimacy to the same, can be faulted with. On the aforesaid basis, the High Court construed the amendment and the actions thereunder to be an attempt to overcome the decision of this Court in Satnam Overseas (supra). Having considered the ratio of the decision laid down in Satnam Overseas (supra), as discussed above, and the purport and effect of the 2003 Amendment we do not see the said view can be faulted6. We do not find any substance in the said contention advance inasmuch as by the Amendment it is only the first Part of Section 2(p) which has been amended with effect from 27th May, 1971 leaving the Explanations untouched. That apart, the contention now advanced by the learned ASG in our considered view, ought to have been brought to the notice of the Court after the pronouncement of the decision in Satnam Overseas (supra). Instead, a conscious decision was made by the State in bringing the amendment of the Act in 2003 ostensibly to cure the defects pointed out in Satnam Overseas (supra) which result, however, did not materialize. Rather the amendments brought in had the effect of assuming the colour of an attempt to overcome the verdict rendered in Satnam Overseas (supra) which is not a permissible course of action for the legislature.
|
The State of Tripura & Ors Vs. Smt. Anjana Bhattacharjee & Ors | findings are in paragraph 12 which reads as under: [12] We have thoroughly scrutinized the foundation as projected by the state-respondents by the passage from the additional counter affidavit, as reproduced above. We find from the condition laid down in the notification dated 02.02.2010 that out of the total financial requirement the Central Government shall bear 80% till 31.03.2010. The period mentioned in the Rule 3(3) of the said rules falls within the said coverage period and as such, what the State Government has projected that for the financial crunch they had been compelled to bring the said amendment in the said pension rules is wholly unacceptable and in contrast to Article 14 of the Constitution of India. The foundation i.e. the financial crunch has not satisfied us at all. Hence, we are of the view that the said Rule 3(3) of the Pension Rules being absolutely arbitrary is liable to be struck down. Accordingly, we strike down the Rule 3(3) of the Tripura State Civil Services (Revised Pension) Rules, 2009. The respondents No. 2, 3 & 4 are directed to pay the arrear pension for the period from 01.03.2007 to 31.12.2008 to the petitioner within a period of 3(three) months from today, else the said amount shall carry interest @6% per annum from 01.04.2010. 5.2 When specific statistics were provided before the High Court justifying its policy decision and the financial crunch/financial constraint was pleaded, there was no reason for the High Court to doubt the same. As such the findings recorded by the High Court in the impugned judgment and order is contrary to the averments made in affidavit filed on behalf of the State Government. From the affidavit filed before the High Court reproduced hereinabove, we are satisfied that a conscious policy decision was taken by the State Government to grant the benefit of revision of pension notionally from 01.01.2006 or from the date of superannuation till 31.12.2008 and to pay/grant the benefit of revision of pension actually from 01.01.2009, which was based on their financial crunch/financial constraint. 5.3 Whether the financial crunch/financial constraint due to additional financial burden can be a valid ground to fix a cut-off date for the purpose of granting the actual benefit of revision of pension/pay has been dealt with and/or considered by this Court in the case of Amar Nath Goyal (supra). In the aforesaid decision, it is observed and held by this Court that financial constraint can be a valid ground for fixation of cut-off date for grant of benefit of increased quantum of death-cum-retirement gratuity. In paragraphs 26, 32 and 33 of the said judgment, it is observed and held as under: - 26. It is difficult to accede to the argument on behalf of the employees that a decision of the Central Government/State Governments to limit the benefits only to employees, who retire or die on or after 1-4- 1995, after calculating the financial implications thereon, was either irrational or arbitrary. Financial and economic implications are very relevant and germane for any policy decision touching the administration of the Government, at the Centre or at the State level. xxx xxx xxx 32. The importance of considering financial implications, while providing benefits for employees, has been noted by this Court in numerous judgments including the following two cases. In State of Rajasthan v. Amrit Lal Gandhi [(1997) 2 SCC 342 : 1997 SCC (L&S) 512 : AIR 1997 SC 782 ] this Court went so as far as to note that: Financial impact of making the Regulations retrospective can be the sole consideration while fixing a cut-off date. In our opinion, it cannot be said that this cut-off date was fixed arbitrarily or without any reason. The High Court was clearly in error in allowing the writ petitions and substituting the date of 1-1- 1986 for 1-1-1990. [Ibid., at AIR p. 784, para 17 : SCC p. 348, para 17 (emphasis supplied).] 33. More recently, in Veerasamy [(1999) 3 SCC 414 : 1999 SCC (L&S) 717] this Court observed that, financial constraints could be a valid ground for introducing a cut-off date while implementing a pension scheme on a revised basis [ Supra fn 2 SCC at p. 421 (para 15).] . In that case, the pension scheme applied differently to persons who had retired from service before 1-7-1986, and those who were in employment on the said date. It was held that they could not be treated alike as they did not belong to one class and they formed separate classes. 5.4 In the aforesaid decision this Court after considering the earlier decisions of this Court in the cases of State of Punjab Vs. Boota Singh; (2000) 3 SCC 733 and State of Punjab Vs. J.L. Gupta; (2000) 3 SCC 736, it is specifically observed and held that for the grant of additional benefit, which had financial implications, the prescription of a specific future date for conferment of additional benefit, could not be considered arbitrary. 5.5 In the subsequent decision in Bihar Pensioners Samaj (supra), the decision in the case of Amar Nath Goyal (supra) is followed and it is observed and held that financial constraints could be a valid ground for introducing a cut-off date while introducing a pension scheme on revised basis. It is further observed and held by this Court in the aforesaid decision that fixing of a cut-off date for granting of benefits is well within the powers of the Government as long as the reasons therefor are not arbitrary and are based on some rational consideration. 6. While applying the law laid down by this Court in the aforesaid decisions to the facts of the case on hand, we are of the opinion that in the instant case before us, the cut-off date has been fixed as 01.01.2009 on a very valid ground i.e., financial constraint. Therefore, the High Court manifestly erred in striking down the Rule 3(3) of the Pension Rules, 2009 being arbitrary and violative of Article 14 of the Constitution. | 1[ds]4. Though served none has appeared on behalf of respondent No. 1, may be because pursuant to the earlier interim order passed by this Court, she has been paid the entire arrears of pension from the date of her retirement. It is required to be noted that the impugned judgment and order passed by the High Court has been stayed by this Court.5. We have heard learned counsel appearing on behalf of the State at length. We have gone through and considered the impugned judgment and order passed by the High Court. Before the High Court, Rule 3(3) of the Pension Rules, 2009 was under challenge, which is reproduced hereinabove. Rule 3(3) of the Pension Rules, 2009 has been struck down by the High Court by holding that the same is arbitrary and violative of Article 14 of the Constitution of India. Before the High Court, it was the specific case on behalf of the State that because of heavy financial burden and there being financial constraints, the State is not in a position to bear the heavy burden of additional revised pension and therefore, the State formulated a policy decision to the effect that the revised pension shall be paid from 01.01.2006 to 31.12.2008 notionally and actual revision of pension shall be disbursed from 01.01.2009 only. A detailed affidavit was filed on behalf of the State justifying the above policy decision providing/granting the revision of pay from 01.01.2009 only and to grant the benefit of revised pension notionally from 01.01.2006 or from the date of retirement till 31.12.2008.5.1 However, without giving any cogent reasons, the High Court has observed that the foundation i.e., the financial crunch has not satisfied the Court at all. Only reasoning or actual findings are in paragraph 12 which reads as under:[12] We have thoroughly scrutinized the foundation as projected by the state-respondents by the passage from the additional counter affidavit, as reproduced above. We find from the condition laid down in the notification dated 02.02.2010 that out of the total financial requirement the Central Government shall bear 80% till 31.03.2010. The period mentioned in the Rule 3(3) of the said rules falls within the said coverage period and as such, what the State Government has projected that for the financial crunch they had been compelled to bring the said amendment in the said pension rules is wholly unacceptable and in contrast to Article 14 of the Constitution of India. The foundation i.e. the financial crunch has not satisfied us at all. Hence, we are of the view that the said Rule 3(3) of the Pension Rules being absolutely arbitrary is liable to be struck down. Accordingly, we strike down the Rule 3(3) of the Tripura State Civil Services (Revised Pension) Rules, 2009. The respondents No. 2, 3 & 4 are directed to pay the arrear pension for the period from 01.03.2007 to 31.12.2008 to the petitioner within a period of 3(three) months from today, else the said amount shall carry interest @6% per annum from 01.04.2010.5.2 When specific statistics were provided before the High Court justifying its policy decision and the financial crunch/financial constraint was pleaded, there was no reason for the High Court to doubt the same. As such the findings recorded by the High Court in the impugned judgment and order is contrary to the averments made in affidavit filed on behalf of the State Government. From the affidavit filed before the High Court reproduced hereinabove, we are satisfied that a conscious policy decision was taken by the State Government to grant the benefit of revision of pension notionally from 01.01.2006 or from the date of superannuation till 31.12.2008 and to pay/grant the benefit of revision of pension actually from 01.01.2009, which was based on their financial crunch/financial constraint.5.3 Whether the financial crunch/financial constraint due to additional financial burden can be a valid ground to fix a cut-off date for the purpose of granting the actual benefit of revision of pension/pay has been dealt with and/or considered by this Court in the case of Amar Nath Goyal (supra). In the aforesaid decision, it is observed and held by this Court that financial constraint can be a valid ground for fixation of cut-off date for grant of benefit of increased quantum of death-cum-retirement gratuity. In paragraphs 26, 32 and 33 of the said judgment, it is observed and held as under: -26. It is difficult to accede to the argument on behalf of the employees that a decision of the Central Government/State Governments to limit the benefits only to employees, who retire or die on or after 1-4- 1995, after calculating the financial implications thereon, was either irrational or arbitrary. Financial and economic implications are very relevant and germane for any policy decision touching the administration of the Government, at the Centre or at the State level.xxx xxx xxx32. The importance of considering financial implications, while providing benefits for employees, has been noted by this Court in numerous judgments including the following two cases. In State of Rajasthan v. Amrit Lal Gandhi [(1997) 2 SCC 342 : 1997 SCC (L&S) 512 : AIR 1997 SC 782 ] this Court went so as far as to note that:Financial impact of making the Regulations retrospective can be the sole consideration while fixing a cut-off date. In our opinion, it cannot be said that this cut-off date was fixed arbitrarily or without any reason. The High Court was clearly in error in allowing the writ petitions and substituting the date of 1-1- 1986 for 1-1-1990. [Ibid., at AIR p. 784, para 17 : SCC p. 348, para 17 (emphasis supplied).]33. More recently, in Veerasamy [(1999) 3 SCC 414 : 1999 SCC (L&S) 717] this Court observed that, financial constraints could be a valid ground for introducing a cut-off date while implementing a pension scheme on a revised basis [ Supra fn 2 SCC at p. 421 (para 15).] . In that case, the pension scheme applied differently to persons who had retired from service before 1-7-1986, and those who were in employment on the said date. It was held that they could not be treated alike as they did not belong to one class and they formed separate classes.5.4 In the aforesaid decision this Court after considering the earlier decisions of this Court in the cases of State of Punjab Vs. Boota Singh; (2000) 3 SCC 733 and State of Punjab Vs. J.L. Gupta; (2000) 3 SCC 736, it is specifically observed and held that for the grant of additional benefit, which had financial implications, the prescription of a specific future date for conferment of additional benefit, could not be considered arbitrary.5.5 In the subsequent decision in Bihar Pensioners Samaj (supra), the decision in the case of Amar Nath Goyal (supra) is followed and it is observed and held that financial constraints could be a valid ground for introducing a cut-off date while introducing a pension scheme on revised basis. It is further observed and held by this Court in the aforesaid decision that fixing of a cut-off date for granting of benefits is well within the powers of the Government as long as the reasons therefor are not arbitrary and are based on some rational consideration.6. While applying the law laid down by this Court in the aforesaid decisions to the facts of the case on hand, we are of the opinion that in the instant case before us, the cut-off date has been fixed as 01.01.2009 on a very valid ground i.e., financial constraint. Therefore, the High Court manifestly erred in striking down the Rule 3(3) of the Pension Rules, 2009 being arbitrary and violative of Article 14 of the Constitution. | 1 | 3,506 | 1,437 | ### 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:
findings are in paragraph 12 which reads as under: [12] We have thoroughly scrutinized the foundation as projected by the state-respondents by the passage from the additional counter affidavit, as reproduced above. We find from the condition laid down in the notification dated 02.02.2010 that out of the total financial requirement the Central Government shall bear 80% till 31.03.2010. The period mentioned in the Rule 3(3) of the said rules falls within the said coverage period and as such, what the State Government has projected that for the financial crunch they had been compelled to bring the said amendment in the said pension rules is wholly unacceptable and in contrast to Article 14 of the Constitution of India. The foundation i.e. the financial crunch has not satisfied us at all. Hence, we are of the view that the said Rule 3(3) of the Pension Rules being absolutely arbitrary is liable to be struck down. Accordingly, we strike down the Rule 3(3) of the Tripura State Civil Services (Revised Pension) Rules, 2009. The respondents No. 2, 3 & 4 are directed to pay the arrear pension for the period from 01.03.2007 to 31.12.2008 to the petitioner within a period of 3(three) months from today, else the said amount shall carry interest @6% per annum from 01.04.2010. 5.2 When specific statistics were provided before the High Court justifying its policy decision and the financial crunch/financial constraint was pleaded, there was no reason for the High Court to doubt the same. As such the findings recorded by the High Court in the impugned judgment and order is contrary to the averments made in affidavit filed on behalf of the State Government. From the affidavit filed before the High Court reproduced hereinabove, we are satisfied that a conscious policy decision was taken by the State Government to grant the benefit of revision of pension notionally from 01.01.2006 or from the date of superannuation till 31.12.2008 and to pay/grant the benefit of revision of pension actually from 01.01.2009, which was based on their financial crunch/financial constraint. 5.3 Whether the financial crunch/financial constraint due to additional financial burden can be a valid ground to fix a cut-off date for the purpose of granting the actual benefit of revision of pension/pay has been dealt with and/or considered by this Court in the case of Amar Nath Goyal (supra). In the aforesaid decision, it is observed and held by this Court that financial constraint can be a valid ground for fixation of cut-off date for grant of benefit of increased quantum of death-cum-retirement gratuity. In paragraphs 26, 32 and 33 of the said judgment, it is observed and held as under: - 26. It is difficult to accede to the argument on behalf of the employees that a decision of the Central Government/State Governments to limit the benefits only to employees, who retire or die on or after 1-4- 1995, after calculating the financial implications thereon, was either irrational or arbitrary. Financial and economic implications are very relevant and germane for any policy decision touching the administration of the Government, at the Centre or at the State level. xxx xxx xxx 32. The importance of considering financial implications, while providing benefits for employees, has been noted by this Court in numerous judgments including the following two cases. In State of Rajasthan v. Amrit Lal Gandhi [(1997) 2 SCC 342 : 1997 SCC (L&S) 512 : AIR 1997 SC 782 ] this Court went so as far as to note that: Financial impact of making the Regulations retrospective can be the sole consideration while fixing a cut-off date. In our opinion, it cannot be said that this cut-off date was fixed arbitrarily or without any reason. The High Court was clearly in error in allowing the writ petitions and substituting the date of 1-1- 1986 for 1-1-1990. [Ibid., at AIR p. 784, para 17 : SCC p. 348, para 17 (emphasis supplied).] 33. More recently, in Veerasamy [(1999) 3 SCC 414 : 1999 SCC (L&S) 717] this Court observed that, financial constraints could be a valid ground for introducing a cut-off date while implementing a pension scheme on a revised basis [ Supra fn 2 SCC at p. 421 (para 15).] . In that case, the pension scheme applied differently to persons who had retired from service before 1-7-1986, and those who were in employment on the said date. It was held that they could not be treated alike as they did not belong to one class and they formed separate classes. 5.4 In the aforesaid decision this Court after considering the earlier decisions of this Court in the cases of State of Punjab Vs. Boota Singh; (2000) 3 SCC 733 and State of Punjab Vs. J.L. Gupta; (2000) 3 SCC 736, it is specifically observed and held that for the grant of additional benefit, which had financial implications, the prescription of a specific future date for conferment of additional benefit, could not be considered arbitrary. 5.5 In the subsequent decision in Bihar Pensioners Samaj (supra), the decision in the case of Amar Nath Goyal (supra) is followed and it is observed and held that financial constraints could be a valid ground for introducing a cut-off date while introducing a pension scheme on revised basis. It is further observed and held by this Court in the aforesaid decision that fixing of a cut-off date for granting of benefits is well within the powers of the Government as long as the reasons therefor are not arbitrary and are based on some rational consideration. 6. While applying the law laid down by this Court in the aforesaid decisions to the facts of the case on hand, we are of the opinion that in the instant case before us, the cut-off date has been fixed as 01.01.2009 on a very valid ground i.e., financial constraint. Therefore, the High Court manifestly erred in striking down the Rule 3(3) of the Pension Rules, 2009 being arbitrary and violative of Article 14 of the Constitution.
### Response:
1
### Explanation:
Court at all. Only reasoning or actual findings are in paragraph 12 which reads as under:[12] We have thoroughly scrutinized the foundation as projected by the state-respondents by the passage from the additional counter affidavit, as reproduced above. We find from the condition laid down in the notification dated 02.02.2010 that out of the total financial requirement the Central Government shall bear 80% till 31.03.2010. The period mentioned in the Rule 3(3) of the said rules falls within the said coverage period and as such, what the State Government has projected that for the financial crunch they had been compelled to bring the said amendment in the said pension rules is wholly unacceptable and in contrast to Article 14 of the Constitution of India. The foundation i.e. the financial crunch has not satisfied us at all. Hence, we are of the view that the said Rule 3(3) of the Pension Rules being absolutely arbitrary is liable to be struck down. Accordingly, we strike down the Rule 3(3) of the Tripura State Civil Services (Revised Pension) Rules, 2009. The respondents No. 2, 3 & 4 are directed to pay the arrear pension for the period from 01.03.2007 to 31.12.2008 to the petitioner within a period of 3(three) months from today, else the said amount shall carry interest @6% per annum from 01.04.2010.5.2 When specific statistics were provided before the High Court justifying its policy decision and the financial crunch/financial constraint was pleaded, there was no reason for the High Court to doubt the same. As such the findings recorded by the High Court in the impugned judgment and order is contrary to the averments made in affidavit filed on behalf of the State Government. From the affidavit filed before the High Court reproduced hereinabove, we are satisfied that a conscious policy decision was taken by the State Government to grant the benefit of revision of pension notionally from 01.01.2006 or from the date of superannuation till 31.12.2008 and to pay/grant the benefit of revision of pension actually from 01.01.2009, which was based on their financial crunch/financial constraint.5.3 Whether the financial crunch/financial constraint due to additional financial burden can be a valid ground to fix a cut-off date for the purpose of granting the actual benefit of revision of pension/pay has been dealt with and/or considered by this Court in the case of Amar Nath Goyal (supra). In the aforesaid decision, it is observed and held by this Court that financial constraint can be a valid ground for fixation of cut-off date for grant of benefit of increased quantum of death-cum-retirement gratuity. In paragraphs 26, 32 and 33 of the said judgment, it is observed and held as under: -26. It is difficult to accede to the argument on behalf of the employees that a decision of the Central Government/State Governments to limit the benefits only to employees, who retire or die on or after 1-4- 1995, after calculating the financial implications thereon, was either irrational or arbitrary. Financial and economic implications are very relevant and germane for any policy decision touching the administration of the Government, at the Centre or at the State level.xxx xxx xxx32. The importance of considering financial implications, while providing benefits for employees, has been noted by this Court in numerous judgments including the following two cases. In State of Rajasthan v. Amrit Lal Gandhi [(1997) 2 SCC 342 : 1997 SCC (L&S) 512 : AIR 1997 SC 782 ] this Court went so as far as to note that:Financial impact of making the Regulations retrospective can be the sole consideration while fixing a cut-off date. In our opinion, it cannot be said that this cut-off date was fixed arbitrarily or without any reason. The High Court was clearly in error in allowing the writ petitions and substituting the date of 1-1- 1986 for 1-1-1990. [Ibid., at AIR p. 784, para 17 : SCC p. 348, para 17 (emphasis supplied).]33. More recently, in Veerasamy [(1999) 3 SCC 414 : 1999 SCC (L&S) 717] this Court observed that, financial constraints could be a valid ground for introducing a cut-off date while implementing a pension scheme on a revised basis [ Supra fn 2 SCC at p. 421 (para 15).] . In that case, the pension scheme applied differently to persons who had retired from service before 1-7-1986, and those who were in employment on the said date. It was held that they could not be treated alike as they did not belong to one class and they formed separate classes.5.4 In the aforesaid decision this Court after considering the earlier decisions of this Court in the cases of State of Punjab Vs. Boota Singh; (2000) 3 SCC 733 and State of Punjab Vs. J.L. Gupta; (2000) 3 SCC 736, it is specifically observed and held that for the grant of additional benefit, which had financial implications, the prescription of a specific future date for conferment of additional benefit, could not be considered arbitrary.5.5 In the subsequent decision in Bihar Pensioners Samaj (supra), the decision in the case of Amar Nath Goyal (supra) is followed and it is observed and held that financial constraints could be a valid ground for introducing a cut-off date while introducing a pension scheme on revised basis. It is further observed and held by this Court in the aforesaid decision that fixing of a cut-off date for granting of benefits is well within the powers of the Government as long as the reasons therefor are not arbitrary and are based on some rational consideration.6. While applying the law laid down by this Court in the aforesaid decisions to the facts of the case on hand, we are of the opinion that in the instant case before us, the cut-off date has been fixed as 01.01.2009 on a very valid ground i.e., financial constraint. Therefore, the High Court manifestly erred in striking down the Rule 3(3) of the Pension Rules, 2009 being arbitrary and violative of Article 14 of the Constitution.
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Commissioner of Wealth Tax, Kanpur Vs. Messrs J.K. Cotton Manufacturers Limited | that they had made secret profits which were kept out of the books of ac counts and it is also true that no explanation was forthcoming from the assessee companies as to what became of such secret profits but the question is whether from such absence of explanation any presumption can be raised that such secret profits were still retained by them on the valuation date in the circumstances of the case ? In the first place the analogy of the rule applicable in income-tax cases would be inapplicable in wealth-tax cases inasmuch as in the former case the unexplained cash credit item is regarded as income of the assessee from undisclosed source having accrued to him during the accounting year while in the latter case only the valuation date is relevant on which date the assets (secret pro fits) must be held by the assessee and it will not do that such asset was held by him some time during the concerned year. Secondly, after a lapse of sufficiently long period no presumption can be raised that a secret profit earned some time during the concerned year has continued to be held by the assessee on the valuation date. In the instant case the secret profits admittedly earned by the assessee companies related to assessment years prior to September, 1948 (as proceedings under Taxation on Income (Investigation Commission) Act 1947 could be taken only in respect of assessment years prior to 1.9. 1948) and the tax liability in respect thereof was determined in 1952 but we are concerned with the valuation dates 30.6. 1956 and 31.12.1956 and, therefore, the presumption as suggested by the counsel cannot be drawn against the assessee companies after a lapse of 8 long years. In Annamma Paul Perincherry v. Commissioner of Wealth-Tax, Keral a(1) and Commissioner of Wealth-Tax. Kanpur v. J.K. Jute Mills Co. Ltd(2)., the Kerala High Court as well as the Allahabad High Court have taken a similar view that no such presumption can be raised after a lapse of sufficiently long period and we approve of the said view. In any case, as stated above, the deducibility of the two tax liabilities in question does not depend upon whether the assets, in respect whereof such liability has been determined, are available or not while aggregating the assets of the assessee companies. The contention of the counsel for revenue, therefore, must fail.Coming to the second contention the question is whether the deductions claimed fall within the exclusionary part of sec. 2(m) (iii) of the Act, that is whether the two sums of tax liabilities were outstanding for more than 12 months on the respective valuation dates ? According to counsel the expression "outstanding" means remaining unpaid after becoming due and since the liability to pay income-tax for any assessment year crystalises on the last day of the previous year and becomes payable for that assessment year even before it gets quantified, the two tax liabilities in question which pertained to assessment years prior to 1948, must be regarded as having become due by the last day of the concerned previous years and since these were not cleared soon thereafter these were outstanding since at least 1948 and thus became disallowable. In the alternative counsel urged that if payability is made to depend upon the date of an order passed quantifying the same then at least in 1952 these became payable when the order of the Investigation Commission was passed and more than 12 months had passed since then. Counsel urged that granting of installments under the settlement merely amounted to showing some concessions to the assessee-companies and did not affect the payability in 1952 of the arrears of tax. In our view, there is no force in any of these submissions made by counsel. The aspect that the liability to pay income-tax for any assessment year crystalises on the last day of the previous year and, therefore, becomes payable on the expiry of the last day irrespective of quantification of the dues would be irrelevant having regard to the express language of sec. 2 (m) (iii). Sub-cl.(iii) requires that the tax liability must be one which is "payable in consequence of any order passed" under any law relating to taxation on income or profits, etc. such liability so payable under an order passed must remain "outstanding for a period of more than 12 months on the valuation date." The alternative submission that the tax liabilities in the instant case must be taken to have become payable in 1952 under the Investigation Commissions order and must be regarded as having remained outstanding since 1952 is equally of no avail for the payability of the dues must depend upon the terms of the Commissions order and admittedly a scheme for payment of the dues by installments was provided in the order and each installment would become payable on the date on which it is directed to be paid. In our view, the expression outstanding in sec. 2 (m) (i ii) (a) and (b) will have to be construed in the background of the phrase "amount of tax...... payable in consequence of an order" and in that context it must mean remaining unpaid after the obligation to pay is incurred. We are informed that similar construction has been placed on the expression outstanding occurring in sec. 2 (m) (iii) of the Act by the Calcutta High Court in Commissioner of Wealth-tax, West Bengal III v. Banarshi Prasad Kedia(1) and by the Allahabad High Court in Commissioner of Wealth-Tax, U.P., and Others v. Padampat Singhania(2) and we affirm the same. In the instant case it was an admitted position before the Tribunal that under the scheme of installments sanctioned in the settlements the two sums, in respect where of deductions were claimed, had not become due for payment before the valuation dates. It is therefore, clear that the deductions claimed do not fall within the exclusionary part contained in sec. 2 (m) (iii) of the Act. | 0[ds]In the first place the analogy of the rule applicable in income-tax cases would be inapplicable in wealth-tax cases inasmuch as in the former case the unexplained cash credit item is regarded as income of the assessee from undisclosed source having accrued to him during the accounting year while in the latter case only the valuation date is relevant on which date the assets (secret pro fits) must be held by the assessee and it will not do that such asset was held by him some time during the concerned year. Secondly, after a lapse of sufficiently long period no presumption can be raised that a secret profit earned some time during the concerned year has continued to be held by the assessee on the valuation date. In the instant case the secret profits admittedly earned by the assessee companies related to assessment years prior to September, 1948 (as proceedings under Taxation on Income (Investigation Commission) Act 1947 could be taken only in respect of assessment years prior to 1.9. 1948) and the tax liability in respect thereof was determined in 1952 but we are concerned with the valuation dates 30.6. 1956 and 31.12.1956 and, therefore, the presumption as suggested by the counsel cannot be drawn against the assessee companies after a lapse of 8 long years. In Annamma Paul Perincherry v. Commissioner of Wealth-Tax, Keral a(1) and Commissioner of Wealth-Tax. Kanpur v. J.K. Jute Mills Co. Ltd(2)., the Kerala High Court as well as the Allahabad High Court have taken a similar view that no such presumption can be raised after a lapse of sufficiently long period and we approve of the said view. In any case, as stated above, the deducibility of the two tax liabilities in question does not depend upon whether the assets, in respect whereof such liability has been determined, are available or not while aggregating the assets of the assessee companies. The contention of the counsel for revenue, therefore, must fail.Coming to the second contention the question is whether the deductions claimed fall within the exclusionary part of sec. 2(m) (iii) of the Act, that is whether the two sums of tax liabilities were outstanding for more than 12 months on the respective valuation dates ? According to counsel the expression "outstanding" means remaining unpaid after becoming due and since the liability to pay income-tax for any assessment year crystalises on the last day of the previous year and becomes payable for that assessment year even before it gets quantified, the two tax liabilities in question which pertained to assessment years prior to 1948, must be regarded as having become due by the last day of the concerned previous years and since these were not cleared soon thereafter these were outstanding since at least 1948 and thus became disallowable. In the alternative counsel urged that if payability is made to depend upon the date of an order passed quantifying the same then at least in 1952 these became payable when the order of the Investigation Commission was passed and more than 12 months had passed since then. Counsel urged that granting of installments under the settlement merely amounted to showing some concessions to the assessee-companies and did not affect the payability in 1952 of the arrears of tax. In our view, there is no force in any of these submissions made by counsel. The aspect that the liability to pay income-tax for any assessment year crystalises on the last day of the previous year and, therefore, becomes payable on the expiry of the last day irrespective of quantification of the dues would be irrelevant having regard to the express language of sec. 2 (m) (iii). Sub-cl.(iii) requires that the tax liability must be one which is "payable in consequence of any order passed" under any law relating to taxation on income or profits, etc. such liability so payable under an order passed must remain "outstanding for a period of more than 12 months on the valuation date." The alternative submission that the tax liabilities in the instant case must be taken to have become payable in 1952 under the Investigation Commissions order and must be regarded as having remained outstanding since 1952 is equally of no avail for the payability of the dues must depend upon the terms of the Commissions order and admittedly a scheme for payment of the dues by installments was provided in the order and each installment would become payable on the date on which it is directed to be paid. In our view, the expression outstanding in sec. 2 (m) (i ii) (a) and (b) will have to be construed in the background of the phrase "amount of tax...... payable in consequence of an order" and in that context it must mean remaining unpaid after the obligation to pay is incurred. We are informed that similar construction has been placed on the expression outstanding occurring in sec. 2 (m) (iii) of the Act by the Calcutta High Court in Commissioner of Wealth-tax, West Bengal III v. Banarshi Prasad Kedia(1) and by the Allahabad High Court in Commissioner of Wealth-Tax, U.P., and Others v. Padampat Singhania(2) and we affirm the same. In the instant case it was an admitted position before the Tribunal that under the scheme of installments sanctioned in the settlements the two sums, in respect where of deductions were claimed, had not become due for payment before the valuation dates. It is therefore, clear that the deductions claimed do not fall within the exclusionary part contained in sec. 2 (m) (iii) of the Act. | 0 | 4,663 | 1,041 | ### Instruction:
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that they had made secret profits which were kept out of the books of ac counts and it is also true that no explanation was forthcoming from the assessee companies as to what became of such secret profits but the question is whether from such absence of explanation any presumption can be raised that such secret profits were still retained by them on the valuation date in the circumstances of the case ? In the first place the analogy of the rule applicable in income-tax cases would be inapplicable in wealth-tax cases inasmuch as in the former case the unexplained cash credit item is regarded as income of the assessee from undisclosed source having accrued to him during the accounting year while in the latter case only the valuation date is relevant on which date the assets (secret pro fits) must be held by the assessee and it will not do that such asset was held by him some time during the concerned year. Secondly, after a lapse of sufficiently long period no presumption can be raised that a secret profit earned some time during the concerned year has continued to be held by the assessee on the valuation date. In the instant case the secret profits admittedly earned by the assessee companies related to assessment years prior to September, 1948 (as proceedings under Taxation on Income (Investigation Commission) Act 1947 could be taken only in respect of assessment years prior to 1.9. 1948) and the tax liability in respect thereof was determined in 1952 but we are concerned with the valuation dates 30.6. 1956 and 31.12.1956 and, therefore, the presumption as suggested by the counsel cannot be drawn against the assessee companies after a lapse of 8 long years. In Annamma Paul Perincherry v. Commissioner of Wealth-Tax, Keral a(1) and Commissioner of Wealth-Tax. Kanpur v. J.K. Jute Mills Co. Ltd(2)., the Kerala High Court as well as the Allahabad High Court have taken a similar view that no such presumption can be raised after a lapse of sufficiently long period and we approve of the said view. In any case, as stated above, the deducibility of the two tax liabilities in question does not depend upon whether the assets, in respect whereof such liability has been determined, are available or not while aggregating the assets of the assessee companies. The contention of the counsel for revenue, therefore, must fail.Coming to the second contention the question is whether the deductions claimed fall within the exclusionary part of sec. 2(m) (iii) of the Act, that is whether the two sums of tax liabilities were outstanding for more than 12 months on the respective valuation dates ? According to counsel the expression "outstanding" means remaining unpaid after becoming due and since the liability to pay income-tax for any assessment year crystalises on the last day of the previous year and becomes payable for that assessment year even before it gets quantified, the two tax liabilities in question which pertained to assessment years prior to 1948, must be regarded as having become due by the last day of the concerned previous years and since these were not cleared soon thereafter these were outstanding since at least 1948 and thus became disallowable. In the alternative counsel urged that if payability is made to depend upon the date of an order passed quantifying the same then at least in 1952 these became payable when the order of the Investigation Commission was passed and more than 12 months had passed since then. Counsel urged that granting of installments under the settlement merely amounted to showing some concessions to the assessee-companies and did not affect the payability in 1952 of the arrears of tax. In our view, there is no force in any of these submissions made by counsel. The aspect that the liability to pay income-tax for any assessment year crystalises on the last day of the previous year and, therefore, becomes payable on the expiry of the last day irrespective of quantification of the dues would be irrelevant having regard to the express language of sec. 2 (m) (iii). Sub-cl.(iii) requires that the tax liability must be one which is "payable in consequence of any order passed" under any law relating to taxation on income or profits, etc. such liability so payable under an order passed must remain "outstanding for a period of more than 12 months on the valuation date." The alternative submission that the tax liabilities in the instant case must be taken to have become payable in 1952 under the Investigation Commissions order and must be regarded as having remained outstanding since 1952 is equally of no avail for the payability of the dues must depend upon the terms of the Commissions order and admittedly a scheme for payment of the dues by installments was provided in the order and each installment would become payable on the date on which it is directed to be paid. In our view, the expression outstanding in sec. 2 (m) (i ii) (a) and (b) will have to be construed in the background of the phrase "amount of tax...... payable in consequence of an order" and in that context it must mean remaining unpaid after the obligation to pay is incurred. We are informed that similar construction has been placed on the expression outstanding occurring in sec. 2 (m) (iii) of the Act by the Calcutta High Court in Commissioner of Wealth-tax, West Bengal III v. Banarshi Prasad Kedia(1) and by the Allahabad High Court in Commissioner of Wealth-Tax, U.P., and Others v. Padampat Singhania(2) and we affirm the same. In the instant case it was an admitted position before the Tribunal that under the scheme of installments sanctioned in the settlements the two sums, in respect where of deductions were claimed, had not become due for payment before the valuation dates. It is therefore, clear that the deductions claimed do not fall within the exclusionary part contained in sec. 2 (m) (iii) of the Act.
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In the first place the analogy of the rule applicable in income-tax cases would be inapplicable in wealth-tax cases inasmuch as in the former case the unexplained cash credit item is regarded as income of the assessee from undisclosed source having accrued to him during the accounting year while in the latter case only the valuation date is relevant on which date the assets (secret pro fits) must be held by the assessee and it will not do that such asset was held by him some time during the concerned year. Secondly, after a lapse of sufficiently long period no presumption can be raised that a secret profit earned some time during the concerned year has continued to be held by the assessee on the valuation date. In the instant case the secret profits admittedly earned by the assessee companies related to assessment years prior to September, 1948 (as proceedings under Taxation on Income (Investigation Commission) Act 1947 could be taken only in respect of assessment years prior to 1.9. 1948) and the tax liability in respect thereof was determined in 1952 but we are concerned with the valuation dates 30.6. 1956 and 31.12.1956 and, therefore, the presumption as suggested by the counsel cannot be drawn against the assessee companies after a lapse of 8 long years. In Annamma Paul Perincherry v. Commissioner of Wealth-Tax, Keral a(1) and Commissioner of Wealth-Tax. Kanpur v. J.K. Jute Mills Co. Ltd(2)., the Kerala High Court as well as the Allahabad High Court have taken a similar view that no such presumption can be raised after a lapse of sufficiently long period and we approve of the said view. In any case, as stated above, the deducibility of the two tax liabilities in question does not depend upon whether the assets, in respect whereof such liability has been determined, are available or not while aggregating the assets of the assessee companies. The contention of the counsel for revenue, therefore, must fail.Coming to the second contention the question is whether the deductions claimed fall within the exclusionary part of sec. 2(m) (iii) of the Act, that is whether the two sums of tax liabilities were outstanding for more than 12 months on the respective valuation dates ? According to counsel the expression "outstanding" means remaining unpaid after becoming due and since the liability to pay income-tax for any assessment year crystalises on the last day of the previous year and becomes payable for that assessment year even before it gets quantified, the two tax liabilities in question which pertained to assessment years prior to 1948, must be regarded as having become due by the last day of the concerned previous years and since these were not cleared soon thereafter these were outstanding since at least 1948 and thus became disallowable. In the alternative counsel urged that if payability is made to depend upon the date of an order passed quantifying the same then at least in 1952 these became payable when the order of the Investigation Commission was passed and more than 12 months had passed since then. Counsel urged that granting of installments under the settlement merely amounted to showing some concessions to the assessee-companies and did not affect the payability in 1952 of the arrears of tax. In our view, there is no force in any of these submissions made by counsel. The aspect that the liability to pay income-tax for any assessment year crystalises on the last day of the previous year and, therefore, becomes payable on the expiry of the last day irrespective of quantification of the dues would be irrelevant having regard to the express language of sec. 2 (m) (iii). Sub-cl.(iii) requires that the tax liability must be one which is "payable in consequence of any order passed" under any law relating to taxation on income or profits, etc. such liability so payable under an order passed must remain "outstanding for a period of more than 12 months on the valuation date." The alternative submission that the tax liabilities in the instant case must be taken to have become payable in 1952 under the Investigation Commissions order and must be regarded as having remained outstanding since 1952 is equally of no avail for the payability of the dues must depend upon the terms of the Commissions order and admittedly a scheme for payment of the dues by installments was provided in the order and each installment would become payable on the date on which it is directed to be paid. In our view, the expression outstanding in sec. 2 (m) (i ii) (a) and (b) will have to be construed in the background of the phrase "amount of tax...... payable in consequence of an order" and in that context it must mean remaining unpaid after the obligation to pay is incurred. We are informed that similar construction has been placed on the expression outstanding occurring in sec. 2 (m) (iii) of the Act by the Calcutta High Court in Commissioner of Wealth-tax, West Bengal III v. Banarshi Prasad Kedia(1) and by the Allahabad High Court in Commissioner of Wealth-Tax, U.P., and Others v. Padampat Singhania(2) and we affirm the same. In the instant case it was an admitted position before the Tribunal that under the scheme of installments sanctioned in the settlements the two sums, in respect where of deductions were claimed, had not become due for payment before the valuation dates. It is therefore, clear that the deductions claimed do not fall within the exclusionary part contained in sec. 2 (m) (iii) of the Act.
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R. Abdul Quader And Co Vs. Sales Tax Officer, Hyderabad | time shall on a conviction by a Magistrate be liable to fine. It is remarkable that this provision makes the persons punishable for his failure to pay the amount which is not authorised as a tax at all under the law, to Government. It does not provide for a penalty for collecting the amount wrongly by way of tax from purchasers which may have been justified as a penalty for the purpose of carrying out the objects of the taxing legislation. If a dealer has collected anything from a purchaser which is not authorised by the taxing law, that is a matter between him and the purchaser, and the purchaser may be entitled to recover the amount from the dealer. But unless the money so collected is due as a tax, the State cannot by law make it recoverable simply because it has been wrongly collected by the dealer. This cannot be done directly for it is not a tax at all within the meaning of Entry 54 of List II nor can the State legislature under the guise of incidental or ancillary power do indirectly what it cannot do directly. We are therefore of opinion that S. 11 (2) is not within the competence of the State legislature under Entry 54 of List II.6. The respondent in this connection relies on the decision of this Court in Orient Paper Mills Ltd. v. State of Orissa. (1962) 1 SCR 549 : (AIR 1961 SC 1438 ). That case in our opinion has no application to the facts of the present case. In that case the dealer had been assessed to tax and had paid the tax. Later in view of the judgment of this Court in State of Bombay v. United Motors (India) Ltd., 1953 SCR 1069 : (AIR 1953 SC 252 ) the amounts paid in respect of goods despatched for consumption outside the State were held to be not taxable. The dealer then applied for refund of tax, which was held to be not exigible. The refund was refused and the dealer went to the High Court by a writ petition claiming that it was entitled to refund under S. 14 of the Orissa Sales tax Act (which was the law under consideration in that case). The High Court allowed the petition in part and there were appeals to this Court both by the dealer and the State. In the meantime, the Orissa legislature amended the law, by introducing S. 14A. in the principal Act, which provided that refund could be claimed only by a person from whom the dealer had actually realised the amount as tax. That provision was challenged in this Court but was upheld on the ground that it came within the incidental power arising out of Entry 54 of List II. That matter dealt with a question of refund and it cannot be doubted that refund of the tax collected is always a matter covered by incidental and ancillary powers relating to the levy and collection of tax. We are not dealing with a case of refund in the present case. What S. 11(2) provides is that something collected by way of tax, though it is not really due as a tax under the law enacted under Entry 54 of List II must be paid to the Government. This situation in our opinion is entirely different from the situation in the Orient Paper Mills Limiteds case, (1962) 1 SCR 549 : (AIR 1961 SC 1438 ).7. The respondent further relies on a decision of the Madras High Court in Indian Aluminium Co. Ltd., Calcutta v. State of Madras, 1962-13 STC 967 : (AIR 1963 Mad 116 ). That decision was with respect to S. 8-B of the Madras General Sales Tax Act of 1939 as amended by Madras Act 1 of 1957. Though the words in S. 8-B (2) were not exactly the same as the words in S. 11 (2), with which we are concerned here, the provision in substance was to the same effect as S. 11 (2). In view of what we have said above, that decision must be held to be incorrect.8. Lastly, we come to the contention of the respondent that S. 11 (2) is within the legislative competence of the State legislature in view of Entry 26 of List II. They entry deals with "trade and commerce within the state subject to the provisions of Entry 33 of List III. It is well settled that taxing entries in the legislative Lists I and II of the Seventh Schedule are entirely separate from other entries. Entry 26 of List II deals with trade and commerce and has nothing to do with taxing or recovering amounts realised wrongly as tax. It is said that S. 11 (2) regulates trade and commerce and the State legislature therefore was competent under Entry 26 of List II to enact it. We have not been able to understand what such a provision has to do with the regulation of trade and commerce; it can only be justified as a provision ancillary to a taxing statute. If it cannot be so justified-as we hold that it cannot-we are unable to uphold it as regulating trade and commerce under Entry 26 of List II. There is in our opinion no element of regulation of trade and commerce in a provision like S. 11(2).9. We are therefore of opinion that the State legislature was incompetent to enact a provision like S. 11 (2). We may also add that the provision contained in S. 20(c), being consequential to S. 11 (2) will fall along with it. In consequence it was not open to the Sales Tax Officer to ask the appellant to make over what he had collected from the purchasers wrongly as sales tax. It is not disputed, as appears from the final assessment order of the Sales Tax Officer, that the appellant was not liable to pay the amount as sales tax for the relevant period. | 1[ds]It will be seen that S. 11 (1) forbids an unregistered dealer from collecting any amount by way of tax under the Act. That provision however does not apply in the present case, for the appellant is admittedly a registered dealer. Further S. 11 (1) lays down that a registered dealer shall not make any such collection before May 1, 1950, except in accordance with such conditions and restrictions, if any, as may be prescribed. This provision again does not apply, for we are not concerned here with any collection made by the appellant before May 1, 1950. The prohibition therefore of S. 11 (1) did not apply to the appellant. Then comes S. 11 (2). It applies to collections made after May 1, 1950 by any person whether a registered dealer or otherwise and lays down that any amount collected by way of tax otherwise than in accordance with the provisions of the Act shall be paid over to the Government and in default of such payment, the said amount shall be recovered from such person as if it were arrears of land revenue. It is clear from the words "otherwise than in accordance with the provisions of this Act that though the amount may have been collected by way of tax it was not exigible as tax under the Act. Section 11 (2) thus provides that amounts collected by way of tax though not exigible as tax under the Act shall be paid over to Government, and if not paid over they shall be recovered from such person as if they were arrears of land revenue. Clearly therefore S. 11 (2) as it stands provides for recovery of an amount collected by way of tax as arrears of land revenue though the amount was not due as tax under theit is clear that the sums so collected by way of tax are not in fact tax exigible under the Act. So it cannot be said that the State legislature was directly legislating for the imposition of sales or purchase tax under Entry 54 of List II when it made such provision, for on the face of the provision, the amount, though collected by way of tax, was not exigible as tax under the law. The provision however is attempted to be justified on the ground that though it may not be open to a State legislature to make provision for the recovery of an amount which is not a tax under Entry 54 of List II in a law made for that purpose, it would still be open to the legislature to prove for paying over all the amounts collected by way of tax by persons, even though they really are not exigible as tax, as part of the incidental and ancillary power to make provision for the levy and collection of such tax. Now there is no dispute that the heads of legislation in the various Lists in the Seventh Schedule should be interpreted widely so as to take in all matters which are of a character incidental to the topics mentioned therein. Even so, there is a limit to such incidental or ancillary power flowing from the legislative entries in the various Lists in the Seventh Schedule. These incidental and ancillary powers have to be exercised in aid of the main topic of legislation, which in the present case, is a tax on sale or purchase of goods. All powers necessary for the levy and collection of the tax concerned and for seeing that the tax is not evaded are comprised within the ambit of the legislative entry as ancillary or incidental. But where the legislation under the relevant entry proceeds on the basis that the amount concerned is not a tax exigible under the law made under that entry, but even so lays down that though it is not exigible under the law, it shall be paid over to Government, merely because some dealers by mistake or otherwise have collected it as tax, it is difficult to see how such a provision can be ancillary or incidental to the collection of tax legitimately due under a law made under the relevant taxing entry. We do not think that the ambit of ancillary or incidental power goes to the extent of permitting the legislature to provide that though the amount collected-may be wrongly-by way of tax is not exigible under the law as made under the relevant taxing entry, it shall still be paid over to Government, as if it were a tax. The legislature cannot under Entry 54 of List II make a provision to the effect that even though a certain amount collected is not a tax on the sale or purchase of goods as laid down by the law, it will still be collected as if it was such a tax. This is what S. 11 (2) has provided. Such a provision cannot in our opinion be treated as coming within incidental or ancillary powers which the legislature has got under the relevant taxing entry to ensure that the tax is levied and collected and that its evasion becomes impossible. We are therefore of opinion that the provision contained in S. 11 (2) cannot be made under Entry 54 of List II and cannot be justified even as an incidental or ancillary provision permitted under thatimposed under taking statutes are generally with respect to attempts at evasion of taxes or to default in the payment of taxes properly levied (see Ss. 28 and 46 of the Indian Income-tax Act, 1922). The Act also provides for penalties, for example, S. 19 and S. 20. The latter section makes certain acts or omissions of an assessee offences punishable by a Magistrate subject to composition under S. 21. Section 11(2) in our opinion has nothing to do with penalties and cannot be justified as a penalty on the dealer. Actually S. 20 makes provision in cl. (b) for penalty in case of breach of S. 11 (1) and makes the person committing a branch of that provision liable, on conviction by a Magistrate of the first class, to a fine. We are therefore of opinion that S. 11 (2) cannot be justified under Entry 54 of List II either as a provision for levying the tax or as an incidental or ancillary provision relating to the collection of tax. In this connection we may refer to cl. (c) of S. 20, which provides that any person who fails "to pay the amounts specified in sub-sec. (2) of S. 11 within the prescribed time shall on a conviction by a Magistrate be liable to fine. It is remarkable that this provision makes the persons punishable for his failure to pay the amount which is not authorised as a tax at all under the law, to Government. It does not provide for a penalty for collecting the amount wrongly by way of tax from purchasers which may have been justified as a penalty for the purpose of carrying out the objects of the taxing legislation. If a dealer has collected anything from a purchaser which is not authorised by the taxing law, that is a matter between him and the purchaser, and the purchaser may be entitled to recover the amount from the dealer. But unless the money so collected is due as a tax, the State cannot by law make it recoverable simply because it has been wrongly collected by the dealer. This cannot be done directly for it is not a tax at all within the meaning of Entry 54 of List II nor can the State legislature under the guise of incidental or ancillary power do indirectly what it cannot do directly. We are therefore of opinion that S. 11 (2) is not within the competence of the State legislature under Entry 54 of Listentry deals with "trade and commerce within the state subject to the provisions of Entry 33 of List III. It is well settled that taxing entries in the legislative Lists I and II of the Seventh Schedule are entirely separate from other entries. Entry 26 of List II deals with trade and commerce and has nothing to do with taxing or recovering amounts realised wrongly as tax. It is said that S. 11 (2) regulates trade and commerce and the State legislature therefore was competent under Entry 26 of List II to enact it. We have not been able to understand what such a provision has to do with the regulation of trade and commerce; it can only be justified as a provision ancillary to a taxing statute. If it cannot be so justified-as we hold that it cannot-we are unable to uphold it as regulating trade and commerce under Entry 26 of List II. There is in our opinion no element of regulation of trade and commerce in a provision like S. 11(2).9. We are therefore of opinion that the State legislature was incompetent to enact a provision like S. 11 (2). We may also add that the provision contained in S. 20(c), being consequential to S. 11 (2) will fall along with it. In consequence it was not open to the Sales Tax Officer to ask the appellant to make over what he had collected from the purchasers wrongly as sales tax. It is not disputed, as appears from the final assessment order of the Sales Tax Officer, that the appellant was not liable to pay the amount as sales tax for the relevant period. | 1 | 3,340 | 1,741 | ### 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:
time shall on a conviction by a Magistrate be liable to fine. It is remarkable that this provision makes the persons punishable for his failure to pay the amount which is not authorised as a tax at all under the law, to Government. It does not provide for a penalty for collecting the amount wrongly by way of tax from purchasers which may have been justified as a penalty for the purpose of carrying out the objects of the taxing legislation. If a dealer has collected anything from a purchaser which is not authorised by the taxing law, that is a matter between him and the purchaser, and the purchaser may be entitled to recover the amount from the dealer. But unless the money so collected is due as a tax, the State cannot by law make it recoverable simply because it has been wrongly collected by the dealer. This cannot be done directly for it is not a tax at all within the meaning of Entry 54 of List II nor can the State legislature under the guise of incidental or ancillary power do indirectly what it cannot do directly. We are therefore of opinion that S. 11 (2) is not within the competence of the State legislature under Entry 54 of List II.6. The respondent in this connection relies on the decision of this Court in Orient Paper Mills Ltd. v. State of Orissa. (1962) 1 SCR 549 : (AIR 1961 SC 1438 ). That case in our opinion has no application to the facts of the present case. In that case the dealer had been assessed to tax and had paid the tax. Later in view of the judgment of this Court in State of Bombay v. United Motors (India) Ltd., 1953 SCR 1069 : (AIR 1953 SC 252 ) the amounts paid in respect of goods despatched for consumption outside the State were held to be not taxable. The dealer then applied for refund of tax, which was held to be not exigible. The refund was refused and the dealer went to the High Court by a writ petition claiming that it was entitled to refund under S. 14 of the Orissa Sales tax Act (which was the law under consideration in that case). The High Court allowed the petition in part and there were appeals to this Court both by the dealer and the State. In the meantime, the Orissa legislature amended the law, by introducing S. 14A. in the principal Act, which provided that refund could be claimed only by a person from whom the dealer had actually realised the amount as tax. That provision was challenged in this Court but was upheld on the ground that it came within the incidental power arising out of Entry 54 of List II. That matter dealt with a question of refund and it cannot be doubted that refund of the tax collected is always a matter covered by incidental and ancillary powers relating to the levy and collection of tax. We are not dealing with a case of refund in the present case. What S. 11(2) provides is that something collected by way of tax, though it is not really due as a tax under the law enacted under Entry 54 of List II must be paid to the Government. This situation in our opinion is entirely different from the situation in the Orient Paper Mills Limiteds case, (1962) 1 SCR 549 : (AIR 1961 SC 1438 ).7. The respondent further relies on a decision of the Madras High Court in Indian Aluminium Co. Ltd., Calcutta v. State of Madras, 1962-13 STC 967 : (AIR 1963 Mad 116 ). That decision was with respect to S. 8-B of the Madras General Sales Tax Act of 1939 as amended by Madras Act 1 of 1957. Though the words in S. 8-B (2) were not exactly the same as the words in S. 11 (2), with which we are concerned here, the provision in substance was to the same effect as S. 11 (2). In view of what we have said above, that decision must be held to be incorrect.8. Lastly, we come to the contention of the respondent that S. 11 (2) is within the legislative competence of the State legislature in view of Entry 26 of List II. They entry deals with "trade and commerce within the state subject to the provisions of Entry 33 of List III. It is well settled that taxing entries in the legislative Lists I and II of the Seventh Schedule are entirely separate from other entries. Entry 26 of List II deals with trade and commerce and has nothing to do with taxing or recovering amounts realised wrongly as tax. It is said that S. 11 (2) regulates trade and commerce and the State legislature therefore was competent under Entry 26 of List II to enact it. We have not been able to understand what such a provision has to do with the regulation of trade and commerce; it can only be justified as a provision ancillary to a taxing statute. If it cannot be so justified-as we hold that it cannot-we are unable to uphold it as regulating trade and commerce under Entry 26 of List II. There is in our opinion no element of regulation of trade and commerce in a provision like S. 11(2).9. We are therefore of opinion that the State legislature was incompetent to enact a provision like S. 11 (2). We may also add that the provision contained in S. 20(c), being consequential to S. 11 (2) will fall along with it. In consequence it was not open to the Sales Tax Officer to ask the appellant to make over what he had collected from the purchasers wrongly as sales tax. It is not disputed, as appears from the final assessment order of the Sales Tax Officer, that the appellant was not liable to pay the amount as sales tax for the relevant period.
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### Explanation:
seeing that the tax is not evaded are comprised within the ambit of the legislative entry as ancillary or incidental. But where the legislation under the relevant entry proceeds on the basis that the amount concerned is not a tax exigible under the law made under that entry, but even so lays down that though it is not exigible under the law, it shall be paid over to Government, merely because some dealers by mistake or otherwise have collected it as tax, it is difficult to see how such a provision can be ancillary or incidental to the collection of tax legitimately due under a law made under the relevant taxing entry. We do not think that the ambit of ancillary or incidental power goes to the extent of permitting the legislature to provide that though the amount collected-may be wrongly-by way of tax is not exigible under the law as made under the relevant taxing entry, it shall still be paid over to Government, as if it were a tax. The legislature cannot under Entry 54 of List II make a provision to the effect that even though a certain amount collected is not a tax on the sale or purchase of goods as laid down by the law, it will still be collected as if it was such a tax. This is what S. 11 (2) has provided. Such a provision cannot in our opinion be treated as coming within incidental or ancillary powers which the legislature has got under the relevant taxing entry to ensure that the tax is levied and collected and that its evasion becomes impossible. We are therefore of opinion that the provision contained in S. 11 (2) cannot be made under Entry 54 of List II and cannot be justified even as an incidental or ancillary provision permitted under thatimposed under taking statutes are generally with respect to attempts at evasion of taxes or to default in the payment of taxes properly levied (see Ss. 28 and 46 of the Indian Income-tax Act, 1922). The Act also provides for penalties, for example, S. 19 and S. 20. The latter section makes certain acts or omissions of an assessee offences punishable by a Magistrate subject to composition under S. 21. Section 11(2) in our opinion has nothing to do with penalties and cannot be justified as a penalty on the dealer. Actually S. 20 makes provision in cl. (b) for penalty in case of breach of S. 11 (1) and makes the person committing a branch of that provision liable, on conviction by a Magistrate of the first class, to a fine. We are therefore of opinion that S. 11 (2) cannot be justified under Entry 54 of List II either as a provision for levying the tax or as an incidental or ancillary provision relating to the collection of tax. In this connection we may refer to cl. (c) of S. 20, which provides that any person who fails "to pay the amounts specified in sub-sec. (2) of S. 11 within the prescribed time shall on a conviction by a Magistrate be liable to fine. It is remarkable that this provision makes the persons punishable for his failure to pay the amount which is not authorised as a tax at all under the law, to Government. It does not provide for a penalty for collecting the amount wrongly by way of tax from purchasers which may have been justified as a penalty for the purpose of carrying out the objects of the taxing legislation. If a dealer has collected anything from a purchaser which is not authorised by the taxing law, that is a matter between him and the purchaser, and the purchaser may be entitled to recover the amount from the dealer. But unless the money so collected is due as a tax, the State cannot by law make it recoverable simply because it has been wrongly collected by the dealer. This cannot be done directly for it is not a tax at all within the meaning of Entry 54 of List II nor can the State legislature under the guise of incidental or ancillary power do indirectly what it cannot do directly. We are therefore of opinion that S. 11 (2) is not within the competence of the State legislature under Entry 54 of Listentry deals with "trade and commerce within the state subject to the provisions of Entry 33 of List III. It is well settled that taxing entries in the legislative Lists I and II of the Seventh Schedule are entirely separate from other entries. Entry 26 of List II deals with trade and commerce and has nothing to do with taxing or recovering amounts realised wrongly as tax. It is said that S. 11 (2) regulates trade and commerce and the State legislature therefore was competent under Entry 26 of List II to enact it. We have not been able to understand what such a provision has to do with the regulation of trade and commerce; it can only be justified as a provision ancillary to a taxing statute. If it cannot be so justified-as we hold that it cannot-we are unable to uphold it as regulating trade and commerce under Entry 26 of List II. There is in our opinion no element of regulation of trade and commerce in a provision like S. 11(2).9. We are therefore of opinion that the State legislature was incompetent to enact a provision like S. 11 (2). We may also add that the provision contained in S. 20(c), being consequential to S. 11 (2) will fall along with it. In consequence it was not open to the Sales Tax Officer to ask the appellant to make over what he had collected from the purchasers wrongly as sales tax. It is not disputed, as appears from the final assessment order of the Sales Tax Officer, that the appellant was not liable to pay the amount as sales tax for the relevant period.
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